Treasury and Finance Legislation (Amendment) Act 2004

Victorian Legislation and Parliamentary Documents i Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 3 PART 2—ACCIDENT COMPENSATION ACT 1985 4 3. Independent contractors 4 PART 3—ACCIDENT COMPENSATION (WORKCOVER INSURANCE) ACT 1993 5 4. Application by employer to review premium 5 5. New section 22A inserted 6 22A. Application for refund of premium 6 6. Review of premium 7 7. Adjustment to premium after review 8 8. New sections 28A and 28B inserted 9 28A. Review of premium in certain circumstances 9 28B. Adjustment of premium after section 28A review 10 9. Notice of adjustment 11 10. New section 31A inserted 11 31A. Refunds 11 11. Authority may recover amount in relation to claim 12 12. New section 66 substituted 12 66. Groups 12 13. New section 66A inserted 19 66A. Joint and several liability of group members 19 14. Section 67 repealed 20 15. Supreme Court—limitation of jurisdiction 20 PART 4—EMERGENCY SERVICES SUPERANNUATION ACT 1986 21 16. Amendment of section 20E 21 17. New section 22EA inserted 21 22EA. Accrued benefit multiple 21 -- 1 of 67 -- Victorian Legislation and Parliamentary Documents Section Page ii PART 5—GOVERNMENT SUPERANNUATION ACT 1999 22 18. Member contributions—MTA Superannuation Fund 22 PART 6—PROFESSIONAL STANDARDS ACT 2003 25 19. Amendment of section 5 25 PART 7—STATE EMPLOYEES RETIREMENT BENEFITS ACT 1979 26 20. Amendments relating to retirement savings accounts 26 21. Definition of "eligible salary sacrifice contributor" inserted in section 2(1) 27 22. New section 2A inserted 27 2A. Declaration of eligible salary sacrifice contributors 27 23. Member contribution rates 28 24. Amendment of section 36 29 25. Consequential amendment of section 37 29 26. Section 65 amended 30 27. New section 70B inserted 33 70B. Payment of benefits if person incapable 33 PART 8—STATE SUPERANNUATION ACT 1988 35 28. Amendments relating to retirement savings accounts 35 29. Definition of "eligible salary sacrifice contributor" inserted in section 3(1) 37 30. New section 3A inserted 37 3A. Declaration of eligible salary sacrifice contributors 37 31. Contribution rates—original scheme members 38 32. Contribution rates—revised scheme members 40 33. Contribution rates—new scheme members 42 34. Sections 61B and 61C repealed 43 35. Section 71 substituted 43 71. Minimum benefit 43 36. Amendment of section 76 48 37. New section 81 inserted 48 81. Power to recover 48 38. Contribution rates—transferred members 49 PART 9—SUPERANNUATION (PORTABILITY) ACT 1989 52 39. Amendments relating to retirement savings accounts 52 40. Amendment of section 7 52 -- 2 of 67 -- Victorian Legislation and Parliamentary Documents Section Page iii PART 10—TRANSPORT SUPERANNUATION ACT 1988 53 41. Amendments relating to retirement savings accounts 53 42. Definition of "eligible salary sacrifice contributor" inserted in section 3(1) 54 43. New section 3A inserted 54 3A. Declaration of eligible salary sacrifice contributors 54 44. Contributions by members 54 45. Section 35A substituted 56 35A. Minimum benefit 56 46. New section 49A inserted 59 49A. Power to recover 59 PART 11—VICTORIAN MANAGED INSURANCE AUTHORITY ACT 1996 60 47. Amendment of section 3 60 48. Amendment of section 7 60 49. New section 20A inserted 61 20A. Repayment or raising of capital 61 50. Amendment of section 24 61 51. New section 25B inserted 62 25B. Authority may determine conditions 62 52. Repeal of spent provisions 63 ═══════════════ ENDNOTES 64 -- 3 of 67 -- Victorian Legislation and Parliamentary Documents 1 Treasury and Finance Legislation (Amendment) Act 2004† [Assented to 8 June 2004] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to— (a) make a consequential amendment to the Accident Compensation Act 1985; Victoria No. 40 of 2004 -- 4 of 67 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 2 (b) amend the Accident Compensation (WorkCover Insurance) Act 1993— (i) to place a time limit on the ability of an employer to recover amounts purportedly paid as premium for past policy years; and (ii) to replace the grouping provisions with provisions equivalent to the Victorian pay-roll grouping provisions contained in the Pay-roll Tax Act 1971; and (iii) to reintroduce a joint and several liability provision for employers who are members of a group as a means of strengthening the enforcement provisions of the Act; and (iv) to enable the Victorian WorkCover Authority to exercise a discretion to partially waive an employer's liability for reimbursement of uninsured claims costs; (c) make miscellaneous amendments to specified Superannuation Acts to facilitate the administration of superannuation funds; (d) amend section 5 of the Professional Standards Act 2003 so that the Act will apply to liability for damages arising from a breach of fiduciary duty; (e) amend the Victorian Managed Insurance Authority Act 1996 to enhance the prudent management of risk across the public sector. s. 1 -- 5 of 67 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 3 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on the day after the day on which it receives the Royal Assent. (2) Sections 4 to 10 and section 15 are deemed to have come into operation on 6 May 2004. __________________ s. 2 -- 6 of 67 -- Victorian Legislation and Parliamentary Documents Part 2—Accident Compensation Act 1985 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 4 PART 2—ACCIDENT COMPENSATION ACT 1985 3. Independent contractors In section 9(1)(c) of the Accident Compensation Act 1985, for "section 196 of this Act or section 67" substitute "section 66". __________________ s. 3 -- 7 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 5 PART 3—ACCIDENT COMPENSATION (WORKCOVER INSURANCE) ACT 1993 4. Application by employer to review premium (1) After section 22(1) of the Accident Compensation (WorkCover Insurance) Act 1993 insert— "(1A) An application under sub-section (1) may only be made in relation to premium for— (a) the policy period current at the date on which the application is made; (b) any of the 4 completed policy periods before that period.". (2) After section 22(2) of the Accident Compensation (WorkCover Insurance) Act 1993 insert— '(3) In this section "premium" includes amounts— (a) paid or payable as premium; (b) purportedly paid or payable as premium; (c) paid or payable as a default penalty, late payment penalty, interest or otherwise in respect of an amount paid or payable or purportedly paid or payable as premium; (d) purportedly paid or payable as a default penalty, late payment penalty, interest or otherwise in respect of an amount paid or payable or purportedly paid or payable as premium. See: Act No. 50/1993. Reprint No. 5 as at 30 June 1999 and amending Act Nos 26/2000, 54/2000, 44/2001, 82/2001 and 95/2003. LawToday: www.dms. dpc.vic. gov.au s. 4 -- 8 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 6 (4) If, in the course of a review under this section, the Authority determines that, in respect of any of the policy periods to which the application relates, there has been an adjustment to the premium which the Authority was not authorised to make, the Authority must discontinue that review and review the application under section 28A as if the application had been an application under section 22A.'. 5. New section 22A inserted After section 22 of the Accident Compensation (WorkCover Insurance) Act 1993 insert— '22A. Application for refund of premium (1) Proceedings for the refund or recovery of premium, whether paid before or after 6 May 2004, must not be brought, whether against the Authority or otherwise, except as provided in this section. (2) If an employer claims to be entitled to receive a refund of or to recover premium, the employer must lodge with the Authority an application, in a form approved by the Authority, for the refund of the payment. (3) An application under sub-section (2) may only be made in relation to premium for— (a) the policy period current at the date on which the application is made; (b) any of the 4 completed policy periods before that period. (4) This section does not apply to a written request for a refund of premium received by the Authority before 6 May 2004. s. 5 -- 9 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 7 (5) For the purposes of sub-section (4), a written request received by an authorised agent of the Authority is not to be taken to be received by the Authority unless the authorised agent has forwarded the request to the Authority, and the Authority has received that request, before 6 May 2004. (6) In this section— "premium" has the same meaning as in section 22(3); "proceedings" includes— (a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or (b) seeking any order under the Administrative Law Act 1978.'. 6. Review of premium After section 27(2) of the Accident Compensation (WorkCover Insurance) Act 1993 insert— "(3) If, in the course of a review under this section, the Authority determines that, in respect of any of the policy periods to which the review relates, there has been an adjustment to the premium which the Authority was not authorised to make, the Authority must discontinue that review and conduct a review under section 28A as if an application under section 22A had been made. s. 6 -- 10 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 8 (4) If the Authority makes a determination under sub-section (3) it must, by notice in writing, advise the employer of that determination.". 7. Adjustment to premium after review After section 28(2) of the Accident Compensation (WorkCover Insurance) Act 1993 insert— "(3) In the case of a review under section 28A, an adjustment under this section may only relate to— (a) in the case of an application under section 22 or 22A— (i) the policy period current at the date on which the application is made; (ii) any of the 4 completed policy periods before that period; (iii) any other completed policy period if there is, or was, fraud on the part of the employer or of any person acting, or apparently acting, on the employer's behalf; (b) in the case of a review in which the Authority has made a determination under section 27(3)— (i) the policy period current at the date of the notice under section 27(4); (ii) any of the 4 completed policy periods before that date; s. 7 -- 11 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 9 (iii) any other completed policy period if there is, or was, fraud on the part of the employer or of any person acting, or apparently acting, on the employer's behalf.". 8. New sections 28A and 28B inserted After section 28 of the Accident Compensation (WorkCover Insurance) Act 1993 insert— '28A. Review of premium in certain circumstances (1) This section applies if— (a) an employer makes an application under section 22A and the Authority was not authorised to adjust the premium in respect of which the application relates, at the time the Authority made the adjustment; or (b) the Authority has made a determination under section 22(4) or 27(3). (2) The Authority may review the amount calculated as a premium in respect of premium for— (a) in the case of a determination under section 22(4) or an application under section 22A— (i) the policy period current at the date on which the application is made; (ii) any of the 4 completed policy periods before that period; s. 8 -- 12 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 10 (b) in the case of a determination under section 27(3)— (i) the policy period current at the date of the notice under section 27(4); (ii) any of the 4 completed policy periods before that date. (3) In conducting the review, the Authority may have regard to any matter relevant to the determination or calculation of the premium. (4) In this section "premium" has the same meaning as in section 22(3). 28B. Adjustment of premium after section 28A review (1) After conducting a review under section 28A, the Authority must determine— (a) the reviewed assessment amount for the relevant period; and (b) the total premium payment; and (c) any deficit amount or excess amount. (2) The Authority must, by notice in writing to the employer— (a) specify— (i) the amount determined to be the reviewed assessment amount and the total premium payment; and (ii) whether there is a deficit amount or an excess amount; and (b) adjust the amount of the premium so that the amount is the reviewed assessment amount. s. 8 -- 13 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 11 (3) In this section— "deficit amount" means the amount by which the reviewed assessment amount exceeds the total premium payment; "excess amount" means the amount by which the total premium payment exceeds the reviewed assessment amount; "premium" has the same meaning as in section 22(3); "relevant period" means the total period specified in section 28A(2)(a) or 28A(2)(b); "reviewed assessment amount" means the sum of the amounts which should have been calculated for each applicable premium order for the relevant period; "total premium payment" means the total amount paid as premium during the relevant period.'. 9. Notice of adjustment In section 29(1) of the Accident Compensation (WorkCover Insurance) Act 1993, for "26(4) or 28(2)" substitute "26(4), 28(2) or 28B(2)". 10. New section 31A inserted After section 31 of the Accident Compensation (WorkCover Insurance) Act 1993 insert— "31A. Refunds If, as a result of a review under section 28A the Authority determines there is an excess amount within the meaning of section 28B, the Authority— s. 9 -- 14 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 12 (a) must refund that excess amount to the employer; or (b) must— (i) apply that excess amount against any liability of the employer to the Authority under this Act; and (ii) refund to the employer any part of that excess amount that is not so applied.". 11. Authority may recover amount in relation to claim In section 61(2) of the Accident Compensation (WorkCover Insurance) Act 1993, after "waive" insert "all or part of". 12. New section 66 substituted For section 66 of the Accident Compensation (WorkCover Insurance) Act 1993 substitute— '66. Groups (1) For the purposes of this Act, if— (a) an employer that is a body corporate and another body corporate ("related person") are, by reason of section 50 of the Corporations Act related to each other; or (b) one or more workers of an employer perform duties for or in connection with one or more businesses carried on by the employer and one or more other persons ("associates"); or s. 11 -- 15 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 13 (c) one or more workers of an employer are employed solely or mainly to perform duties for or in connection with one or more businesses carried on by one or more other persons ("associates"); or (d) one or more workers of an employer perform duties for or in connection with one or more businesses carried on by one or more other persons ("associates"), being duties performed in connection with, or in fulfilment of the employer's obligation under, an agreement, arrangement or undertaking for the provision of services to any one or more of the associates in connection with that business or those businesses— (i) whether the agreement, arrangement or undertaking is formal or informal, express or implied; and (ii) whether or not the agreement, arrangement or undertaking provides for duties to be performed by the workers or specifies the duties to be performed by them— the employer and all persons who are related persons or associates in relation to that employer together constitute a group and each is a member of that group. Note: Sub-section (8) allows the Authority to exclude members from a group constituted under this sub-section in certain circumstances. s. 12 -- 16 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 14 (2) If the same person has, or the same persons have together, a controlling interest under sub-section (3) in each of two businesses, the persons who carry on those businesses constitute a group and each is a member of the group. Note: Sub-section (8) allows the Authority to exclude members from a group constituted under this sub-section in certain circumstances. (3) For the purposes of sub-section (2), the same person has, or the same persons have together, a controlling interest in each of two businesses if that person has, or those persons have together, a controlling interest under any of the following paragraphs in one of the businesses and a controlling interest under the same or another of the following paragraphs in the other business— (a) a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation, if the directors, or a majority of the directors, or one or more of the directors, being a director or directors who is or are entitled to exercise a majority in voting power at meetings of the directors, of the corporation are or is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that person or of those persons acting together; (b) a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation that has a share capital, if that person or those persons acting s. 12 -- 17 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 15 together may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, 50 per cent or more of the voting power attached to voting shares, or any class of voting shares, issued by the corporation; (c) a person has, or persons have together, a controlling interest in a business if that person, or those persons together— (i) constitute more than 50 per cent of the board of management (by whatever name called) of the body corporate or unincorporate carrying on the business; or (ii) control the composition of that board; (d) a person has, or persons have together, a controlling interest in a business, being a business carried on by a partnership, if that person or those persons— (i) owns, or own together, (whether or not beneficially) 50 per cent or more of the capital of the partnership; or (ii) is, or are together, entitled (whether or not beneficially) to 50 per cent or more of any profits of the partnership; (e) a person has, or persons have together, a controlling interest in a business, being a business carried on under a trust, if that person (whether or not as the trustee of, or beneficiary under, another trust) is the beneficiary, or s. 12 -- 18 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 16 those persons (whether or not as the trustees of, or beneficiaries under, another trust) are together the beneficiaries, in respect of 50 per cent or more of the value of the interests in the trust first-mentioned in this paragraph; (f) a person has a controlling interest in a business if, whether or not the person is a trustee of a trust, the person is the sole owner of the business or persons, being two or more trustees of a trust, have a controlling interest in a business if they are the owners of the business. (4) A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust or by any other person or by that trustee and other person, may benefit under that trust is deemed, for the purposes of this Act, to be a beneficiary in respect of 50 per cent or more of the value of the interests in that trust. (5) If a body corporate has a controlling interest under sub-section (3) in a business, it is deemed, for the purposes of sub-section (3), to have a controlling interest in any other business in which another body corporate that is, by reason of section 50 of the Corporations Act, related to it, has a controlling interest. (6) If— (a) a person has, or persons have together, a controlling interest under sub- section (3) in a business; and s. 12 -- 19 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 17 (b) the person or persons who carries or carry on that business has or have such a controlling interest in another business— the person or persons referred to in paragraph (a) are deemed, for the purposes of sub-section (3), to have a controlling interest in the business referred to in paragraph (b). (7) If— (a) a person is a beneficiary under a trust; or (b) two or more persons together are beneficiaries under a trust— in respect of 50 per cent or more of the value of the interests in that trust and the trustee or trustees of that trust has or have under sub-section (3) a controlling interest in a business, that beneficiary or those beneficiaries are deemed, for the purposes of sub-section (3) to have a controlling interest in that business. (8) If the Authority is satisfied, having regard to the nature and degree of ownership and control of the businesses, the nature of the businesses and any other matters the Authority considers relevant, that a business carried on by a member of a group, other than a group constituted by reason of sub- section (10), is carried on independently of, and is not connected with the carrying on of, a business carried on by any other member of that group, the Authority may exclude the member from that group. s. 12 -- 20 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 18 (9) The Authority must not, under sub- section (8), exclude a person from a group if the person is a body corporate that, by reason of section 50 of the Corporations Act, is related to another body corporate that is a member of that group. (10) Subject to sub-section (11), for the purposes of this section, if an employer is a member of a group and that person or another member of that group is a member of another group, a person who is a member of that other group is— (a) deemed to be a member of the first- mentioned group; and (b) called an "associate". (11) Sub-section (10) does not apply if a person satisfies the Authority that— (a) the trade, business or profession carried on by that person is carried on independently of, and is not connected with the carrying on of a trade, business or profession carried on by a member of the first-mentioned group; and (b) that trade, business or profession is not carried on with an intention, either directly or indirectly, of reducing the amount of premium payable by that person or another member of the group. (12) In this section— "business" includes— (a) a trade or profession; and (b) any other activity carried on for fee, gain or reward; and s. 12 -- 21 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 19 (c) the activity— (i) of employing one or more persons if that person performs, or those persons perform, duties for or in connection with another business; or (ii) of holding any money, property or shares used for or in connection with another business; "person" includes a body or association (corporate or unincorporate) and a partnership. (13) This section applies whether or not an employer became a member of the group before, on or after the commencement of section 12 of the Treasury and Finance Legislation (Amendment) Act 2004. (14) This section does not affect the calculation of premium for any period before 1 July 2004.'. 13. New section 66A inserted After section 66 of the Accident Compensation (WorkCover Insurance) Act 1993 insert— '66A. Joint and several liability of group members (1) A person who, during a period, is or was a member of a group within the meaning of section 66 is jointly and severally liable with the other persons who are or were members of the group during that period to pay premium and penalties payable by members of that group in respect of that period. s. 13 -- 22 of 67 -- Victorian Legislation and Parliamentary Documents Part 3—Accident Compensation (WorkCover Insurance) Act 1993 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 20 (2) For the avoidance of doubt, sub-section (1) applies whether or not— (a) the person was an employer during the relevant period; (b) an employer became a member of the group before, on or after the commencement of section 13 of the Treasury and Finance Legislation (Amendment) Act 2004. (3) Sub-section (1) does not apply to a premium or penalty payable by the group before the commencement of section 13 of the Treasury and Finance Legislation (Amendment) Act 2004. (4) In this section "person" includes a body or association (corporate or unincorporate) and a partnership.'. 14. Section 67 repealed Section 67 of the Accident Compensation (WorkCover Insurance) Act 1993 is repealed. 15. Supreme Court—limitation of jurisdiction At the end of section 77 of the Accident Compensation (WorkCover Insurance) Act 1993 insert— "(2) It is the intention of section 22A as inserted by section 5 of the Treasury and Finance Legislation (Amendment) Act 2004 to alter or vary section 85 of the Constitution Act 1975.". __________________ s. 14 -- 23 of 67 -- Victorian Legislation and Parliamentary Documents Part 4—Emergency Services Superannuation Act 1986 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 21 PART 4—EMERGENCY SERVICES SUPERANNUATION ACT 1986 16. Amendment of section 20E In section 20E(2) of the Emergency Services Superannuation Act 1986, after "death of a contributor" insert "who is an operational staff member at or after the age of 55, or if not an operational staff member". 17. New section 22EA inserted After section 22E of the Emergency Services Superannuation Act 1986 insert— "22EA. Accrued benefit multiple For the purpose of regulation 65 of the Commonwealth Family Law (Superannuation) Regulations 2001, the Board on the advice of an actuary appointed by the Board may from time to time determine the accrued benefit multiple.". __________________ See: Act No. 94/1986. Reprint No. 5 as at 15 October 2003. LawToday: www.dms. dpc.vic. gov.au s. 16 -- 24 of 67 -- Victorian Legislation and Parliamentary Documents Part 5—Government Superannuation Act 1999 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 22 PART 5—GOVERNMENT SUPERANNUATION ACT 1999 18. Member contributions—MTA Superannuation Fund After section 42(8) of the Government Superannuation Act 1999 insert— '(9) In this section, "eligible salary sacrifice contributor" means an employee in respect of whom a declaration is in force under sub- section (10). (10) The Minister may by notice published in the Government Gazette declare— (a) an employee to be an eligible salary sacrifice contributor from the date specified in the notice; or (b) a class of employees to be eligible salary sacrifice contributors from the date specified in the notice. (11) An eligible salary sacrifice contributor may by notice in writing to his or her employer elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— R 1 M − where— "M" is the applicable member contribution rate in accordance with the provisions of the governing instrument of the MTA Superannuation Fund without salary sacrifice; See: Act No. 8/1999. Reprint No. 1 as at 10 May 2001 and amending Act No. 70/2003. LawToday: www.dms. dpc.vic. gov.au s. 18 -- 25 of 67 -- Victorian Legislation and Parliamentary Documents Part 5—Government Superannuation Act 1999 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 23 "R" is the tax rate for the financial year on taxable contributions to the MTA Superannuation Fund under the Commonwealth Income Tax Assessment Act 1936. (12) An election under sub-section (11)— (a) can only be made if there is in force an agreement between the employer and the employee under which the employer can make the member contributions required by the provisions of the governing instrument of the MTA Superannuation Fund by way of salary sacrifice; (b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a); (c) can only be made in respect of the whole of the member contributions; (d) can not be made in respect of any contributions made by an employee in addition to the applicable member contributions under the provisions of the governing instrument of the MTA Superannuation Fund. (13) Member contributions made in accordance with the rate determined under sub-section (11) are for the purposes of the provisions of the governing instrument of the MTA Superannuation Fund (other than the provisions relating to surchargeable contributions) to be taken to be— (a) the applicable member contributions to be paid under the provisions of the governing instrument of the MTA Superannuation Fund; and s. 18 -- 26 of 67 -- Victorian Legislation and Parliamentary Documents Part 5—Government Superannuation Act 1999 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 24 (b) the member contributions that would have been payable if an election had not been made under sub-section (11). (14) An election under sub-section (11) does not affect the amount that would otherwise constitute the salary of the employee for the purposes of the provisions of the governing instrument of the MTA Superannuation Fund. (15) The minimum benefit required to be paid to ensure compliance with the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth is to be determined as if no election had been made under sub- section (11).'. __________________ s. 18 -- 27 of 67 -- Victorian Legislation and Parliamentary Documents Part 6—Professional Standards Act 2003 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 25 PART 6—PROFESSIONAL STANDARDS ACT 2003 19. Amendment of section 5 In section 5(1)(c) of the Professional Standards Act 2003 omit "or of fiduciary duty". __________________ See: Act No. 100/2003. Statute Book: www.dms. dpc.vic. gov.au s. 19 -- 28 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 26 PART 7—STATE EMPLOYEES RETIREMENT BENEFITS ACT 1979 20. Amendments relating to retirement savings accounts (1) In section 2(1) of the State Employees Retirement Benefits Act 1979, after the definition of "resign" insert— ' "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997;'. (2) For section 34AB(3)(b) of the State Employees Retirement Benefits Act 1979 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the member.". (3) For section 37(1B)(b) of the State Employees Retirement Benefits Act 1979 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the member.". (4) For section 38(2A)(b) of the State Employees Retirement Benefits Act 1979 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the member.". See: Act No. 9363. Reprint No. 5 as at 15 October 2003. LawToday: www.dms. dpc.vic. gov.au s. 20 -- 29 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 27 (5) In section 66AA(1) of the State Employees Retirement Benefits Act 1979, the definition of "RSA" is repealed. 21. Definition of "eligible salary sacrifice contributor" inserted in section 2(1) In section 2(1) of the State Employees Retirement Benefits Act 1979, after the definition of "domestic partner" insert— ' "eligible salary sacrifice contributor" means a member in respect of whom a declaration is in force under section 2A;'. 22. New section 2A inserted After section 2 of the State Employees Retirement Benefits Act 1979 insert— "2A. Declaration of eligible salary sacrifice contributors The Minister may by notice published in the Government Gazette declare— (a) a member to be an eligible salary sacrifice contributor from the date specified in the notice; or (b) a class of members to be eligible salary sacrifice contributors from the date specified in the notice.". s. 21 -- 30 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 28 23. Member contribution rates After section 23(2) of the State Employees Retirement Benefits Act 1979 insert— '(2A) An eligible salary sacrifice contributor may by notice in writing to his or her employer elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— R 1 M − where— "M" is the applicable member contribution rate in accordance with sub-section (1) without salary sacrifice; "R" is the tax rate for the financial year on taxable contributions to the Fund under the Commonwealth Income Tax Assessment Act 1936. (2B) An election under sub-section (2A)— (a) can only be made if there is in force an agreement between the employer and the member under which the employer can make the member contributions required by this Act by way of salary sacrifice; (b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a); (c) can only be made in respect of the whole of the member contributions; s. 23 -- 31 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 29 (d) can not be made in respect of any contributions made by a member in addition to the member contributions required under sub-section (1). (2C) Member contributions made in accordance with the rate determined under sub-section (2A) are for the purposes of this Act (other than sections 74CA to 74CC) to be taken to be— (a) the member contributions required to be paid under this Act; and (b) the member contributions that would have been payable if an election had not been made under sub-section (2A). (2D) An election under sub-section (2A) does not affect the amount that would otherwise constitute the salary of the member for the purposes of this Act.'. 24. Amendment of section 36 In section 36 of the State Employees Retirement Benefits Act 1979, for "prescribed form" substitute "form approved by the Board". 25. Consequential amendment of section 37 Sections 37(3), 37(4) and 37(5) of the State Employees Retirement Benefits Act 1979 are repealed. s. 24 -- 32 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 30 26. Section 65 amended For section 65(2) of the State Employees Retirement Benefits Act 1979 substitute— '(2) Subject to this section, if the total amount of all the benefits paid or payable under this Act in respect of a member or former member is less than the sum of the superannuation guarantee amount and the amount contributed by the member or former member to the Fund and interest as appropriate on the amount contributed at the rate which is the specified rate under section 37(1) up to the date that the member or former member first became entitled to a benefit under this Act other than a temporary benefit, there is to be paid out of the Fund to the member or former member an amount determined by the Board in accordance with the formula— P = A + I where— "P" means the amount to be paid; "I" means interest as appropriate on "A" at the rate which is the specified rate under section 37(1) from the date "A" is calculated until the date that "A" is paid out of the Fund— and where "A" is an amount determined by the Board in accordance with the formula— SGC + MCI – B where— "SGC" means the superannuation guarantee amount; s. 26 -- 33 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 31 "MCI" means the sum of the amount contributed by the member or former member to the Fund and interest as appropriate on the amount contributed at the rate which is the specified rate under section 37(1) up to the date that the member or former member first became entitled to a benefit under this Act other than a temporary benefit less the cost of death and disability benefits as determined by the Board and Commonwealth charges; "B" means the total amount of all the benefits paid or payable in respect of the member or former member. (3) Unless sub-section (4) or (5) applies, for the purposes of this section, the total amount of all the benefits paid or payable in respect of a member or former member is to be determined by the Board as at the date on which the member or former member first became entitled to a benefit under this Act, other than a temporary benefit under section 54, irrespective of when the benefit is payable. (4) If a member or former member becomes entitled to another benefit under this Act other than a temporary benefit under section 54 after having returned to work following a period as a disability pensioner under this Act, the total amount of all the benefits paid or payable in respect of the member or former member is to be determined by the Board as at the date on which the member or former member first s. 26 -- 34 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 32 became entitled to that other benefit under this Act. (5) If a member or former member who had elected to receive all or a part of his or her entitlements under this Act as a deferred benefit— (a) dies before the deferred benefit becomes payable; and (b) does not leave a partner entitled to a pension under this Act— the Board must pay out of the Fund to the legal personal representative of the member or former member, in addition to any amount payable under section 38(3)(b) or 38(3)(c), an amount equal to the superannuation guarantee amount determined by the Board. (6) If the amount of the benefit paid or payable under this Act consists of, or includes, a pension or deferred benefit, the amount of the benefit paid or payable under this Act for the purposes of this section is to be determined by the Board in accordance with a method determined by an actuary appointed by the Board. (7) The Board may determine that an amount determined as payable under this section is to be applied to increase a pension payable to or in respect of a member or former member in a manner determined by the Board after obtaining the advice of an actuary appointed by the Board. (8) Any part of the superannuation guarantee amount which is required to be preserved in accordance with the specified standards must be preserved. s. 26 -- 35 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 33 (9) For the purposes of this section, if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part IVA or otherwise, the minimum benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board. (10) In this section, "superannuation guarantee amount" means the amount determined by the Board after obtaining the advice of an actuary appointed by the Board to be the minimum amount necessary in respect of a member or former member to avoid a superannuation guarantee shortfall within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. (11) The amount determined by the Board for the purpose of sub-section (10) is to be determined as if no election had been made under section 23(2A).'. 27. New section 70B inserted After section 70A of the State Employees Retirement Benefits Act 1979 insert— "70B. Payment of benefits if person incapable If a person who would ordinarily be entitled to receive benefits is— (a) a person who is in the opinion of the Board incapable of managing his or her affairs or of unsound mind; or (b) a patient within the meaning of the Mental Health Act 1986; or s. 27 -- 36 of 67 -- Victorian Legislation and Parliamentary Documents Part 7—State Employees Retirement Benefits Act 1979 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 34 (c) a represented person under the Guardianship and Administration Act 1986— the Board may cause his or her benefits or any part of the benefits to be paid to his or her guardian or administrator or, if there is no guardian or administrator, to a person nominated by the Board for the benefit of that person and his or her dependants or any of them until he or she ceases to be incapable or of unsound mind, a patient or a represented person.". __________________ s. 27 -- 37 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 35 PART 8—STATE SUPERANNUATION ACT 1988 28. Amendments relating to retirement savings accounts (1) In section 3(1) of the State Superannuation Act 1988, after the definition of "revised scheme member's pension" insert— ' "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997;'. (2) For section 47(10)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the revised scheme member.". (3) For section 47(10A)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the person.". (4) For section 58(4)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the new scheme member.". (5) In section 59AA(1) of the State Superannuation Act 1988, the definition of "RSA" is repealed. See: Act No. 50/1988. Reprint No. 5 as at 15 October 2003. LawToday: www.dms. dpc.vic. gov.au s. 28 -- 38 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 36 (6) For section 61(8)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the former revised scheme member.". (7) For section 61A(4)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the revised scheme member.". (8) For section 61A(5)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the new scheme member.". (9) For section 69(4A)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the contributor.". s. 28 -- 39 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 37 (10) For section 94(1E)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the member.". (11) For section 101(5)(b) of the State Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the beneficiary.". 29. Definition of "eligible salary sacrifice contributor" inserted in section 3(1) In section 3(1) of the State Superannuation Act 1988, after the definition of "domestic partner" insert— ' "eligible salary sacrifice contributor" means an officer in respect of whom a declaration is in force under section 3A;'. 30. New section 3A inserted After section 3 of the State Superannuation Act 1988 insert— "3A. Declaration of eligible salary sacrifice contributors The Minister may by notice published in the Government Gazette declare— (a) an officer who is— (i) an original scheme member; or (ii) a revised scheme member; or s. 29 -- 40 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 38 (iii) a new scheme member; or (iv) a member of the Fund as a result of a transfer to the Fund under section 94— to be an eligible salary sacrifice contributor from the date specified in the notice; or (b) a class of officers who are— (i) original scheme members; or (ii) revised scheme members; or (iii) new scheme members; or (iv) members of the Fund as a result of a transfer to the Fund under section 94— to be eligible salary sacrifice contributors from the date specified in the notice.". 31. Contribution rates—original scheme members After section 27(2) of the State Superannuation Act 1988 insert— '(3) An eligible salary sacrifice contributor may by notice in writing to the employing authority elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— R 1 M − where— s. 31 -- 41 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 39 "M" is the applicable member contribution rate in accordance with the Superannuation Act 1958 without salary sacrifice; "R" is the tax rate for the financial year on taxable contributions to the Fund under the Commonwealth Income Tax Assessment Act 1936. (4) An election under sub-section (3)— (a) can only be made if there is in force an agreement between the employing authority and the member under which the employing authority can make the member contributions required by the Superannuation Act 1958 by way of salary sacrifice; (b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a); (c) can only be made in respect of the whole of the member contributions; (d) can not be made in respect of any contributions made by a member in addition to the member contributions required under the Superannuation Act 1958. (5) Member contributions made in accordance with the rate determined under sub- section (3) are for the purposes of the Superannuation Act 1958 (other than the provisions relating to surchargeable contributions) to be taken to be— (a) the member contributions required to be paid under the Superannuation Act 1958; and s. 31 -- 42 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 40 (b) the member contributions that would have been payable if an election had not been made under sub-section (3). (6) An election under sub-section (3) does not affect the amount that would otherwise constitute the salary of the original scheme member for the purposes of the Superannuation Act 1958.'. 32. Contribution rates—revised scheme members For section 28(1) of the State Superannuation Act 1988 substitute— '(1) A revised scheme member must make contributions to the Fund determined in accordance with the following Table: TABLE OF CONTRIBUTIONS Age last birthday Contributions as a percentage of salary 15 years to 29 years 8⋅0% 30 years to 39 years 8⋅5% 40 years to 49 years 9⋅0% 50 years or older 9⋅5% (1A) An eligible salary sacrifice contributor may by notice in writing to the employing authority elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— R 1 M − where— "M" is the applicable member contribution rate in accordance with sub-section (1) without salary sacrifice; s. 32 -- 43 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 41 "R" is the tax rate for the financial year on taxable contributions to the Fund under the Commonwealth Income Tax Assessment Act 1936. (1B) An election under sub-section (1A)— (a) can only be made if there is in force an agreement between the employing authority and the member under which the employing authority can make the member contributions required by this Act by way of salary sacrifice; (b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a); (c) can only be made in respect of the whole of the member contributions; (d) can not be made in respect of any contributions made by a member in addition to the member contributions required under sub-section (1). (1C) Member contributions made in accordance with the rate determined under sub-section (1A) are for the purposes of this Act (other than sections 71C to 71E) to be taken to be— (a) the member contributions required to be paid under this Act; and (b) the member contributions that would have been payable if an election had not been made under sub-section (1A). (1D) An election under sub-section (1A) does not affect the amount that would otherwise constitute the salary of the revised scheme member for the purposes of this Act.'. s. 32 -- 44 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 42 33. Contribution rates—new scheme members After section 50(4) of the State Superannuation Act 1988 insert— '(4A) An eligible salary sacrifice contributor may by notice in writing to the employing authority elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— R 1 M − where— "M" is the elected member contribution rate in accordance with sub-section (1) without salary sacrifice; "R" is the tax rate for the financial year on taxable contributions to the Fund under the Commonwealth Income Tax Assessment Act 1936. (4B) An election under sub-section (4A)— (a) can only be made if there is in force an agreement between the employing authority and the member under which the employing authority can make the member contributions required by this Act by way of salary sacrifice; (b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a); (c) can only be made in respect of the whole of the member contributions; s. 33 -- 45 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 43 (d) can not be made in respect of any contributions made by a member in addition to the elected member contributions under sub-section (1). (4C) Member contributions made in accordance with the rate determined under sub-section (4A) are for the purposes of this Act (other than sections 71C to 71E) to be taken to be— (a) the member contributions elected to be paid under this Act; and (b) the member contributions that would have been payable if an election had not been made under sub-section (4A). (4D) An election under sub-section (4A) does not affect the amount that would otherwise constitute the salary of the new scheme member for the purposes of this Act.'. 34. Sections 61B and 61C repealed Sections 61B and 61C of the State Superannuation Act 1988 are repealed. 35. Section 71 substituted For section 71 of the State Superannuation Act 1988 substitute— '71. Minimum benefit (1) Subject to this section, if after all benefits payable under this Act in respect of a contributor or former contributor have been paid, the total amount of the benefits paid is less than the sum of the amount contributed by the contributor or former contributor to the Fund and interest as appropriate on the amount contributed at the rate which is the prescribed rate under section 46(1) or 58(1) up to the date that the contributor or former contributor first became entitled to a benefit s. 34 -- 46 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 44 under this Act other than a temporary pension under section 83A, there is to be paid out of the Fund to the contributor or former contributor an amount determined by the Board in accordance with the formula— A = MCI – BP where— "A" means the amount to be paid; "MCI" means the sum of the amount contributed by the contributor or former contributor to the Fund and interest as appropriate on the amount contributed at the rate which is the prescribed rate under section 46(1) or 58(1) up to the date that the contributor or former contributor first became entitled to a benefit under this Act other than a temporary pension under section 83A; "BP" means the total amount of all the benefits paid under this Act in respect of the contributor or former contributor. (2) Subject to this section, if the total amount of all the benefits paid or payable under this Act in respect of a contributor or former contributor is less than the sum of the superannuation guarantee amount and the amount contributed by the contributor or former contributor to the Fund and interest as appropriate on the amount contributed at the rate which is the prescribed rate under section 46(1) or 58(1) up to the date that the contributor or former contributor first became entitled to a benefit under this Act s. 35 -- 47 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 45 other than a temporary pension under section 83A, there is to be paid out of the Fund to the contributor or former contributor an amount determined by the Board in accordance with the formula— P = A + I where— "P" means the amount to be paid; "I" means interest as appropriate on "A" at the rate which is the prescribed rate under section 46(1) or 58(1) from the date "A" is calculated until the date that "A" is paid out of the Fund— and where "A" is an amount determined by the Board in accordance with the formula— SGC + MCI – B where— "SGC" means the superannuation guarantee amount; "MCI" has the same meaning as in sub- section (1); "B" means the total amount of all the benefits paid or payable in respect of the contributor or former contributor. (3) Unless sub-section (4), (5) or (6) applies, for the purposes of this section, the total amount of all the benefits paid or payable in respect of a contributor or former contributor is to be determined by the Board as at the date on which the contributor or former contributor first became entitled to a benefit under this Act, other than a temporary pension under s. 35 -- 48 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 46 section 83A, irrespective of when the benefit is payable. (4) If a contributor or former contributor becomes entitled to another benefit under this Act other than a temporary pension under section 83A after having returned to work following a period as a pensioner under this Act, the total amount of all the benefits paid or payable in respect of the contributor or former contributor is to be determined by the Board as at the date on which the contributor or former contributor first became entitled to that other benefit under this Act. (5) If a contributor or former contributor who had elected to receive all or a part of his or her entitlements under this Act as a deferred benefit— (a) dies before the deferred benefit becomes payable; and (b) does not leave a partner entitled to a pension under this Act or dependants or other persons entitled to a benefit under this Act— the Board must pay out of the Fund to the legal personal representative of the contributor or former contributor an amount equal to the superannuation guarantee amount determined by the Board. (6) If a contributor or former contributor who had elected to receive a pension under this Act other than a pension under section 83A dies without leaving any dependants, the Board must pay out of the Fund to the legal personal representative of the contributor or former contributor an amount calculated in s. 35 -- 49 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 47 accordance with sub-section (1) determined by the Board as at the date of death. (7) If the amount of the benefit paid or payable under this Act consists of, or includes, a pension or deferred benefit, the amount of the benefit paid or payable under this Act for the purposes of this section is to be determined by the Board in accordance with a method determined by an actuary appointed by the Board. (8) The Board may determine that an amount determined as payable under this section is to be applied to increase a pension payable to or in respect of a contributor or former contributor in a manner determined by the Board after obtaining the advice of an actuary appointed by the Board. (9) Any part of the superannuation guarantee amount which is required to be preserved in accordance with the specified standards must be preserved. (10) For the purposes of this section, if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part 7A or otherwise, the minimum benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board. (11) In this section, "superannuation guarantee amount" means the amount determined by the Board after obtaining the advice of an actuary appointed by the Board to be the minimum amount necessary in respect of a contributor or former contributor to avoid a s. 35 -- 50 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 48 superannuation guarantee shortfall within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. (12) The amount determined by the Board for the purpose of sub-section (11) is to be determined as if no election had been made under section 27(3), 28(1A) or 50(4A).'. 36. Amendment of section 76 In section 76(2) of the State Superannuation Act 1988 for "appointed to the first vacancy." substitute— "offered employment— (a) with tenure comparable with the tenure of the position held by the pensioner prior to the disability; and (b) having duties for which the pensioner is suited by education, training or experience or would be suited as a result of retraining.". 37. New section 81 inserted After section 80 of the State Superannuation Act 1988 insert— "81. Power to recover The Board may recover contributions or any other amount payable to the Board under this Act, including where there is paid from the Fund to any person an amount, the whole or part of which the person is not entitled to receive under this Act, the amount to which the person is not entitled, as a civil debt due to the Board in any court of competent jurisdiction.". s. 36 -- 51 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 49 38. Contribution rates—transferred members After section 94(5) of the State Superannuation Act 1988 insert— '(6) An eligible salary sacrifice contributor may by notice in writing to the employing authority elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— R 1 M − where— "M" is the applicable member contribution rate in accordance with the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund without salary sacrifice; "R" is the tax rate for the financial year on taxable contributions to the Melbourne Water Corporation Employees' Superannuation Fund under the Commonwealth Income Tax Assessment Act 1936. (7) An election under sub-section (6)— (a) can only be made if there is in force an agreement between the employing authority and the member under which the employing authority can make the member contributions required by the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund by way of salary sacrifice; s. 38 -- 52 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 50 (b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a); (c) can only be made in respect of the whole of the member contributions; (d) can not be made in respect of any contributions made by a member in addition to the applicable member contributions under the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund. (8) Member contributions made in accordance with the rate determined under sub- section (6) are for the purposes of the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund (other than the provisions relating to surchargeable contributions) to be taken to be— (a) the applicable member contributions to be paid under the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund; and (b) the member contributions that would have been payable if an election had not been made under sub-section (6). (9) An election under sub-section (6) does not affect the amount that would otherwise constitute the salary of the member for the purposes of the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund. s. 38 -- 53 of 67 -- Victorian Legislation and Parliamentary Documents Part 8—State Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 51 (10) The minimum benefit required to be paid to ensure compliance with the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth is to be determined as if no election had been made under sub- section (6).'. __________________ s. 38 -- 54 of 67 -- Victorian Legislation and Parliamentary Documents Part 9—Superannuation (Portability) Act 1989 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 52 PART 9—SUPERANNUATION (PORTABILITY) ACT 1989 39. Amendments relating to retirement savings accounts (1) For section 5(2A)(b) of the Superannuation (Portability) Act 1989 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the member.". (2) For section 7(7A)(b) of the Superannuation (Portability) Act 1989 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the person.". 40. Amendment of section 7 (1) In section 7(6) of the Superannuation (Portability) Act 1989 for "retires at any age other than 60 years" substitute "reaches the minimum retirement age fixed in the governing instrument of the member's statutory superannuation scheme at any age other than 60 years,". (2) In section 7(7) of the Superannuation (Portability) Act 1989 for "minimum age for retirement" substitute "minimum retirement age fixed in the governing instrument of the member's statutory superannuation scheme". __________________ See: Act No. 14/1989. Reprint No. 4 as at 15 October 2003. LawToday: www.dms. dpc.vic. gov.au s. 39 -- 55 of 67 -- Victorian Legislation and Parliamentary Documents Part 10—Transport Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 53 PART 10—TRANSPORT SUPERANNUATION ACT 1988 41. Amendments relating to retirement savings accounts (1) In section 3(1) of the Transport Superannuation Act 1988, after the definition of "retrenchment" insert— ' "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997;'. (2) For section 34A(3)(b) of the Transport Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the member.". (3) For section 35(4A)(b) of the Transport Superannuation Act 1988 substitute— "(b) have the lump sum transferred to— (i) a complying superannuation fund; or (ii) an RSA— nominated by the member.". (4) In section 36AA(1) of the Transport Superannuation Act 1988, the definition of "RSA" is repealed. See: Act No. 33/1988. Reprint No. 4 as at 15 October 2003. LawToday: www.dms. dpc.vic. gov.au s. 41 -- 56 of 67 -- Victorian Legislation and Parliamentary Documents Part 10—Transport Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 54 42. Definition of "eligible salary sacrifice contributor" inserted in section 3(1) In section 3(1) of the Transport Superannuation Act 1988, after the definition of "domestic partner" insert— ' "eligible salary sacrifice contributor" means a member in respect of whom a declaration is in force under section 3A;'. 43. New section 3A inserted After section 3 of the Transport Superannuation Act 1988 insert— "3A. Declaration of eligible salary sacrifice contributors The Minister may by notice published in the Government Gazette declare— (a) a member to be an eligible salary sacrifice contributor from the date specified in the notice; or (b) a class of members to be eligible salary sacrifice contributors from the date specified in the notice.". 44. Contributions by members After section 28(3) of the Transport Superannuation Act 1988 insert— '(3A) An eligible salary sacrifice contributor may by notice in writing to the employing transport authority elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— s. 42 -- 57 of 67 -- Victorian Legislation and Parliamentary Documents Part 10—Transport Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 55 R 1 M − where— "M" is the elected member contribution rate in accordance with sub-section (1) without salary sacrifice; "R" is the tax rate for the financial year on taxable contributions to the Fund under the Commonwealth Income Tax Assessment Act 1936. (3B) An election under sub-section (3A)— (a) can only be made if there is in force an agreement between the employing transport authority and the member under which the employing transport authority can make the member contributions required by this Act by way of salary sacrifice; (b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a); (c) can only be made in respect of the whole of the member contributions; (d) can not be made in respect of any contributions made by a member in addition to the elected member contributions under sub-section (1). (3C) Member contributions made in accordance with the rate determined under sub-section (3A) are for the purposes of this Act (other than sections 44CA to 44CC) to be taken to be— (a) the member contributions elected to be paid under this Act; and s. 44 -- 58 of 67 -- Victorian Legislation and Parliamentary Documents Part 10—Transport Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 56 (b) the member contributions that would have been payable if an election had not been made under sub-section (3A). (3D) An election under sub-section (3A) does not affect the amount that would otherwise constitute the salary of the member for the purposes of this Act.'. 45. Section 35A substituted For section 35A of the Transport Superannuation Act 1988 substitute— '35A. Minimum benefit (1) Despite anything to the contrary in this Act or the regulations, the amount of the benefit paid or payable under this Act in respect of any member or former member must not in respect of the period during which the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth applies, be less than the sum of the superannuation guarantee amount and the amount contributed by the member or former member to the Fund and interest as appropriate on the amount contributed at the rate which is the prescribed rate under section 35(1). (2) Subject to this section, if the total amount of all the benefits paid or payable under this Act in respect of a member or former member is less than the sum of the superannuation guarantee amount and the amount contributed by the member or former member to the Fund and interest as appropriate on the amount contributed at the rate which is the prescribed rate under section 35(1) up to the date that the member or former member first became entitled to a s. 45 -- 59 of 67 -- Victorian Legislation and Parliamentary Documents Part 10—Transport Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 57 benefit under this Act other than a temporary pension under section 32, there is to be paid out of the Fund to the member or former member an amount determined by the Board in accordance with the formula— P = A + I where— "P" means the amount to be paid; "I" means interest as appropriate on "A" at the rate which is the prescribed rate under section 35(1) from the date "A" is calculated until the date that "A" is paid out of the Fund— and where "A" is an amount determined by the Board in accordance with the formula— SGC + MCI – B where— "SGC" means the superannuation guarantee amount; "MCI" means the sum of the amount contributed by the member or former member to the Fund and interest as appropriate on the amount contributed at the rate which is the prescribed rate under section 35(1) up to the date that the contributor or former contributor first became entitled to a benefit under this Act other than a temporary pension under section 32; "B" means the total amount of all the benefits paid or payable in respect of the member or former member. s. 45 -- 60 of 67 -- Victorian Legislation and Parliamentary Documents Part 10—Transport Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 58 (3) Unless sub-section (4) applies, for the purposes of this section, the total amount of all the benefits paid or payable in respect of a member or former member is to be determined by the Board as at the date on which the member or former member first became entitled to a benefit under this Act, other than a temporary pension under section 32, irrespective of when the benefit is payable. (4) If a member or former member becomes entitled to another benefit under this Act other than a temporary pension under section 32 after having returned to work following a period as a pensioner under this Act, the total amount of all the benefits paid or payable in respect of the member or former member is to be determined by the Board as at the date on which the member or former member first became entitled to that other benefit under this Act. (5) If the amount of the benefit paid or payable under this Act consists of, or includes, a pension or deferred benefit, the amount of the benefit paid or payable under this Act for the purposes of this section is to be determined by the Board in accordance with a method determined by an actuary appointed by the Board. (6) Any part of the superannuation guarantee amount which is required to be preserved in accordance with the specified standards must be preserved. (7) For the purposes of this section, if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 s. 45 -- 61 of 67 -- Victorian Legislation and Parliamentary Documents Part 10—Transport Superannuation Act 1988 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 59 whether under Part 7A or otherwise, the minimum benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board. (8) In this section, "superannuation guarantee amount" means the amount determined by the Board after obtaining the advice of an actuary appointed by the Board to be the minimum amount necessary in respect of a member or former member to avoid a superannuation guarantee shortfall within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. (9) The amount determined by the Board for the purpose of sub-section (8) is to be determined as if no election had been made under section 28(3A).'. 46. New section 49A inserted After section 49 of the Transport Superannuation Act 1988 insert— "49A. Power to recover The Board may recover contributions or any other amount payable to the Board under this Act, including where there is paid from the Fund to any person an amount, the whole or part of which the person is not entitled to receive under this Act, the amount to which the person is not entitled, as a civil debt due to the Board in any court of competent jurisdiction.". __________________ s. 46 -- 62 of 67 -- Victorian Legislation and Parliamentary Documents Part 11—Victorian Managed Insurance Authority Act 1996 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 60 PART 11—VICTORIAN MANAGED INSURANCE AUTHORITY ACT 1996 47. Amendment of section 3 In section 3 of the Victorian Managed Insurance Authority Act 1996, after the definition of "guarantee" insert— ' "insurance business" means the business of undertaking liability, by way of insurance (including reinsurance), in respect of any loss or damage, including liability to pay damages or compensation, contingent upon the happening of a specified event; "insurance services" means any services which are ancillary to or arise out of the provision of insurance;'. 48. Amendment of section 7 At the end of section 7 of the Victorian Managed Insurance Authority Act 1996 insert— "(2) Without limiting or derogating from the generality of sub-section (1), the Authority may undertake and carry on in Victoria or elsewhere insurance business for the purpose of providing insurance or insurance services under and for the purposes of this Act. (3) Sub-section (2) is not limited by reference to the practices, usages, form and procedure for the time being followed by other persons engaged in the general insurance business.". See: Act No. 11/1996 Reprint No. 2 as at 20 September 2001 and amending Act No. 102/2003. LawToday: www.dms. dpc.vic. gov.au s. 47 -- 63 of 67 -- Victorian Legislation and Parliamentary Documents Part 11—Victorian Managed Insurance Authority Act 1996 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 61 49. New section 20A inserted After section 20 of the Victorian Managed Insurance Authority Act 1996 insert— "20A. Repayment or raising of capital (1) The capital of the Authority is repayable as a rebate on premiums to departments and participating bodies and other persons or bodies to which insurance or an indemnity is to be provided by the Authority at the time and in the amounts determined by the Minister with the agreement of the Treasurer after consultation with the Authority. (2) If the Authority requires additional capital, the additional capital is to be raised by a surcharge on premiums to be paid by departments and participating bodies and other persons or bodies to which insurance or an indemnity is to be provided by the Authority at the time and in the amounts determined by the Minister with the agreement of the Treasurer after consultation with the Authority. (3) The Minister must in determining the rebate or surcharge policy that applies to the Authority have regard to the capital requirements of the Authority and the need to provide an appropriate prudential margin for the operations of the Authority.". 50. Amendment of section 24 After section 24(4) of the Victorian Managed Insurance Authority Act 1996 insert— "(4A) Subject to sub-section (4B), the Authority may decline to provide insurance cover in respect of a specific risk identified by a department or participating body. s. 49 -- 64 of 67 -- Victorian Legislation and Parliamentary Documents Part 11—Victorian Managed Insurance Authority Act 1996 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 62 (4B) Despite sub-section (4A), the Minister may direct the Authority in writing to provide insurance cover in respect of a specific risk for which the Authority has declined to provide insurance cover. (4C) Sub-section (1) does not apply if— (a) the Authority declines to provide insurance cover under sub-section (4A); and (b) the Minister does not direct the Authority under sub-section (4B) to provide the insurance cover.". 51. New section 25B inserted After section 25A of the Victorian Managed Insurance Authority Act 1996 insert— "25B. Authority may determine conditions (1) Subject to sub-section (3), the Authority may, by agreement with departments and participating bodies and other persons or bodies to which insurance or an indemnity is to be provided by the Authority, determine deductible and maximum loss conditions to be included in insurance contracts or indemnities under this Act. (2) The amounts specified in deductible and maximum loss conditions may vary for different risks or different categories of risks. (3) The Minister may direct the Authority in writing in respect of levels of deductibles and maximum losses to apply to— (a) insurance contracts or indemnities generally; or s. 51 -- 65 of 67 -- Victorian Legislation and Parliamentary Documents Part 11—Victorian Managed Insurance Authority Act 1996 Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 63 (b) a specified risk or category of risk in an insurance contract entered into with, or an indemnity provided to, a specified department or participating body or other person or body.". 52. Repeal of spent provisions Sections 31, 32, 33 and 35 and Part 6 of the Victorian Managed Insurance Authority Act 1996 are repealed. ═══════════════ s. 52 -- 66 of 67 -- Victorian Legislation and Parliamentary Documents Treasury and Finance Legislation (Amendment) Act 2004 Act No. 40/2004 64 ENDNOTES † Minister's second reading speech— Legislative Assembly: 6 May 2004 Legislative Council: 1 June 2004 The long title for the Bill for this Act was "to amend the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993, the Emergency Services Superannuation Act 1986, the Government Superannuation Act 1999, the Professional Standards Act 2003, the State Employees Retirement Benefits Act 1979, the State Superannuation Act 1988, the Superannuation (Portability) Act 1989, the Transport Superannuation Act 1988 and the Victorian Managed Insurance Authority Act 1996 and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 6 May 2004 Legislative Council: 1 June 2004 Absolute majorities: Legislative Assembly: 27 May 2004 Legislative Council: 2 June 2004 Endnotes -- 67 of 67 --