Superannuation Acts (Amendment) Act 2000

i Superannuation Acts (Amendment) Act 2000 Act No. 29/2000 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—AMENDMENT OF EMERGENCY SERVICES SUPERANNUATION ACT 1986 3 3. Definitions 3 4. Beneficiaries Accounts 4 5. Review by VCAT 5 6. New sections 25B and 25C inserted 6 25B. Surcharge debt account 6 25C. Commutation of pension to meet surcharge liability 9 PART 3—AMENDMENT OF GOVERNMENT SUPERANNUATION ACT 1999 11 7. Statute law revision 11 8. MTA Superannuation Fund 11 PART 4—AMENDMENT OF PARLIAMENTARY SALARIES AND SUPERANNUATION ACT 1968 12 9. Amendment of section 6 12 10. Definitions 12 11. New sections 24D and 24E inserted 13 24D. Surcharge debt account 13 24E. Commutation of pension to meet surcharge liability 16 PART 5—AMENDMENT OF STATE EMPLOYEES RETIREMENT BENEFITS ACT 1979 18 12. Definitions 18 13. New sections 74CA–74CC inserted 19 74CA. Surcharge debt account 19 74CB. Recovery of surcharge where person entitled to deferred benefit 22 -- 1 of 42 -- Section Page ii 74CC. Commutation of pension to meet surcharge liability 22 PART 6—AMENDMENT OF STATE SUPERANNUATION ACT 1988 25 14. Definitions 25 15. New sections 71C–71E inserted 26 71C. Surcharge debt account 26 71D. Recovery of surcharge where person entitled to deferred benefit 29 71E. Commutation of pension to meet surcharge liability 29 PART 7—AMENDMENT OF SUPERANNUATION (PORTABILITY) ACT 1989 32 16. New section 9A 32 9A. Surcharge payments 32 PART 8—AMENDMENT OF TRANSPORT SUPERANNUATION ACT 1988 33 17. Definitions 33 18. New sections 44CA–CC inserted 34 44CA. Surcharge debt account 34 44CB. Recovery of surcharge where person entitled to deferred benefit 37 44CC. Commutation of pension to meet surcharge liability 38 ═══════════════ NOTES 40 -- 2 of 42 -- 1 Superannuation Acts (Amendment) Act 2000 † [Assented to 30 May 2000] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to— (a) insert provisions relating to the superannuation contributions tax into specified Superannuation Acts; and (b) make miscellaneous amendments to specified Superannuation Acts. Victoria No. 29 of 2000 -- 3 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 2 2. Commencement (1) This Act, except section 9, comes into operation on the day after the day on which it receives the Royal Assent. (2) Section 9(1) is deemed to have come into operation on 14 December 1999. (3) Section 9(2) comes into operation on the day on which sections 11 and 12 of the Parliamentary Committees (Amendment) Act 1999 come into operation. _______________ s. 2 -- 4 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 3 PART 2—AMENDMENT OF EMERGENCY SERVICES SUPERANNUATION ACT 1986 3. Definitions (1) In section 3 of the Emergency Services Superannuation Act 1986, in the definition of "current equivalent of salary on termination of service" after "means the salary" insert "(in accordance with section 4(1E)(f))". (2) In section 3 of the Emergency Services Superannuation Act 1986, insert the following definitions— ' "surchargeable contributions" means the surchargeable contributions of a contributor for a particular financial year worked out in accordance with section 8 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and any regulations made under that section that apply in respect of that particular financial year; "surcharge debt account" means, in relation to a person who is or has been a contributor to the Scheme or member of the ESSPLAN Scheme, the surcharge debt account kept for that person (while he or she was a contributor to the Scheme or member of the ESSPLAN Scheme) under section 25B; "surcharge deduction amount" means, in relation to a person— (a) who is or has been a contributor; and s. 3 -- 5 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 4 (b) to or in respect of whom benefits become payable under this Act— the surcharge deduction amount that is specified in a determination made by the Board under section 25B in relation to the person;'. 4. Beneficiaries Accounts (1) For section 21J(3) of the Emergency Services Superannuation Act 1986 substitute— "(3) The balance or any part of a beneficiary account established under sub-section (1) is payable— (a) to the beneficiary on the request of the beneficiary, in a form approved by the Board and in accordance with section 21K(3); or (b) in the case of the death of the beneficiary, to such one or more of the beneficiary's dependants and legal personal representatives and in such proportions of the whole of the balance as the Board in its absolute discretion determines.". (2) For section 21J(5) of the Emergency Services Superannuation Act 1986 substitute— "(5) The balance of a beneficiary account established under sub-section (4) is payable— (a) to the beneficiary on the request of the beneficiary, in a form approved by the Board and in accordance with section 21K(3); or (b) in the case of the death of the beneficiary, to such one or more of the s. 4 -- 6 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 5 beneficiary's dependants and legal personal representatives and in such proportions as the Board in its absolute discretion determines. (6) The Board must debit to a beneficiary account any superannuation contributions tax— (a) paid or payable by the Board in respect of contributions in respect of that beneficiary; and (b) specified in a notice of surcharge assessment from the Australian Taxation Office issued after the beneficiary ceased to be a contributor. (7) If the Australian Taxation Office issues an adjustment to a notice of surcharge assessment after the Board has debited an amount of superannuation contributions tax under sub-section (6), the Board must make the adjustment to that beneficiary account. (8) The Board must within 14 days of— (a) debiting an amount to a beneficiary account under sub-section (6); or (b) making an adjustment to a beneficiary account under sub-section (7)— advise the beneficiary in writing of the amount debited or the adjustment.". 5. Review by VCAT For section 23(6) of the Emergency Services Superannuation Act 1986 substitute— "(6) A person whose interests are affected by a decision of the Board may apply to the Victorian Civil and Administrative Tribunal for review of the decision. s. 5 -- 7 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 6 (7) An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.". 6. New sections 25B and 25C inserted After section 25A of the Emergency Services Superannuation Act 1986 insert— "25B. Surcharge debt account (1) The Board must establish and maintain a separate surcharge debt account for each contributor to the Scheme or member of the ESSPLAN Scheme. (2) The Board must debit to a contributor's or member's surcharge debt account— (a) any superannuation contributions tax paid or payable by the Board on contributions in respect of the contributor or member as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (b) if the contributor's or member's surcharge debt account is in debit at the end of a financial year, interest on the s. 6 -- 8 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 7 amount by which the account is in debit, calculated at the same rate as the rate determined under section 16 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (c) any debit adjustment to the amount debited under paragraph (a). (3) The Board must credit to a contributor's or member's surcharge debt account— (a) any pre-payment by the contributor or member to the Board in respect of any payment made or to be made by the Board to discharge or partially discharge the liability imposed under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (b) any credit adjustment to the amount debited under sub-section (2)(a); and (c) any surcharge deduction amount under sub-section (4); and (d) an amount to achieve a nil balance after all the debits under sub-section (2) and all the credits under paragraphs (a) to (c) have been made. (4) If in respect of a person who has been a contributor to the Scheme— (a) the Board discharges the liability imposed under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 under section 7 of that Act; and (b) benefits become payable under Part 3 to or in respect of that person; and s. 6 -- 9 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 8 (c) the person's surcharge debt account is in debit when those benefits become so payable— then, despite anything in any Act or in any trust instrument, contract or other document, the Board may reduce those benefits by an amount determined in writing that, in the Board's opinion on the advice of an actuary, would be fair and reasonable having regard to the matters specified in sub-section (5). (5) In making the determination, the Board must have regard to the following— (a) the amount by which the person's surcharge debt account is in debit when those benefits become payable; (b) the value of the employer-financed component of those benefits; (c) the value of the benefits that, for the purpose of working out (under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997) the surchargeable contributions reported for the person, were assumed to be likely to be payable to the person on his or her ceasing to be a contributor to the Scheme; (d) whether the person has or had qualified for his or her maximum benefit entitlement under this Act; (e) any other matter that the Board considers relevant. (6) The amount determined under sub-section (4) by the Board must not be more than 15 per cent of the employer-financed s. 6 -- 10 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 9 component of that part of the benefits payable to the person that accrued after 20 August 1996. (7) For the purposes of sub-section (4), if the benefit is in the form of a pension entitlement, the deduction is to be made by the Board commuting the person's pension entitlement to the extent determined by an actuary appointed by the Board to be necessary to meet the amount determined under sub-section (4). (8) The exercise of the power of commutation under sub-section (7) does not affect the exercise of any other commutation rights under this Act. 25C. Commutation of pension to meet surcharge liability (1) The power of commutation under this section applies if— (a) a person is receiving a pension under this Act; and (b) the person receives a notice of surcharge assessment on contributions made in respect of the person when he or she was a contributor from the Australian Taxation Office for which he or she is personally liable; and (c) the person makes an election in accordance with sub-section (2). (2) The election must— s. 6 -- 11 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 10 (a) be made within the period of 3 months after the day on which the assessment is made; and (b) be made in a manner approved by the Board; and (c) authorise the Board to pay on the person's behalf the amount of the surcharge assessment directly to the Australian Taxation Office. (3) The Board must commute the person's pension to the extent determined by an actuary appointed by the Board to be necessary to pay the amount of the surcharge assessment. (4) The Board must advise the person in writing as to the actuary's determination. (5) The exercise of the power of commutation under this section does not affect the exercise of any other commutation rights under this Act.". _______________ s. 6 -- 12 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 11 PART 3—AMENDMENT OF GOVERNMENT SUPERANNUATION ACT 1999 7. Statute law revision In section 10(8) of the Government Superannuation Act 1999 for "sub-section (1)" substitute "sub-section (7)". 8. MTA Superannuation Fund (1) In section 42(8) of the Government Superannuation Act 1999 after "relevant specified standards" insert "made under section 53 of the Transport Superannuation Act 1988". (2) In section 42(8) of the Government Superannuation Act 1999 after paragraph (b) insert— "; and (c) if a member of the MTA Superannuation Fund is subject to a notice of surcharge assessment, sections 44CA and 44CB of the Transport Superannuation Act 1988.". _______________ s. 7 -- 13 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 12 PART 4—AMENDMENT OF PARLIAMENTARY SALARIES AND SUPERANNUATION ACT 1968 9. Amendment of section 6 (1) In the Table to section 6 of the Parliamentary Salaries and Superannuation Act 1968, after "Joint Investigatory Committee" insert "or Economic Development Committee". (2) In the Table to section 6 of the Parliamentary Salaries and Superannuation Act 1968, after "Joint Investigatory Committee" omit "or Economic Development Committee". 10. Definitions In section 10(1) of the Parliamentary Salaries and Superannuation Act 1968, insert the following definitions— ' "surchargeable contributions" means the surchargeable contributions of a member for a particular financial year worked out in accordance with section 8 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and any regulations made under that section that apply in respect of that particular financial year; "surcharge debt account" means, in relation to a person who is or has been a member, the surcharge debt account kept for that person (while he or she was a member) under section 24D; "surcharge deduction amount" means, in relation to a person— (a) who is or has been a member; and s. 9 -- 14 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 13 (b) to or in respect of whom benefits become payable under this Act— the surcharge deduction amount that is specified in a determination made by the Parliamentary Trustee under section 24D in relation to the person;'. 11. New sections 24D and 24E inserted After section 24C of the Parliamentary Salaries and Superannuation Act 1968 insert— "24D. Surcharge debt account (1) The Parliamentary Trustee must establish and maintain a separate surcharge debt account for each member of the Fund. (2) The Parliamentary Trustee must debit to a member's surcharge debt account— (a) any superannuation contributions tax paid or payable by the Parliamentary Trustee on contributions in respect of the member as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (b) if the member's surcharge debt account is in debit at the end of a financial year, interest on the amount by which the account is in debit, calculated at the same rate as the rate determined under section 16 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (c) any debit adjustment to the amount debited under paragraph (a). s. 11 -- 15 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 14 (3) The Parliamentary Trustee must credit to a member's surcharge debt account— (a) any pre-payment by the member to the Parliamentary Trustee in respect of any payment made or to be made by the Parliamentary Trustee to discharge or partially discharge the liability imposed under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (b) any credit adjustment to the amount debited under sub-section (2)(a); and (c) any surcharge deduction amount under sub-section (4); and (d) an amount to achieve a nil balance after all the debits under sub-section (2) and all the credits under paragraphs (a) to (c) have been made. (4) If— (a) the Parliamentary Trustee discharges the liability imposed under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 under section 7 of that Act; and (b) benefits become payable to or in respect of a person who has held office as a member; and (c) the person's surcharge debt account is in debit when those benefits become so payable— then, despite anything in any Act or in any trust instrument, contract or other document, the Parliamentary Trustee may reduce those s. 11 -- 16 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 15 benefits by an amount determined in writing that, in the Parliamentary Trustee's opinion on the advice of an actuary, would be fair and reasonable having regard to the matters specified in sub-section (5). (5) In making the determination, the Parliamentary Trustee must have regard to the following— (a) the amount by which the person's surcharge debt account is in debit when those benefits become payable; (b) the value of the employer-financed component of those benefits; (c) the value of the benefits that, for the purpose of working out (under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997) the surchargeable contributions reported for the person, were assumed to be likely to be payable to the person on his or her ceasing to hold office as a member; (d) whether the person has or had qualified for his or her maximum benefit entitlement under this Act; (e) any other matter that the Parliamentary Trustee considers relevant. (6) The amount determined under sub-section (4) by the Parliamentary Trustee must not be more than 15 per cent of the employer- financed component of that part of the benefits payable to the person that accrued after 20 August 1996. s. 11 -- 17 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 16 (7) For the purposes of sub-section (4), if the benefit is in the form of a pension entitlement, the deduction is to be made by the Parliamentary Trustee commuting the member's pension entitlement to the extent determined by an actuary appointed by the Parliamentary Trustee to be necessary to meet the amount determined under sub- section (4). (8) The exercise of the power of commutation under sub-section (7) does not affect the exercise of any other commutation rights under this Act. 24E. Commutation of pension to meet surcharge liability (1) The power of commutation under this section applies if— (a) a person is receiving a pension under this Act; and (b) the person receives a notice of surcharge assessment on contributions made in respect of the person when he or she was a member from the Australian Taxation Office for which he or she is personally liable; and (c) the person makes an election in accordance with sub-section (2). (2) The election must— (a) be made within the period of 3 months after the day on which the assessment is made; and (b) be made in a manner approved by the Parliamentary Trustee; and s. 11 -- 18 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 17 (c) authorise the Parliamentary Trustee to pay on the person's behalf the amount of the surcharge assessment directly to the Australian Taxation Office. (3) The Parliamentary Trustee must commute the person's pension to the extent determined by an actuary appointed by the Parliamentary Trustee to be necessary to pay the amount of the surcharge assessment. (4) The Parliamentary Trustee must advise the person in writing as to the actuary's determination. (5) The exercise of the power of commutation under this section does not affect the exercise of any other commutation rights under this Act.". _______________ s. 11 -- 19 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 18 PART 5—AMENDMENT OF STATE EMPLOYEES RETIREMENT BENEFITS ACT 1979 12. Definitions In section 2(1) of the State Employees Retirement Benefits Act 1979, insert the following definitions— ' "surchargeable contributions" means the surchargeable contributions of a contributor for a particular financial year worked out in accordance with section 8 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and any regulations made under that section that apply in respect of that particular financial year; "surcharge debt account" means, in relation to a person who is or has been a contributor, the surcharge debt account kept for that person (while he or she was a contributor) under section 74CA; "surcharge deduction amount" means, in relation to a person— (a) who is or has been a contributor; and (b) to or in respect of whom benefits become payable under this Act— the surcharge deduction amount that is specified in a determination made by the Board under section 74CA in relation to the person;'. s. 12 -- 20 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 19 13. New sections 74CA–74CC inserted After section 74C of the State Employees Retirement Benefits Act 1979 insert— "74CA. Surcharge debt account (1) The Board must establish and maintain a separate surcharge debt account for each contributor. (2) The Board must debit to a contributor's surcharge debt account— (a) any superannuation contributions tax paid or payable by the Board on contributions in respect of the contributor as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (b) if the contributor's surcharge debt account is in debit at the end of a financial year, interest on the amount by which the account is in debit, calculated at the same rate as the rate determined under section 16 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (c) any debit adjustment to the amount debited under paragraph (a). (3) The Board must credit to a contributor's surcharge debt account— (a) any pre-payment by the contributor to the Board in respect of any payment made or to be made by the Board to discharge or partially discharge the liability imposed under the s. 13 -- 21 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 20 Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (b) any credit adjustment to the amount debited under sub-section (2)(a); and (c) any surcharge deduction amount under sub-section (4); and (d) an amount to achieve a nil balance after all the debits under sub-section (2) and all the credits under paragraphs (a) to (c) have been made. (4) If— (a) the Board discharges the liability imposed under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 under section 7 of that Act; and (b) benefits become payable to or in respect of a person who has been a contributor; and (c) the person's surcharge debt account is in debit when those benefits become so payable— then, despite anything in any Act or in any trust instrument, contract or other document, the Board may reduce those benefits by an amount determined in writing that, in the Board's opinion on the advice of an actuary, would be fair and reasonable having regard to the matters specified in sub-section (5). (5) In making the determination, the Board must have regard to the following— s. 13 -- 22 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 21 (a) the amount by which the person's surcharge debt account is in debit when those benefits become payable; (b) the value of the employer-financed component of those benefits; (c) the value of the benefits that, for the purpose of working out (under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997) the surchargeable contributions reported for the person, were assumed to be likely to be payable to the person on his or her ceasing to be a contributor; (d) whether the person has or had qualified for his or her maximum benefit entitlement under this Act; (e) any other matter that the Board considers relevant. (6) The amount determined under sub-section (4) by the Board must not be more than 15 per cent of the employer-financed component of that part of the benefits payable to the person that accrued after 20 August 1996. (7) For the purposes of sub-section (4), if the benefit is in the form of a pension entitlement, the deduction is to be made by the Board commuting the person's pension entitlement to the extent determined by an actuary appointed by the Board to be necessary to meet the amount determined under sub-section (4). (8) The exercise of the power of commutation under sub-section (7) does not affect the s. 13 -- 23 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 22 exercise of any other commutation rights under this Act. 74CB. Recovery of surcharge where person entitled to deferred benefit (1) This section applies if— (a) a person becomes entitled to a deferred benefit under this Act; and (b) any superannuation contributions tax is paid by the Board on contributions in respect of the person, made when the person was a contributor, as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (c) the notice of surcharge assessment is issued after the person ceased to be a contributor. (2) The Board must reduce the person's deferred benefit to the extent determined by an actuary appointed by the Board to be necessary to recover the amount referred to in sub-section (1). (3) The Board must advise the person in writing as to the actuary's determination. (4) The exercise of the power under sub-section (2) does not affect the exercise of any other commutation rights under this Act. 74CC. Commutation of pension to meet surcharge liability s. 13 -- 24 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 23 (1) The power of commutation under this section applies if— (a) a person is receiving a pension under this Act; and (b) the person receives a notice of surcharge assessment on contributions made in respect of the person when he or she was a contributor from the Australian Taxation Office for which he or she is personally liable; and (c) the person makes an election in accordance with sub-section (2). (2) The election must— (a) be made within the period of 3 months after the day on which the assessment is made; and (b) be made in a manner approved by the Board; and (c) authorise the Board to pay on the person's behalf the amount of the surcharge assessment directly to the Australian Taxation Office. (3) The Board must commute the person's pension to the extent determined by an actuary appointed by the Board to be necessary to pay the amount of the surcharge assessment. (4) The Board must advise the person in writing as to the actuary's determination. (5) The exercise of the power of commutation under this section does not affect the s. 13 -- 25 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 24 exercise of any other commutation rights under this Act.". _______________ s. 13 -- 26 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 25 PART 6—AMENDMENT OF STATE SUPERANNUATION ACT 1988 14. Definitions In section 3(1) of the State Superannuation Act 1988, insert the following definitions— ' "surchargeable contributions" means the surchargeable contributions of an officer for a particular financial year worked out in accordance with section 8 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and any regulations made under that section that apply in respect of that particular financial year; "surcharge debt account" means, in relation to a person who is or has been an officer, the surcharge debt account kept for that person (while he or she was an officer) under section 71C; "surcharge deduction amount" means, in relation to a person— (a) who is or has been an officer; and (b) to or in respect of whom benefits become payable under this Act— the surcharge deduction amount that is specified in a determination made by the Board under section 71C in relation to the person;'. s. 14 -- 27 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 26 15. New sections 71C–71E inserted After section 71B of the State Superannuation Act 1988 insert— "71C. Surcharge debt account (1) The Board must establish and maintain a separate surcharge debt account for each officer. (2) The Board must debit to an officer's surcharge debt account— (a) any superannuation contributions tax paid or payable by the Board on contributions in respect of the officer as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (b) if the member's surcharge debt account is in debit at the end of a financial year, interest on the amount by which the account is in debit, calculated at the same rate as the rate determined under section 16 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (c) any debit adjustment to the amount debited under paragraph (a). (3) The Board must credit to an officer's surcharge debt account— (a) any pre-payment by the officer to the Board in respect of any payment made or to be made by the Board to discharge or partially discharge the liability imposed under the Commonwealth s. 15 -- 28 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 27 Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (b) any credit adjustment to the amount debited under sub-section (2)(a); and (c) any surcharge deduction amount under sub-section (4); and (d) an amount to achieve a nil balance after all the debits under sub-section (2) and all the credits under paragraphs (a) to (c) have been made. (4) If— (a) the Board discharges the liability imposed under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 under section 7 of that Act; and (b) benefits become payable to or in respect of a person who has been an officer; and (c) the person's surcharge debt account is in debit when those benefits become so payable— then, despite anything in any Act or in any trust instrument, contract or other document, the Board may reduce those benefits by an amount determined in writing that, in the Board's opinion on the advice of an actuary, would be fair and reasonable having regard to the matters specified in sub-section (5). (5) In making the determination, the Board must have regard to the following— s. 15 -- 29 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 28 (a) the amount by which the person's surcharge debt account is in debit when those benefits become payable; (b) the value of the employer-financed component of those benefits; (c) the value of the benefits that, for the purpose of working out (under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997) the surchargeable contributions reported for the person, were assumed to be likely to be payable to the person on his or her ceasing to be an officer; (d) whether the person has or had qualified for his or her maximum benefit entitlement under this Act; (e) any other matter that the Board considers relevant. (6) The amount determined under sub-section (4) by the Board must not be more than 15 per cent of the employer-financed component of that part of the benefits payable to the person that accrued after 20 August 1996. (7) For the purposes of sub-section (4), if the benefit is in the form of a pension entitlement, the deduction is to be made by the Board commuting the person's pension entitlement to the extent determined by an actuary appointed by the Board to be necessary to meet the amount determined under sub-section (4). (8) The exercise of the power of commutation under sub-section (7) does not affect the s. 15 -- 30 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 29 exercise of any other commutation rights under this Act. 71D. Recovery of surcharge where person entitled to deferred benefit (1) This section applies if— (a) a person becomes entitled to a deferred benefit under this Act; and (b) any superannuation contributions tax is paid by the Board on contributions in respect of the person, made when the person was an officer, as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (c) the notice of surcharge assessment is issued after the person ceased to be an officer. (2) The Board must reduce the person's deferred benefit to the extent determined by an actuary appointed by the Board to be necessary to recover the amount referred to in sub-section (1). (3) The Board must advise the person in writing as to the actuary's determination. (4) The exercise of the power under sub-section (2) does not affect the exercise of any other commutation rights under this Act. 71E. Commutation of pension to meet surcharge liability s. 15 -- 31 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 30 (1) The power of commutation under this section applies if— (a) a person is receiving a pension under this Act; and (b) the person receives a notice of surcharge assessment on contributions made in respect of the person when he or she was an officer from the Australian Taxation Office for which he or she is personally liable; and (c) the person makes an election in accordance with sub-section (2). (2) The election must— (a) be made within the period of 3 months after the day on which the assessment is made; and (b) be made in a manner approved by the Board; and (c) authorise the Board to pay on the person's behalf the amount of the surcharge assessment directly to the Australian Taxation Office. (3) The Board must commute the person's pension to the extent determined by an actuary appointed by the Board to be necessary to pay the amount of the surcharge assessment. (4) The Board must advise the person in writing as to the actuary's determination. (5) The exercise of the power of commutation under this section does not affect the s. 15 -- 32 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 31 exercise of any other commutation rights under this Act.". _______________ s. 15 -- 33 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 32 PART 7—AMENDMENT OF SUPERANNUATION (PORTABILITY) ACT 1989 16. New section 9A After section 9 of the Superannuation (Portability) Act 1989 insert— "9A. Surcharge payments The administrators of a statutory superannuation scheme must administer any surcharge paid or payable in respect of any benefit under this Act in accordance with the terms of the statutory superannuation scheme.". _______________ s. 16 -- 34 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 33 PART 8—AMENDMENT OF TRANSPORT SUPERANNUATION ACT 1988 17. Definitions In section 3(1) of the Transport Superannuation Act 1988, insert the following definitions— ' "surchargeable contributions" means the surchargeable contributions of a member for a particular financial year worked out in accordance with section 8 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and any regulations made under that section that apply in respect of that particular financial year; "surcharge debt account" means, in relation to a person who is or has been a member, the surcharge debt account kept for that person (while he or she was a member) under section 44CA; "surcharge deduction amount" means, in relation to a person— (a) who is or has been a member; and (b) to or in respect of whom benefits become payable under this Act— the surcharge deduction amount that is specified in a determination made by the Board under section 44CA in relation to the person;'. s. 17 -- 35 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 34 18. New sections 44CA–CC inserted After section 44C of the Transport Superannuation Act 1988 insert— "44CA. Surcharge debt account (1) The Board must establish and maintain a separate surcharge debt account for each member of the Fund. (2) The Board must debit to a member's surcharge debt account— (a) any superannuation contributions tax paid or payable by the Board on contributions in respect of the member as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (b) if the member's surcharge debt account is in debit at the end of a financial year, interest on the amount by which the account is in debit, calculated at the same rate as the rate determined under section 16 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (c) any debit adjustment to the amount debited under paragraph (a). (3) The Board must credit to a member's surcharge debt account— (a) any pre-payment by the member to the Board in respect of any payment made or to be made by the Board to discharge or partially discharge the liability imposed under the Commonwealth s. 18 -- 36 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 35 Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (b) any credit adjustment to the amount debited under sub-section (2)(a); and (c) any surcharge deduction amount under sub-section (4); and (d) an amount to achieve a nil balance after all the debits under sub-section (2) and all the credits under paragraphs (a) to (c) have been made. (4) If— (a) the Board discharges the liability imposed under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 under section 7 of that Act; and (b) benefits become payable to or in respect of a person who has been a member of the Scheme; and (c) the person's surcharge debt account is in debit when those benefits become so payable— then, despite anything in any Act or in any trust instrument, contract or other document, the Board may reduce those benefits by an amount determined in writing that, in the Board's opinion on the advice of an actuary, would be fair and reasonable having regard to the matters specified in sub-section (5). (5) In making the determination, the Board must have regard to the following— s. 18 -- 37 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 36 (a) the amount by which the person's surcharge debt account is in debit when those benefits become payable; (b) the value of the employer-financed component of those benefits; (c) the value of the benefits that, for the purpose of working out (under the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997) the surchargeable contributions reported for the person, were assumed to be likely to be payable to the person on his or her ceasing to be a member of the Scheme; (d) whether the person has or had qualified for his or her maximum benefit entitlement under this Act; (e) any other matter that the Board considers relevant. (6) The amount determined under sub-section (4) by the Board must not be more than 15 per cent of the employer-financed component of that part of the benefits payable to the person that accrued after 20 August 1996. (7) For the purposes of sub-section (4), if the benefit is in the form of a pension entitlement, the deduction is to be made by the Board commuting the person's pension entitlement to the extent determined by an actuary appointed by the Board to be necessary to meet the amount determined under sub-section (4). s. 18 -- 38 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 37 (8) The exercise of the power of commutation under sub-section (7) does not affect the exercise of any other commutation rights under this Act. 44CB. Recovery of surcharge where person entitled to deferred benefit (1) This section applies if— (a) a person becomes entitled to a deferred benefit under this Act; and (b) any superannuation contributions tax is paid by the Board on contributions in respect of the person, made when the person was a member, as a result of the operation of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 to discharge the liability imposed under that Act; and (c) the notice of surcharge assessment is issued after the person ceased to be a member of the Scheme. (2) The Board must reduce the person's deferred benefit to the extent determined by an actuary appointed by the Board to be necessary to recover the amount referred to in sub-section (1). (3) The Board must advise the person in writing as to the actuary's determination. (4) The exercise of the power under sub-section (2) does not affect the exercise of any other commutation rights under this Act. s. 18 -- 39 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 38 44CC. Commutation of pension to meet surcharge liability (1) The power of commutation under this section applies if— (a) a person is receiving a pension under this Act; and (b) the person receives a notice of surcharge assessment on contributions made in respect of the person when he or she was a member from the Australian Taxation Office for which he or she is personally liable; and (c) the person makes an election in accordance with sub-section (2). (2) The election must— (a) be made within the period of 3 months after the day on which the assessment is made; and (b) be made in a manner approved by the Board; and (c) authorise the Board to pay on the person's behalf the amount of the surcharge assessment directly to the Australian Taxation Office. (3) The Board must commute the person's pension to the extent determined by an actuary appointed by the Board to be necessary to pay the amount of the surcharge assessment. (4) The Board must advise the person in writing as to the actuary's determination. s. 18 -- 40 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 39 (5) The exercise of the power of commutation under this section does not affect the exercise of any other commutation rights under this Act.". ═══════════════ s. 18 -- 41 of 42 -- Act No. 29/2000 Superannuation Acts (Amendment) Act 2000 40 NOTES † Minister's second reading speech— Legislative Assembly: 4 May 2000 Legislative Council: 24 May 2000 The long title for the Bill for this Act was "to amend the Emergency Services Superannuation Act 1986, the Government Superannuation Act 1999, the Parliamentary Salaries and Superannuation Act 1968, the State Employees Retirement Benefits Act 1979, the State Superannuation Act 1988, the Superannuation (Portability) Act 1989 and the Transport Superannuation Act 1988 and for other purposes." Notes -- 42 of 42 --