Retirement Benefits Act 1993

Retirement Benefits Act 1993

[The long title Substituted by No. 91 of 1999, s. 66, Applied:15 Dec 1999] An Act to provide for superannuation benefits for persons employed, or appointed or elected to positions, in the public sector and for the spouses and beneficiaries of those persons in certain cases and for other purposes

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

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Retirement Benefits Act 1993 .

2.   Commencement

(1)  Sections 1 , 28 , 29 , 30 (2) and 33 and this section and Schedule 7 commence on the day on which this Act receives the Royal Assent.

(2)  [Section 2 Subsection (2) amended by No. 40 of 1996, s. 4 and Sched. 2 ]If, by notice published in the Gazette on or before 1 April 1994, the Minister declares that he is satisfied that the SAF Agreement will not be in force on 1 July 1994 except for the purposes of section 15 (d) , the remaining provisions of this Act commence on 1 July 1994.

(3)  If the remaining provisions of this Act have not commenced as provided by subsection (2) , those provisions commence on a day to be proclaimed.

3.   Interpretation

(1)  [Section 3 Subsection (1) amended by No. 5 of 1995, s. 4 ][Section 3 Subsection (1) amended by No. 40 of 1996, s. 4 and Sched. 2 ]In this Act, unless the contrary intention appears –

Accumulation Fund means the Fund established under clause 13 of the SAF Agreement ;

[Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] accumulation scheme means the Tasmanian Accumulation Scheme established under the Public Sector Superannuation Reform Act 1999 ;

Actuary means a person or organization appointed under the regulations as the Actuary for the purposes of this Act;

Board means the Retirement Benefits Fund Board continued in existence under section 7 ;

commencement day means 1 July 1994 or such later day as may be proclaimed under section 2 (3) ;

[Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] complying superannuation scheme means a complying superannuation fund as provided by the law of the Commonwealth;

[Section 3 Subsection (1) amended by No. 18 of 1999, s. 39, Applied:14 May 1999]

contravene includes fail to comply with;

contributions means contributions paid or payable to the Fund under the regulations, less any amount deducted from those contributions as provided in the regulations;

[Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] contributory scheme means the superannuation arrangements provided by Part 4 of the Retirement Benefits Regulations 1994 ;

functions includes duties;

[Section 3 Subsection (1) amended by No. 18 of 1999, s. 39, Applied:14 May 1999] Fund means the Retirement Benefits Fund continued in existence under section 11 and includes all money received by the Board and all subfunds, accounts, investments, policies of insurance and other assets in which that money is from time to time invested;

member means a member of the Scheme;

[Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] member of a board, in respect of a statutory authority, includes any chairman, president, deputy, alternate, substitute or acting member of the board or the governing body of the statutory authority;

[Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] non-contributory scheme means the scheme established under Part 5 of the Retirement Benefits Regulations 1994 ;

PSRB Trust means the Parliamentary Superannuation and Retiring Benefits Trust;

regulations means regulations made and in force under this Act;

repealed Act means the Retirement Benefits Act 1982 ;

SAF Agreement means the agreement referred to in section 71A (1) of the repealed Act , including that agreement as amended or varied from time to time –

(a) in accordance with clause 41.1 of that agreement ; or

(b) by supplementary agreement approved by the Governor in accordance with regulations made under the repealed Act ;

SAF Board means the Superannuation Accumulation Fund Board constituted under section 71B of the repealed Act and continued in existence under section 15 ;

Scheme means the Retirement Benefits Fund Scheme established under section 5 ;

[Section 3 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the Royal Prerogative, where the body or authority or its governing authority wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority but does not include a Government department established under section 11 of the State Service Act 2000 ;

[Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] statutory authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the Royal Prerogative, where the body or authority, or the governing body of which, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority and includes the governing body of any such statutory authority;

Trust means the Retirement Benefits Fund Investment Trust as in existence under this Act on 30 June 1995;

[Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] Trust Deed means the Trust Deed referred to in section 7 of the Public Sector Superannuation Reform Act 1999 and includes that Deed as amended or substituted from time to time;

winding up period means the period commencing on the commencement day and ending on such later day as is determined by the Minister and notified in the Gazette.

(2)  For the purposes of this Act, any amendments to the Retirement Benefits Act 1982 that, but for this subsection, have not commenced before the commencement day are to be taken as having commenced immediately before that day.

4.   Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

5.   Objects of Act

[Section 5 Substituted by No. 91 of 1999, s. 67, Applied:15 Dec 1999]

(1)  The objects of this Act are to provide a superannuation scheme for –

(a) a person who after 1 July 1999 is first appointed as Governor; and

(b) a person who after 1 July 1999 is elected as a member of Parliament and to whom neither the Parliamentary Superannuation Act 1973 nor the Parliamentary Retiring Benefits Act 1985 applies; and

(c) a person who after 1 July 1999 is appointed as a judge or the Master of the Supreme Court; and

(d) a person who after 1 July 1999 is appointed as the Solicitor-General or the Director of Public Prosecutions; and

(e) [Section 5 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] persons employed by the State or State authorities, but not including a member of a board; and

(f) in certain cases, the spouses and beneficiaries of any person referred to in paragraph (a) , (b) , (c) , (d) or (e) .

(2)  Nothing in subsection (1) limits the effect of any other Act which confers a right on any person to make contributions, or to transfer a lump sum benefit, to an investment account or an allocated pension account established by the regulations.

(3)  The scheme is to be known as the Retirement Benefits Fund Scheme.

6.   Application of Commonwealth superannuation principles

[Section 6 Substituted by No. 40 of 1996, s. 3 and Sched. 1 ][Section 6 Substituted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The Board must comply with the principles outlined in the Heads of Government Agreement made on 28 May 1996 between the Commonwealth and Tasmania, as amended from time to time, as if those principles were included in this Act.

PART 2 - Administration

7.   Continuation of Retirement Benefits Fund Board

(1)  The Board continued in existence under the repealed Act with the corporate name of "the Retirement Benefits Fund Board" continues in existence as a body corporate with that corporate name notwithstanding any change in the membership of the Board provided for by this Act.

(2)  The Board –

(a) has perpetual succession; and

(b) is to have a common seal; and

(c) may take proceedings, and be proceeded against, in its corporate name; and

(d) may acquire, hold and dispose of real and personal property; and

(e) has the functions imposed, and the powers conferred, on it by or under this or any other Act; and

(f) may do, and be subject to, all other things that bodies corporate may, by law, do or be subject to, that are necessary for, or conducive, incidental or related to, the discharge of its functions and the exercise of its powers.

(3)  [Section 7 Subsection (3) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The common seal of the Board is not to be attached to a document except by resolution of the Board and every sealing is to be authenticated by the signature of 2 members of the Board and the chief executive officer of the Board appointed under the regulations.

(4)  All courts, judges and persons acting judicially must take judicial notice of the common seal of the Board affixed to a document and must, unless the contrary is established, presume that the seal was duly affixed.

8.   Constitution of Board

(1)  [Section 8 Subsection (1) substituted by No. 19 of 1999, Sched. 1, Applied:15 May 1999] The Board consists of 7 members, including a President and Deputy President of the Board, to be appointed by the Governor in accordance with the regulations.

(2)  [Section 8 Subsection (2) amended by No. 40 of 1996, s. 4 and Sched. 2 ][Section 8 Subsection (2) omitted by No. 19 of 1999, Sched. 1, Applied:15 May 1999] .  .  .  .  .  .  .  .  

(3)  [Section 8 Subsection (3) omitted by No. 19 of 1999, Sched. 1, Applied:15 May 1999] .  .  .  .  .  .  .  .  

(4)  Schedule 1 has effect with respect to the members of the Board.

(5)  Schedule 2 has effect with respect to meetings of the Board.

9.   Suspension and removal of members of Board

(1)  [Section 9 Subsection (1) amended by No. 18 of 1999, s. 40, Applied:14 May 1999] The Governor may suspend a member of the Board from office for misconduct, incompetence or inefficient administration or on the receipt of a recommendation to that effect from the Australian Prudential Regulation Authority.

(2)  [Section 9 Subsection (2) amended by No. 40 of 1996, s. 4 and Sched. 2 ]Within the first 7 sitting days of each House of Parliament respectively occurring next after a suspension is imposed under subsection (1) , the Minister must cause to be laid on the table of each House a full statement of the grounds on which the suspension was imposed together with any supporting evidence.

(3)  If, within the first 21 sitting days of each House of Parliament respectively occurring next after a statement under subsection (2) is laid on the table of each House, each House by resolution declares that the member should be removed from office, the Governor must remove the member from office accordingly.

(4)  If, after a statement under subsection (2) is laid on the table of each House, either House does not make a declaration as provided in subsection (3) , the member is restored to office.

(5)  [Section 9 Subsection (5) amended by No. 18 of 1999, s. 40, Applied:14 May 1999] [Section 9 Subsection (5) amended by No. 40 of 1996, s. 4 and Sched. 2 ]If the Governor suspends or removes a member or members of the Board, the Governor must, on the recommendation of the Minister having regard to the views of the Australian Prudential Regulation Authority, appoint an acting member until the vacancy has been filled.

10.   Functions of Retirement Benefits Fund Board

[Section 10 Subsection (3) amended by No. 40 of 1996, s. 4 and Sched. 2 ]

(1)  It is the duty of the Board to administer and manage the Scheme in accordance with this Act and any other applicable law of the State or the Commonwealth for the purpose of providing benefits on retirement and certain other contingencies as may be specified in the regulations for present and future members of the Scheme and their beneficiaries or representatives.

(2)  The Board is responsible for the management and control of the Scheme and is to act as sole trustee of the Fund.

(3)  [Section 10 Subsection (3) amended by No. 5 of 1995, s. 5 ]In the administration of this Act, the Board –

(a) is to have such functions, powers and duties as may be prescribed by the regulations; and

(b) must provide the Minister with timely and accurate advice as to the operation of the Scheme; and

(c) must protect information, the disclosure of which might adversely affect the financial position or the commercial or other operations of the Board; and

(d) is not subject to section 5 of the Trustee Act 1898 ; and

(e) must exercise a fiduciary responsibility over all the assets, investments and property of the Fund; and

(f) must have regard to the superannuation and employment policies of the Government; and

(g) must take possession of all money and other property vested in it under this Act.

(3A)  [Section 10 Subsection (3A) inserted by No. 5 of 1995, s. 5 ]The Board may make an agreement with the PSRB Trust for employees employed in the administration of this Act to assist in the administration and investment of money standing to the credit of the funds established under the Parliamentary Superannuation Act 1973 and the Parliamentary Retiring Benefits Act 1985 .

(4)  [Section 10 Subsection (4) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] [Section 10 Subsection (4) amended by No. 5 of 1995, s. 5 ]The Board may engage on contract or employ any person or organization other than the chief executive officer for the purpose of providing it with such advice as may be necessary in connection with its functions, powers and duties or otherwise in the administration of this Act.

(5)  [Section 10 Subsection (5) inserted by No. 19 of 1999, Sched. 1, Applied:15 May 1999] The Board has the functions and duties assigned to it under the Public Sector Superannuation Reform Act 1999 .

11.   Continuation of Retirement Benefits Fund

(1)  The Fund continued in existence under the repealed Act by the name of "the Retirement Benefits Fund" continues in existence under the same name.

(2)  All contributions, payments, amounts, money and income payable under the regulations are to be paid into the Fund.

(3)  The Board must pay out of the Fund all amounts prescribed by the regulations or as otherwise required by law.

(4)  The Board and the Fund are liable to taxation imposed by or under any law of the State.

12.   Power of delegation of Board

(1)  [Section 12 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] [Section 12 Subsection (1) amended by No. 5 of 1995, s. 6 ]The Board may, by an instrument of delegation under its common seal, delegate to the chairperson, a member or officer of the Board, including the chief executive officer, or a person or organization that, under the regulations, is engaged on contract or employed by the Board any power or duty of the Board under this Act other than this power of delegation.

(2)  A duty or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.

(3)  A delegation made under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument.

(4)  Notwithstanding any delegation, the Board may continue to perform or exercise all or any of the functions or powers delegated.

(5)  Any act or thing done by, or to, a delegate while acting in the exercise of a delegation under this section has the same force and effect as if the act or thing had been done by, or to, the Board and is taken to have been done by, or to, the Board.

(6)  An instrument purporting to be signed by a delegate of the Board in his or her capacity as such a delegate is, in all courts and before all persons acting judicially, to be received in evidence as if it were an instrument executed by the Board under seal and, until the contrary is proved, is taken to be an instrument signed by a delegate of the Board under this section.

13.   Appropriation and Minister's guarantee

(1)  In this section, Agency means –

(a) [Section 13 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] an Agency or branch of an Agency within the meaning of the State Service Act 2000 ; or

(b) the controlling authority of any industry or undertaking carried on by or on behalf of the State; or

(c) where the services of a State authority are transferred to another person or organization, the person or organization responsible for payment of contributions to the Fund in respect of contributors.

(2)  [Section 13 Subsection (2) amended by No. 40 of 1996, s. 4 and Sched. 2 ]A contribution that is required under the regulations to be paid by the Minister is to be paid by the Minister out of the Consolidated Fund without further appropriation than this section.

(3)  A contribution referred to in subsection (2) is to be paid at such times and in such manner as are prescribed in the regulations.

(4)  [Section 13 Subsection (4) amended by No. 40 of 1996, s. 4 and Sched. 2 ]The regulations may provide for a guarantee to be given by the Minister with respect to –

(a) the payment of pensions and lump sum benefits under this Act; and

(b) the payment to the Fund of contributions required to be made by an Agency or State authority.

14.   Actuarial investigation of Fund

The Actuary must undertake such investigations into the state and sufficiency of the Fund at such times and on such conditions as are prescribed in the regulations.

15.   Continuation of SAF Board

During the winding up period –

(a) the SAF Board continues in existence as a body corporate; and

(b) the persons who hold office as members of the SAF Board immediately before the commencement day continue to hold office; and

(c) the person for the time being holding office as the Secretary of the SAF Board or, during that person's absence or inability to act, the person for the time being holding office as the Acting Secretary of that Board, continues to act as the Secretary of that Board; and

(d) Parts 1 and 2 of Schedule 3 to the SAF Agreement continue to have effect; and

(e) in addition to the powers conferred on it under this Act, the SAF Board may take any action necessary for the purposes of winding up the Accumulation Fund with effect from the commencement day.

16.   Dissolution of SAF Board

On the expiration of the winding up period –

(a) the SAF Board is dissolved; and

(b) the members of the SAF Board cease to hold office; and

(c) the person acting as the Secretary of the SAF Board ceases to hold that office.

17.   Savings

This Part has effect notwithstanding the repeal of the Retirement Benefits Act 1982 effected by this Act.

PART 3 - Investment Arrangements

18.   

[Section 18 Repealed by No. 5 of 1995, s. 7 ].  .  .  .  .  .  .  .  

19.   

[Section 19 Repealed by No. 5 of 1995, s. 7 ].  .  .  .  .  .  .  .  

20.   

[Section 20 Repealed by No. 5 of 1995, s. 7 ].  .  .  .  .  .  .  .  

21.   

[Section 21 Repealed by No. 5 of 1995, s. 7 ].  .  .  .  .  .  .  .  

22.   

[Section 22 Repealed by No. 5 of 1995, s. 7 ].  .  .  .  .  .  .  .  

23.   

[Section 23 Repealed by No. 5 of 1995, s. 7 ].  .  .  .  .  .  .  .  

24.   

[Section 24 Repealed by No. 5 of 1995, s. 7 ].  .  .  .  .  .  .  .  

25.   Investment management services for PSRB Trust

[Section 25 Repealed by No. 5 of 1995, s. 7 ][Section 25 Inserted by No. 18 of 1999, s. 41, Applied:14 May 1999]

(1)  The Board –

(a) may, either alone or in conjunction with other persons, enter into an agreement with the PSRB Trust for the purposes of the investment of money standing to the credit of any fund maintained by the PSRB Trust for the purposes of the Parliamentary Superannuation Act 1973 or the Parliamentary Retiring Benefits Act 1985 ; and

(b) is entitled to be paid, out of such fund as may be appropriate, such management fees as are specified in that agreement.

(2)  The Board must maintain separate records from those maintained for the purposes of section 26 for any money standing to the credit of any fund referred to in subsection (1) .

(3)  The Board must, at intervals of not greater than 6 months and on demand being made by the PSRB Trust, provide the PSRB Trust with a report on its operations under an agreement under subsection (1) during the period of 6 months immediately preceding the date of the report or, where the report is provided earlier than 6 months after the date of another such report, the period since the date of that other report.

(4)  A report provided under subsection (3) is to include, in particular –

(a) the status of all investments and money that at the date of the report are subject to the control of the PSRB Trust under the agreement; and

(b) the income earned by the Board on those investments and that money during the period to which the report relates; and

(c) the total amount of any management fees deducted by the Board from that money and income during that period.

(5)  The Board must, within 14 days after the termination of an agreement under this section or within such further period as may be agreed, pay all money, including income, and transfer all investments held by it under the agreement, to the PSRB Trust.

26.   Investment of Fund

(1)  In this section –

provident fund means so much of the Fund as represents the total of the amounts which in accordance with the regulations stand to the credit of the basic contributions accounts of provident fund contributors;

provident fund contributor means a person who has made an election in accordance with section 61BA of the repealed Act or who is taken, under subsection (2) of that section , to have made an election in accordance with that section.

(2)  The regulations may provide for the investment of any money held by the Board on the commencement day and any money subsequently received by the Board for the purposes of this Act.

(3)  [Section 26 Subsection (3) substituted by No. 5 of 1995, s. 8 ]The Board must, so far as is practicable, invest all money that is paid to it under this Act and that is not required in the administration of this Act.

(4)  [Section 26 Subsection (4) amended by No. 5 of 1995, s. 8 ]The Board may invest money standing to the credit of the provident fund with –

(a) the Tasmanian Public Finance Corporation; or

(b) another investment manager approved by the Board after consultation with the Police Association of Tasmania.

(5)  [Section 26 Subsection (5) amended by No. 5 of 1995, s. 8 ]The Board may –

(a) invest any money paid to it under this Act; or

(b) vary or dispose of any such investment –

in any manner in which it thinks fit.

(6)  [Section 26 Subsection (6) amended by No. 5 of 1995, s. 8 ]The powers of the Board under this section extend to any amount comprised in the provident fund.

PART 4 - Miscellaneous and Supplemental

27.   Audit

[Section 27 Amended by No. 5 of 1995, s. 9 ]The Board is subject to Part 3 of the Financial Management and Audit Act 1990 .

28.   Power of Minister to approve transfer arrangements

[Section 28 Amended by No. 40 of 1996, s. 4 and Sched. 2 ]The Minister may make or approve arrangements, to take effect on or after the commencement day, under which money, investments, any estate or interest in land or other property is to be transferred to the Fund and vested in the Board consequent on the winding up of a superannuation scheme established by –

(a) a State authority; or

(b) a controlling authority of any industry or undertaking carried on by, or on behalf of, the State.

29.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  [Section 29 Subsection (2) amended by No. 40 of 1996, s. 4 and Sched. 2 ]The regulations do not have effect until publication of a notice in the Gazette by the Minister that they have been approved by both Houses of Parliament but, if so approved –

(a) the regulations are not subject to disallowance as provided by section 47 of the Acts Interpretation Act 1931 ; and

(b) the regulations may take effect on and from 1 July 1993 or a later day.

(3)  For the purposes of subsection (2) , a House of Parliament is taken to have approved the regulations if a copy of them has been laid on the table of that House and –

(a) the regulations are approved by that House; or

(b) at the expiration of 21 sitting days of that House after the copy was laid on the table of that House, no motion to disallow the regulations has been passed.

(4)  For the purposes of this section, where a motion to disallow a regulation or a section, division or part of a regulation is passed by a House of Parliament –

(a) the motion has the effect of annulling only that regulation or that section, division or part, as the case may be; and

(b) the remainder of the regulations is taken to be approved by that House.

(4A)  [Section 29 Subsection (4A) inserted by No. 18 of 1999, s. 42, Applied:14 May 1999] The regulations may confer power on the Supreme Court to review any determination of the Board that is adverse to the interests of a person claiming to be entitled to a benefit under this Act and to make any declaration as to that entitlement as the Court considers appropriate.

(5)  [Section 29 Subsection (5) amended by No. 5 of 1995, s. 10 ][Section 29 Subsection (5) amended by No. 40 of 1996, s. 4 and Sched. 2 ]The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or the abolition of the Trust and, without limitation, may provide that any functions, powers, rights, duties and authorities conferred by, or arising from –

(a) the repealed Act or any other Act amended or repealed by this Act; or

(b) an arrangement or agreement under which services formerly or currently provided by the State are transferred to another person, where the arrangement or agreement is declared by the Minister by notice in the Gazette to be a transfer arrangement for the purposes of the regulations –

are to continue in force with such modifications as may be provided by the regulations.

(5A)  [Section 29 Subsection (5A) inserted by No. 18 of 1999, s. 42, Applied:14 May 1999] The regulations may contain provisions adjusting a person's entitlement to a lump sum or pension benefit in order to satisfy the requirements of the relevant law of the Commonwealth.

(6)  [Section 29 Subsection (6) amended by No. 40 of 1996, s. 4 and Sched. 2 ]Before proposed regulations are submitted to the Governor, the Board must, if appropriate to do so, provide the Minister with a statement as to the likely cost to the State arising from the proposed regulations.

(7)  [Section 29 Subsection (7) amended by No. 40 of 1996, s. 4 and Sched. 2 ]The regulations may, in such cases as may be specified in them, require any document, information or particulars required by or under the regulations to be furnished or given to the Minister or to the Board to be verified by a statutory declaration.

(8)  The regulations may be made subject to such conditions, or be made so as to apply differentially to any class of members according to such factors as may be specified in them or according to such limitations or restrictions, whether as to time or circumstances or otherwise, as may be so specified.

(9)  The regulations may provide that it is an offence, punishable on summary conviction, for a person to contravene any of them and may provide in respect of any such offence for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(10)  [Section 29 Subsection (10) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The regulations may authorize any matter or thing to be from time to time determined, applied or regulated by any person or body specified in the regulations and, without limitation, may provide for the Minister to appoint a chief executive officer of the Board and may also provide for the conditions of appointment and the powers, functions and duties of the chief executive officer.

29A.   Continuation and dissolution of Trust

[Section 29A Inserted by No. 5 of 1995, s. 11 ]

(1)  The Trust is continued in existence until 31 October 1995 but only for the purpose of providing a statement of accounts and annual report and Schedules 3 and 4 , as in force on 30 June 1995, continue to apply with respect to members and meetings of the Trust.

(2)  On 31 October 1995 the Trust is dissolved and its members cease to hold office as such.

(3)  The transitional and savings provisions specified in Schedule 3 have effect.

29B.   Members of boards of statutory authorities

[Section 29B Inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000]

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

(2)  If a person referred to in subsection (1) has been admitted to, and made contributions to, the contributory scheme before the commencement of this section –

(a) that person ceases to be a member of that scheme on that commencement; and

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

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

(3)  For the purposes of subsection (2)(c) , the Board is to credit interest on employer superannuation contributions made in respect of that person for the relevant period at the rate credited to members of the accumulation scheme in the absence of an election for investment choice under the Trust Deed.

(4)  An action does not lie against the Crown, the Board, any member of the Board, the chief executive officer of the Board or any other officer of the Board by reason of the operation of this section or in respect of any advice given, or statement made, by or on behalf of the Board, arising from, or for the purpose of, his or her admission to the contributory scheme as mentioned in this section.

(5)  Where a person is appointed as a member of a board –

(a) he or she is not eligible by reason only of that appointment to become a member of the contributory scheme; and

(b) the application of the Public Sector Superannuation Reform Act 1999 extends to that person as if he or she were an employee for the purposes of that Act; and

(c) subject to subsection (6) , he or she is to be a member of the accumulation scheme.

(6)  A member of a board may elect to become a member of a complying superannuation scheme other than the accumulation scheme.

(7)  A member of a board is entitled to employer superannuation contributions at the rate specified in the Public Sector Superannuation Reform Act 1999 .

(8)  Where an election is made under subsection (6) , the relevant statutory authority is not required to pay superannuation contributions into a complying superannuation scheme if that scheme does not accept payment by electronic funds transfer.

30.   Amendment of Acts

(1)  Each Act that is specified in Schedule 6 is amended in the manner specified in that Schedule.

(2)  The Retirement Benefits Act 1982 is amended in the manner specified in Schedule 7 .

31.   Transitional and savings provisions

The transitional and savings provisions specified in Schedule 8 have effect.

32.   Repeals

The Acts that are specified in Schedule 9 are repealed.

33.   

[Section 33 Repealed by No. 40 of 1996, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

SCHEDULE 1 - Membership of Board

[Schedule 1 Amended by No. 40 of 1996, s. 4 and Sched. 2 ]

Section 8 (4)

1.   Term of office

Subject to this Schedule, a member of the Board is to be appointed for such term, not exceeding 3 years, as is specified in the instrument of his or her appointment and is, if qualified, eligible for reappointment from time to time for such term, not exceeding 3 years, as is specified in the instrument of his or her reappointment.

2.   Provisions relating to members

Where, by or under any Act, provision is made requiring the holder of an office to devote the whole of his or her time to the duties of his or her office, that provision does not operate to disqualify him or her from holding that office and also the office of a member of the Board or from accepting and retaining any remuneration payable to a member of the Board under clause 4 .

3.   Office of member not an office or place of profit

The office of a member of the Board is not, for the purposes of any Act, to be taken to be an office or place of profit under the Crown.

4.   Remuneration of members

(1) Each member of the Board is entitled to be paid such remuneration (including travelling and sustenance allowances) as the Governor may from time to time determine in respect of him or her.

(2) The remuneration paid under subclause (1) to a member of the Board is to be a charge against the Board's revenue.

5.    State Service Act 2000 not to apply

[Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The provisions of the State Service Act 2000 do not apply to or in respect of the appointment or election of a member of the Board and a member of the Board is not, in his or her capacity as such a member, subject to the provisions of that Act during his or her term of office.

6.   Appointment of substitute to act during absence of member of Board

(1) The Governor may appoint any person to act in the office of a member of the Board while that member is absent from his or her office through illness or any other cause.

(2) A member of the Board is, for the purposes of subclause (1) , to be taken to be absent from his or her office if there is a vacancy in that office which has not been filled in accordance with clause 8 .

(3) A person is not concerned to inquire whether or not any occasion has arisen requiring or authorizing a person to act in the office of a member of the Board, and all things done, or omitted to be done, by that person while so acting are to be as valid, and are to have the same consequences, as if they had been done, or omitted to be done, by that member.

7.   Vacation of office

(1) A member of the Board is taken to have vacated his or her office –

(a) when he or she dies; or

(b) if he or she becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration or estate for their benefit; or

(c) if he or she is absent from 3 consecutive ordinary meetings of the Board of which reasonable notice has been given to him or her, either personally or in the ordinary course of post, unless on leave granted by the Minister; or

(d) [Schedule 1 Amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999] if he or she becomes unable to perform competently the duties of the office;

(e) if he or she is convicted in the State of a crime or an offence which is punishable by imprisonment for 12 months or upwards, or if he or she is convicted elsewhere than in the State of an offence which, if committed in the State, would be a crime or an offence so punishable or if he or she has been convicted, whether in the State or elsewhere, of a crime or an offence for which he or she has been sentenced to imprisonment; or

(f) if he or she resigns his or her office by writing under his or her hand addressed to the Governor and the Governor accepts the resignation; or

(g) if, having been appointed by virtue of his or her holding a particular office, the member ceases to hold that office; or

(h) if he or she is removed from office under subclause (2) .

(2) Where a member of the Board has been elected or chosen in accordance with the regulations, the Governor may remove that member from office if satisfied that he or she is no longer qualified to be so elected or chosen.

8.   Filling of casual vacancies

On the occurrence of a vacancy in the office of a member of the Board, the Governor must appoint a person to the vacant office for the balance of his or her predecessor's term of office.

9.   Validity of proceedings

(1) No act or proceeding of the Board or of a person acting under a direction of the Board is invalidated or prejudiced by reason only of the fact that at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the office of a member of the Board.

(2) All acts and proceedings of the Board or of a person acting under a direction of the Board are, notwithstanding the subsequent discovery of a defect in the appointment or election of a member of the Board or that a person was disqualified from acting as, or incapable of being, a member of the Board, as valid as if the member had been duly appointed or elected and was qualified to act as, or capable of being, a member of the Board and as if the Board had been fully constituted.

10.   Presumptions

In any proceedings by or against the Board, unless evidence is given to the contrary, no proof is required of –

(a) the constitution of the Board; or

(b) any resolution of the Board; or

(c) the appointment or election of a member of the Board; or

(d) the presence of a quorum at a meeting of the Board.

SCHEDULE 2 - Meetings of Board

Section 8 (5)

1.   Convening of meetings of the Board

Meetings of the Board may be convened by the President of the Board or by any 2 members of the Board.

2.   Procedure at meetings

(1) Four members of the Board are required for a quorum at a duly convened meeting of the Board.

(2) A duly convened meeting of the Board at which a quorum is present is competent to transact any business of the Board.

(3) [Schedule 2 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] [Schedule 2 Amended by No. 19 of 1999, Sched. 1, Applied:15 May 1999] Subject to subclause (5) , questions arising at a meeting of the Board are to be determined by a majority of two-thirds of the votes of the members present and voting, excluding the President.

(4) Where the voting on a question arising at a meeting of the Board is equal, the question is to be postponed until the next meeting of the Board and notice of the question and of the fact that the voting on it was equalis to be given in the notice calling that last-mentioned meeting.

(5) [Schedule 2 Amended by No. 19 of 1999, Sched. 1, Applied:15 May 1999] [Schedule 2 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] If, after 3 meetings of the Board, the voting on a question which has been postponed in accordance with subclause (4) is again equal, the President may exercise a casting vote at the next meeting at which the question is again considered.

3.   Chairperson

(1) The President of the Board must preside at all meetings of the Board at which he or she is present.

(2) If the President of the Board is not present at a meeting of the Board, the Deputy President of the Board, or, if he or she is also absent from the meeting, such other member of the Board as the members present elect, must preside at that meeting.

(3) [Schedule 2 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The President of the Board may only exercise a vote as provided by clause 2(5).

4.   Minutes

The Board must cause full and accurate minutes to be kept of its proceedings at meetings.

5.   General procedure

The procedure for the calling of, and for the conduct of business at, the meetings of the Board is, subject to any procedure that is specified in this Schedule, to be as determined by the Board.

SCHEDULE 3 - Transitional and savings provisions arising from dissolution of Retirement Benefits Fund Investment Trust

[Schedule 3 Substituted by No. 5 of 1995, s. 12 ]

Section 29A (3)

1.   Transfer of staff of Trust

The Minister may, on the recommendation of the Board and by notice published in the Gazette before 1 July 1995, specify persons holding office as officers of the Trust who on that day –

(a) are to become subject to the Tasmanian State Service Act 1984 ; or

(b) are to be employed in the administration of this Act on terms and conditions determined by the Board.

2.   Consequences of transfer of officers of Trust

(1) An officer of the Trust who is transferred under clause 1 –

(a) is not entitled to receive any payment or other benefit by reason only of the fact that he or she has ceased to be employed by the Trust; and

(b) retains all existing and accruing rights to leave as if his or her service as an employee were a continuation of his or her service as an officer of the Trust; and

(c) if the officer elects, by notice in writing given to the Trust before 30 June 1995, that this paragraph is to apply to him or her, is taken to be compulsorily retired on that day for the purposes of the Long Service Leave (State Employees) Act 1994 .

(2) Subclause (1) (b) does not apply to the rights of an officer of the Trust to recreation leave or long service leave if arrangements have been made for payment to the officer for loss of those rights.

(3) Where an officer of the Trust is a contributor to the Scheme, nothing in this Schedule is taken to affect his or her rights or obligations as such.

3.   Transfer of property of Trust, &c.

(1) On 1 July 1995 –

(a) any estate or interest in land and any money, investments or other property of the Trust are transferred to and vest in the Board; and

(b) all obligations and liabilities of the trust that are subsisting before that day become obligations and liabilities of the Board.

(2) On and after 1 July 1995 –

(a) any debt, money or claim, whether liquidated or unliquidated, that, immediately before that day, was payable to, or recoverable by, the Trust is to be a debt, money or a claim payable to, or recoverable by, the Board, as the case may be; and

(b) any debt due from, money payable by or any other claim, whether liquidated or unliquidated, enforceable against, the Trust immediately before that day becomes a debt due from, money payable by or a claim enforceable against, the Board.

4.   Construction of instruments

(1) This clause applies to an instrument which was in force immediately before 1 July 1995 and in which there is a reference to the Trust.

(2) An instrument to which this clause applies has effect on and from 1 July 1995 as if –

(a) the reference were a reference to the Board; or

(b) if the case so requires, the reference included a reference to the Board –

unless the context or subject-matter of the instrument otherwise indicates or requires.

5.   Continuation of proceedings

(1) Any legal or other proceedings that might, before 1 July 1995, have been continued or instituted by, or against, the Trust may, on and after that day, be continued or instituted by, or against, the Board.

(2) A judgment or order of a court obtained in legal proceedings by or against the Trust may be enforced by or, as the case may be, against the Board.

6.   Powers of Board in respect of matters arising under clauses 4 and 5

On and after 1 July 1995 –

(a) the Board may, in addition to pursuing any other remedies or exercising any other powers that may be available to it, pursue the same remedies for the recovery of debts, money and claims referred to in clause 3 (2) that are payable to, or recoverable by, the Board and for the prosecution of proceedings referred to in clause 5 as the Trust might have done but for the enactment of this Schedule; and

(b) the Board may enforce and realise any security or charge existing immediately before that day in favour of the Trust and may exercise any powers conferred under the security or charge on the Trust as if it were a security or charge in favour of the Board.

7.   Contracts and agreements

Any contract, agreement, arrangement or undertaking entered into by the Trust, if not executed, discharged or otherwise terminated before 1 July 1995, is taken to be a contract, agreement, arrangement or undertaking entered into with the Board.

8.   Statement of accounts and annual report

It is the duty of the Trust to prepare and submit to the Board before 31 October 1995 a statement of accounts and an annual report relating to the year ended on 30 June 1995 and, for the purposes of this clause, the Board must –

(a) allow the Trust to have the services of employees and access to all relevant documents and records; and

(b) pay all reasonable costs incurred by the Trust.

9.   Liabilities of Trust

Any liability incurred by the Trust under section 23 as in force before 1 July 1995 is to be paid out of the Consolidated Fund without further appropriation than this clause.

10.   Instruments by delegates of Trust

An instrument purporting to be signed by a person acting as delegate of the Trust under section 24 as in force before 1 July 1995 in his or her capacity as such a delegate –

(a) may be received in evidence in all courts and before all persons acting judicially as if it were an instrument executed by the Trust under seal; and

(b) until the contrary is proved, is taken to be an instrument signed by a delegate of the Trust under that section.

11.   Exemption from tax for documents under this Schedule

(1) In this clause, State tax means application or registration fees, stamp duty or any other tax, duty, fee or charge imposed by any Act or law of Tasmania.

(2) State tax is not payable in respect of any document prepared, or transaction effected, under this Schedule.

SCHEDULE 4

[Schedule 4 Repealed by No. 5 of 1995, s. 12 ]

SCHEDULE 5

[Schedule 5 Repealed by No. 5 of 1995, s. 12 ]

SCHEDULE 6 - Amendment of Acts

Section 30 (1)

The amendments effected by this Schedule have been incorporated into the authorised version of the following Acts:

(a) Retirement Benefits Legislation (Miscellaneous Amendments) Act 1991 ;

(b) Tasmanian Government Insurance Office (Sale) Act 1993 ;

(c) TT-Line Arrangements Act 1993 .

SCHEDULE 7

The amendments effected by this Schedule have been incorporated into the authorised version of the Retirement Benefits Act 1982 .

SCHEDULE 8 - Transitional and Savings Provisions

[Schedule 8 Amended by No. 40 of 1996, s. 3 and Sched. 1 ][Schedule 8 Amended by No. 17 of 1996, s. 30 ]

Section 31

1.   Continuation of pensions payable under the repealed Act

(1) Subject to this Act, a pension or lump sum benefit of any kind that is payable under the repealed Act immediately before the commencement day continues, on and after that day, to be payable as a pension or lump sum benefit of that kind under the regulations.

(2) The Board must continue to pay every fortnight in accordance with the regulations an instalment of a pension to which subclause (1) refers that is due on or after the commencement day.

2.   Members of Board and Trust immediately before commencement day

(1) A person holding office as a member of the Board under the repealed Act immediately before the commencement day, including the President and Deputy President of the Board, continues, unless he or she is removed from office or vacates that office under this Act, to hold that office –

(a) for the remainder of the period specified in his or her instrument of appointment; or

(b) for the remainder of the period up to and including the day on which an election is held as provided by the regulations –

whichever is the earlier.

(3) A person holding office as a member of the Trust under the repealed Act immediately before the commencement day, including the chairperson and deputy chairperson of the Trust, continues to hold that office, unless he or she is removed from office or vacates that office under this Act, for the remainder of the period specified in his or her instrument of appointment.

3.   Officers of Board and Trust

A person appointed under section 14 or 16 of the repealed Act as an officer to assist the Board or the Trust and who holds that office immediately before the commencement day becomes, on that day, an officer appointed in accordance with this Act to assist the Board or the Trust on the same terms and conditions as those applicable to his or her office immediately before that day.

4.   Bank accounts

(1) An account opened with a bank by the Board that is in existence immediately before the commencement day is taken, on and after that day, to be an account maintained by the Board with a bank approved by the Minister.

(2) An account opened with a bank by the Trust that is in existence immediately before the commencement day is taken, on and after that day, to be an account maintained by the Trust with a bank approved by the Minister.

5.   Accounts and records

(1) The accounts and records kept by the Board under the repealed Act that are in existence immediately before the commencement day are taken, on and after that day, to be accounts and records kept by the Board in a form, and containing such particulars, as are approved by the Minister.

(2) The accounts and records kept by the Trust under the repealed Act that are in existence immediately before the commencement day are taken, on and after that day, to be accounts and records kept by the Trust in a form, and containing such particulars, as are approved by the Minister.

6.   Questions and appeals under the repealed Act

(1) Any question under the repealed Act that has commenced and not been finally determined by the Board before the commencement day may, on and after that day, be finally determined by the Board as if this Act had not been enacted.

(2) An appeal under the repealed Act that has commenced and not been finally disposed of before the commencement day may, on and after that day, be finally disposed of as if this Act had not been enacted.

7.   Effect of repeals on rights of action

Without limiting the effect of section 16(1) of the Acts Interpretation Act 1931 , the repeals effected by this Act do not revive any right of action that was not existing immediately before the commencement day.

8.   Contributions by existing members

(1) Subject to this clause, a person who immediately before the commencement day was contributing to the Fund must, on and after that day, continue to contribute to the Fund as provided in the regulations.

(2) Where a person to whom subclause (1) applies was contributing to the Fund at a rate that is not that applicable to the 40 years' service scheme under the repealed Act , that person is taken to have made an election to continue to contribute at that rate.

(3) In respect of a person to whom subclause (1) applies, contributions are to be deducted from each periodical pay in accordance with the regulations and paid to the Fund.

(4) Where a person to whom subclause (1) relates was, immediately before the commencement day, making supplementary contributions in accordance with the repealed Act , that person is, on and after that day, taken to have made an election to continue to make those supplementary contributions as voluntary contributions.

9.   Savings in respect of elections, directions and delegations

(1) The repeals effected by section 32 do not affect –

(a) the effect of any election, decision, direction, resolution, delegation, certificate, suspension or authorization made or granted by the Board under the repealed Act or of any condition attached to any such election, decision, direction, resolution, delegation, certificate, suspension or authorization; or

(b) the effect of any decision, resolution or delegation made by the Trust.

(2) A delegation by the Board or the Trust under the repealed Act that is in force immediately before the commencement day continues in force on and after that day as a delegation by the Board or the Trust, as the case may be, under this Act.

(3) A person who is eligible to make an election under the repealed Act within a period which has not expired before the commencement day continues to be so eligible notwithstanding the repeals effected by section 32 .

10.   Orders relating to the adjustment of pensions

Notwithstanding the repeals effected by this Act, an order made in respect of the half-year that commenced on the commencementday remains in force in respect of that half-year in relation to pensions under this Act.

11.   Persons not obliged to contribute to the Fund

Where a person who, immediately before the commencement day, was not obliged to contribute under the repealed Act , that person continues, on and after that day, not to be obliged to contribute to the Fund under the regulations.

12.   Transfer of property of Accumulation Fund

(1) On the commencement day –

(a) all the money in the Accumulation Fund that, immediately before that day, is not invested by the SAF Board is to be paid to the Board and is to become part of the Fund; and

(b) all the investments of money in the name of the SAF Board or the Accumulation Fund that are subsisting immediately before that day are transferred to and vest in the Board; and

(c) any estate or interest in land or other property that is not property referred to in paragraph (a) or (b) and all rights of the SAF Board that are subsisting before that day are transferred to and vest in the Board; and

(d) all obligations and liabilities of the SAF Board that are subsisting before that day become obligations and liabilities of the Board.

(2) On the commencement day, all voluntary contributions and interest on those contributions that, immediately before that day, have been made to the Accumulation Fund become contributions to the Retirement Benefits Fund.

(3) Any money, investment, estate or interest in land or other property of the Accumulation Fund transferred to the Board under this clause may be invested by the Board with the Trust or with any investment manager in any manner in which the Board thinks fit.

(4) On and after the commencement day –

(a) any debt, money or claim, whether liquidated or unliquidated, that, immediately before that day, was payable to the Accumulation Fund or recoverable by the SAF Board becomes a debt, money or a claim payable to the Fund or recoverable by the Board, as the case may be; and

(b) any debt due from, money payable by or any other claim, whether liquidated or unliquidated, enforceable against, the SAF Board immediately before that day becomes a debt due from, money payable by or a claim enforceable against, the Board.

13.   Continuation of proceedings

Any legal or other proceedings that might, before the commencement day, have been continued or instituted by, or against, the SAF Board may, on or after that day, be continued or instituted by, or against, the Board.

14.   Powers of the Board in respect of matters arising under clauses 12 and 13

On the expiration of the winding up period –

(a) the Board may, in addition to pursuing any other remedies or exercising any other powers that may be available to it, pursue the same remedies for the recovery of debts, money and claims referred to in clause 12 (4) that are payable to, or recoverable by, the Board and for the prosecution of proceedings referred to in clause 13 as the SAF Board might have done but for the enactment of this Act; and

(b) the Board may enforce and realize any security or charge existing immediately before that day in favour of the SAF Board and may exercise any powers conferred under the security or charge on the SAF Board as if it were a security or charge in favour of the Board.

15.   Contracts and agreements

Any contract, agreement, arrangement or undertaking entered into by the SAF Board, if not executed, discharged or otherwise terminated before the commencement day, is taken to be a contract, agreement, arrangement or undertaking entered into with the Board.

15A.   Board to undertake SAF Board's actions

The Board is to undertake any action that immediately before 28 June 1995 the SAF Board was required to undertake.

16.   Election to the SAF Board

Any election made under the SAF Agreement to the SAF Board that has not been finally determined immediately before the commencement day is taken, on that day, to have been made to the Board.

17.   Annual reports

(1) If, before the commencement day, the SAF Board has not complied with a requirement made under the SAF Agreement relating to an annual report or a statement of accounts, where the report or statement was required to be made in respect of a period which expired before that day, the Board must comply with the requirement.

(2) The first annual report and statement of accounts of the Board prepared under the regulations is to contain such further matters in respect of the SAF Board, except the matters referred to in subclause (1) , as would have been required to be included in an annual report or statement of accounts of the SAF Board if this Act had not been enacted.

18.   Where –

(a) a woman was entitled, as the widow of a contributor or pensioner, to a pension under the Superannuation Act 1938 , the Retirement Benefits Act 1970 or the Retirement Benefits Act 1982 ; and

(b) that entitlement has ceased by virtue of subsection (9) of section 36 of the Retirement Benefits Act 1982 as in force immediately before 1 July 1991 –

that woman, if otherwise entitled under that section, is to be taken to be entitled to the pension on and from 1 July 1990 as if that pension had not been suspended.

SCHEDULE 9 - Acts repealed

Section 32