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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 76
As laid on the table and read a first time, 24 March 2004
South Australia
Statutes
Amendment (Miscellaneous Superannuation Measures) Bill 2004
A Bill For
An Act to amend the Police Superannuation Act 1990,
the Southern State Superannuation Act 1994 and the Superannuation Act
1988.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Police
Superannuation Act 1990
4 Amendment of section 4—Interpretation
5 Insertion of sections 26A, 26B and
26C
26A Commutation to pay deferred
superannuation contributions surcharge—contributor
26B Commutation to pay deferred
superannuation contributions surcharge following death of contributor
26C Withheld amount
6 Amendment of section 35A—Commutation
to pay deferred superannuation contributions surcharge
7 Substitution of heading to Part 5A
8 Amendment of section 38D—Investor's
accounts
9 Insertion of Part 5A Division 2 and
Division 3
Division 2—Rollover accounts
38EA Roll over of benefits from another fund
or scheme
38EB Rollover accounts
Division 3—Investment choice
38EC Investment choice
10 Amendment of section 40—Effect of
workers compensation etc on pension
11 Repeal of section 42B
12 Amendment of section 48—Power to
obtain information
Part 3—Amendment of Southern
State Superannuation Act 1994
13 Amendment of section 3—Interpretation
14 Insertion of sections 35AA, 35AAB and
35AAC
35AA Commutation to pay deferred
superannuation contributions surcharge—member
35AAB Commutation to pay deferred superannuation
contributions surcharge following death of member
35AAC Withheld amount
15 Amendment of section 41—Power to
obtain information
Part 4—Amendment of
Superannuation Act 1988
16 Amendment of section 4—Interpretation
17 Amendment of section 20A—Contributors'
accounts
18 Insertion of sections 32B, 32C and 32D
32B Commutation to pay deferred
superannuation contributions surcharge—contributor
32C Commutation to pay deferred
superannuation contributions surcharge following death of contributor
32D Withheld amount
19 Amendment of section 40A—Commutation
to pay deferred superannuation contributions surcharge
20 Amendment of section 45—Effect of
workers compensation etc on pension
21 Amendment of
section 54—Power to obtain information
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Statutes Amendment (Miscellaneous
Superannuation Measures) Act 2004.
(1) Subject
to subsection (2), this Act will come into operation on a day to be fixed by
proclamation.
(2) Sections
10 and 20 may not be brought into operation before 1 July 2004.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Police Superannuation Act 1990
4—Amendment of section 4—Interpretation
(1) Section 4(1)—after the definition of contributor
insert:
deferred superannuation contributions surcharge in relation to a contributor means the
amount that the contributor is liable to pay the Commissioner of Taxation under
section 15(6) of the Superannuation Contributions Tax Act;
(2) Section 4(1)—after the definition of spouse
insert:
Superannuation Contributions Tax Act means the Superannuation Contributions
Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and
Collection Act 1997 of the Commonwealth;
(3) Section 4(1)—after the definition of the
Superannuation Funds Management Corporation of South Australia insert:
surcharge notice means a notice issued by the Commissioner
of Taxation under section 15(7) of the Superannuation Contributions Tax Act.
5—Insertion of sections 26A, 26B and 26C
After section 26 insert:
26A—Commutation
to pay deferred superannuation contributions surcharge—contributor
(1) A contributor who is liable for a deferred
superannuation contributions surcharge as a result of a benefit becoming
payable to the contributor may apply to the Board, in accordance with this
section—
(a) to receive part of the benefit in the form of a commutable
pension; and
(b) to fully commute the pension.
(2) A contributor who has become entitled to a
benefit, or will shortly become entitled to a benefit, may—
(a) estimate the amount of the surcharge the contributor will
become liable to pay (the estimated surcharge amount); and
(b) request the Board, in the approved form, to—
(i) withhold from the
contributor's benefit an amount equal to the estimated surcharge amount (the withheld
amount); and
(ii) pay
the balance of the benefit to the contributor (being, in the case of a benefit
to which the contributor is yet to become entitled, a payment after the
entitlement arises),
and the Board must, subject to subsection (4), comply
with the contributor's request.
(3) If a contributor has made a request under
subsection (2)(b), the contributor must, before the expiration of 2 months
following the issue of a surcharge notice in respect of the contributor, advise
the Board in the approved form that the notice has been issued and the Board
must, within 7 days of receiving that advice—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the contributor is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the contributor—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(4) The Board may reject an application under
subsection (1) if—
(a) it is not satisfied that, if the application were accepted,
the resulting lump sum will be applied in payment of the surcharge; or
(b) the contributor fails to satisfy the Board that the
contributor has, or will have, a surcharge liability to the Commissioner of Taxation.
(5) The
commutation factors to be applied in the commutation of a pension under this
section will be determined by the Treasurer on the recommendation of an
actuary.
26B—Commutation
to pay deferred superannuation contributions surcharge following death of
contributor
(1) If a contributor who is liable for a
deferred superannuation contributions surcharge dies—
(a) having made a request of the Board under section 26A
for part of his or her benefit to be withheld but before receiving a surcharge
notice; or
(b) having received a surcharge notice but before requesting
commutation of his or her pension under section 26A,
the contributor's spouse or, if the contributor is not survived by
a spouse, the contributor's legal representative, may, before the expiration of
the period of 2 months immediately following the contributor's death or the
issue of the surcharge notice (whichever is the later), apply to the Board—
(c) to receive the amount withheld by the Board on behalf of the
deceased contributor under section 26A in the form of a commutable
pension; and
(d) to fully commute the pension.
(2) The Board must, on receipt of an
application under subsection (1)—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the spouse or estate is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the spouse or estate—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(3) If a contributor dies without having made a
request under section 26A, the contributor's spouse or, if the contributor
is not survived by a spouse, the contributor's legal representative,
may—
(a) estimate the amount of the surcharge the spouse or estate
will become liable to pay (the estimated surcharge amount); and
(b) request the Board, in the approved form, to—
(i) withhold from the spouse's benefit or the
benefit payable to the estate an amount equal to the estimated surcharge amount
(the withheld amount); and
(ii) pay the balance of the benefit to the spouse or estate,
and the Board must, subject to subsection (6), comply
with the request.
(4) An
application under subsection (3) must be made in writing to the Board
before payment of the benefit to the spouse or legal representative.
(5) The spouse or legal representative must,
before the expiration of 2 months following the issue of a surcharge notice in
respect of the contributor, advise the Board in the approved form that the
notice has been issued and the Board must, within 7 days of receiving that
advice—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the spouse or estate is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the spouse or estate—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(6) The
Board may reject an application under subsection (1) or (3) if it is not
satisfied that, if the application were accepted, the resulting lump sum will
be applied in payment of the surcharge or be used to reimburse the deceased
contributor's estate, or the spouse or other person who has paid the surcharge
on behalf of the estate.
(7) The
commutation factors to be applied in the commutation of a pension under this
section will be determined by the Treasurer on the recommendation of an
actuary.
(8) In this section—
legal representative, in relation to a deceased contributor,
means a person—
(a) holding
office as executor of the will of the deceased contributor where probate of the
will has been granted or resealed in South Australia or any other State or a
Territory; or
(b) holding office in South Australia or any other State or a
Territory as administrator of the estate of the deceased contributor.
26C—Withheld
amount
An amount withheld under section 26A
or 26B—
(a) must be paid by the Treasurer into the Consolidated Account
or a special deposit account established by the Treasurer for that purpose; and
(b) will
be charged against the relevant contributor's contribution account in
accordance with section 14 as if the amount had been paid to the contributor;
and
(c) will be credited with interest at a rate determined by the
Treasurer; and
(d) may be paid to the contributor (or the contributor's spouse
or legal representative)—
(i) in accordance with
section 26A or 26B; or
(ii) at the direction of the Board if the Board—
(A) has
not, within 2 years of withholding the amount, received advice that a surcharge
notice has been issued in respect of the contributor; or
(B) considers, at any time, there is other good reason for doing
so.
6—Amendment of section 35A—Commutation to pay deferred superannuation contributions surcharge
(1) Section 35A(2)—delete
"Commonwealth Act" and substitute:
Superannuation Contributions Tax Act
(2) Section 35A(3)(a)(i)—delete "Commonwealth Act" and substitute:
Superannuation Contributions Tax Act
(3) Section 35A(4)—delete
"Commonwealth Act" and substitute:
Superannuation Contributions Tax Act
(4) Section
35A(8)—delete subsection (8)
7—Substitution of heading to Part 5A
Heading to Part 5A—delete the heading and
substitute:
Part 5A—Contributors' investment accounts
and rollover accounts
Division 1—Investment accounts
8—Amendment of section 38D—Investor's accounts
Section 38D(3)(a)—after
"financial year" insert:
or, if an investor has made a nomination under Division 3,
the net rate of return achieved by the class of investments, or the combination
of classes of investments, nominated by the investor
9—Insertion of Part 5A Division 2 and Division 3
Part 5A—after Division 1 insert:
Division 2—Rollover
accounts
38EA—Roll
over of benefits from another fund or scheme
(1) The
Board may, on such terms and conditions as it thinks fit, accept the payment of
benefits on behalf of a contributor from another superannuation fund or scheme.
(2) Money
that is rolled over to the Scheme from another superannuation fund or scheme
must be paid to the Treasurer.
(3) The
Treasurer must pay into the Fund from the Consolidated Account (which is
appropriated to the necessary extent) or from a special deposit account
established by the Treasurer for the purpose periodic payments reflecting the
payments made to the Treasurer under this section.
38EB—Rollover
accounts
(1) The
Board must maintain a rollover account in the name of a contributor for whom an
amount of money has been carried over from another superannuation fund or
scheme to the Scheme.
(2) A
contributor's rollover account must be credited with the money referred to in
subsection (1) and must be debited with any payment that is, in pursuance
of this Act, to be charged against the account.
(3) At
the end of each financial year, each rollover account that has a credit balance
will be adjusted to reflect a rate of return determined by the Board for the
relevant financial year.
(4) In determining a rate of return for the
purposes of subsection (3), the Board should have regard to—
(a) the
net rate of return achieved by investment of the relevant division of the Fund
over the financial year or, if a contributor has made a nomination under
Division 3, the net rate of return achieved by the class of investments, or the
combination of classes of investments, nominated by the contributor; and
(b) the desirability of reducing undue fluctuations in the rate
of return on contributors' rollover accounts.
(5) If,
in pursuance of subsection (4)(b), the Board determines a rate of return
that is at variance with the net rate of return achieved by investment of the
relevant division of the Fund, the Board must include its reasons for the determination
in its report for the relevant financial year.
(6) If
it is necessary to determine the balance of a contributor's rollover account
and the Board has not yet determined a rate of return in relation to the
relevant financial year, the balance will be determined by applying a
percentage rate of return on accounts estimated by the Board.
(7) A
balance determined under subsection (6) will not be adjusted when a rate
of return is subsequently determined under subsection (3).
(8) The
Board must, within six months of the end of each financial year, provide each
contributor in whose name a rollover account is maintained with a written
statement of the amount standing to the credit of the contributor's rollover
account at the end of the financial year and the amount by which the balance of
the account has been adjusted pursuant to subsection (3) in respect of
that financial year.
(9) A
reference in this section to "rate of return" is a reference to a
positive or negative rate of return.
Division 3—Investment
choice
38EC—Investment
choice
(1) If
the Fund is invested in different classes of investments, the Board may, with
the agreement of the Superannuation Funds Management Corporation of South
Australia, permit contributors, on such terms and conditions as it thinks fit,
to nominate the class of investments, or the combination of classes of
investments, for the purpose of determining a rate of return under this Part.
(2) However,
a class of investments, or combination of classes of
investments, nominated by an investor for the purposes of determining a rate of
return under Division 1 must be the same as any class of investments, or
combination of classes of investments, nominated by the investor for the
purposes of determining a rate of return under Division 2.
(3) If
a contributor, after nominating a class of investments under
subsection (1), subsequently varies the nominated class of investments,
the Board may charge a fee (to be determined by the Board) to the contributor's
contribution account in a manner determined by the Board.
10—Amendment of section 40—Effect of workers compensation etc on pension
(1) Section 40(1)—after "during a
financial year" insert:
a contributor who is receiving, or would, but for this
subsection, be entitled to receive, a pension under another provision of this
Act is also receiving or entitled to receive
(2) Section 40(1)(a)
and (b)—delete paragraphs (a) and (b) and substitute:
(a) weekly payments of workers compensation; or
(b) in the case of a relevant contributor—income from
remunerative activities engaged in by the contributor,
(3) Section 40(1)(d)
and (e)—delete paragraphs (d) and (e) and substitute:
(d) if the contributor is a relevant contributor—
(i) the Board must
estimate the income (if any) that the contributor is likely to receive during
the financial year from remunerative activities engaged in by the contributor;
and
(ii) it must be assumed that the income estimated by the Board
will be paid at a uniform rate throughout the financial year;
(4) Section 40(1)(f)—after
"payments (if any) and" insert:
, if the contributor is a relevant contributor,
(5) Section 40(1)(g)—after
"the Board must" insert:
, if the contributor is a relevant contributor,
(6) Section 40(1a)—delete "subsection (1)(b)(i) and (ii)" and
substitute:
subsection (1)(a) and (b)
(7) Section 40(4)—after "receiving
them" insert:
unless—
(a) if the person is a contributor—the contributor has reached
the age of 60; or
(b) if the person is the spouse of a deceased contributor—the
contributor would have reached the age of 60 if he or she were still alive
(8) Section 40—after subsection (5) insert:
(6) In this section—
relevant contributor means a contributor—
(a) who has not reached the age of 60; and
(b) whose entitlement to receive a pension under another
provision of this Act does not relate to a pension granted on the basis of his
or her age.
Section 42B—delete the section
12—Amendment of section 48—Power to obtain information
(1) Section 48(1)—after "the
Commissioner," insert:
a workers compensation authority,
(2) Section 48—after subsection (6) insert:
(7) For
the purposes of any other Act or law, a workers compensation authority will be
taken, when acting under this section, to be disclosing information in the
course of official duties.
(8) In this section—
workers compensation authority includes any person or authority with
power to determine or manage claims for workers compensation.
Part 3—Amendment of Southern State Superannuation Act 1994
13—Amendment of section 3—Interpretation
(1) Section 3(1)—after the definition of contributions
insert:
deferred superannuation contributions surcharge in relation to a member means the amount
that the member is liable to pay the Commissioner of Taxation under section
15(6) of the Superannuation Contributions Tax Act;
(2) Section 3(1)—after the definition of the
State Scheme insert:
Superannuation Contributions Tax Act means the Superannuation Contributions
Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and
Collection Act 1997 of the Commonwealth;
(3) Section 3(1)—after the definition of the
Superannuation Funds Management Corporation of South Australia insert:
surcharge notice means a notice issued by the Commissioner
of Taxation under section 15(7) of the Superannuation Contributions Tax Act;
14—Insertion of sections 35AA, 35AAB and 35AAC
After section 35 insert:
35AA—Commutation
to pay deferred superannuation contributions surcharge—member
(1) A member who is liable for a deferred
superannuation contributions surcharge as a result of a benefit becoming
payable to the member may apply to the Board, in accordance with this section—
(a) to receive part of the benefit in the form of a commutable
pension; and
(b) to fully commute the pension.
(2) A member who has become entitled to a
benefit, or will shortly become entitled to a benefit, may—
(a) estimate the amount of the surcharge the member will become
liable to pay (the estimated surcharge amount); and
(b) request the Board, in the approved form, to—
(i) withhold from the
member's benefit an amount equal to the estimated surcharge amount (the withheld
amount); and
(ii) pay
the balance of the benefit to the member (being, in the case of a benefit to
which the member is yet to become entitled, a payment after the entitlement
arises),
and the Board must, subject to subsection (4), comply
with the member's request.
(3) If a member has made a request under
subsection (2)(b), the member must, before the expiration of 2 months
following the issue of a surcharge notice in respect of the member, advise the
Board in the approved form that the notice has been issued and the Board must,
within 7 days of receiving that advice—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the member is less than the withheld amount—a portion of the withheld amount
equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the member—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(4) The Board may reject an application under
subsection (1) if—
(a) it is not satisfied that, if the application were accepted,
the resulting lump sum will be applied in payment of the surcharge; or
(b) the member fails to satisfy the Board that the member has,
or will have, a surcharge liability to the Commissioner of Taxation.
(5) The
commutation factors to be applied in the commutation of a pension under this
section will be determined by the Treasurer on the recommendation of an
actuary.
35AAB—Commutation
to pay deferred superannuation contributions surcharge following death of
member
(1) If a member who is liable for a deferred
superannuation contributions surcharge dies—
(a) having made a request of the Board under section 35AA
for part of his or her benefit to be withheld but before receiving a surcharge
notice; or
(b) having received a surcharge notice but before requesting
commutation of his or her pension under section 35AA,
the member's spouse or, if the member is not survived by a spouse,
the member's legal representative, may, before the expiration of the period of
2 months immediately following the member's death or the issue of the surcharge
notice (whichever is the later), apply to the Board—
(c) to receive the amount withheld by the Board on behalf of the
deceased member under section 35AA in the form of a commutable pension;
and
(d) to fully commute the pension.
(2) The Board must, on receipt of an
application under subsection (1)—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the spouse or estate is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the spouse or estate—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(3) If a member dies without having made a
request under section 35AA, the member's spouse or, if the member is not
survived by a spouse, the member's legal representative,
may—
(a) estimate the amount of the surcharge the spouse or estate
will become liable to pay (the estimated surcharge amount); and
(b) request the Board, in the approved form, to—
(i) withhold from the spouse's benefit or the
benefit payable to the estate an amount equal to the estimated surcharge amount
(the withheld amount); and
(ii) pay the balance of the benefit to the spouse or estate,
and the Board must, subject to subsection (6), comply with
the request.
(4) An
application under subsection (3) must be made in writing to the Board
before payment of the benefit to the spouse or legal representative.
(5) The spouse or legal representative must,
before the expiration of 2 months following the issue of a surcharge notice in
respect of the member, advise the Board in the approved form that the notice
has been issued and the Board must, within 7 days of receiving that advice—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the spouse or estate is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the spouse or estate—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(6) The
Board may reject an application under subsection (1) or (3) if it is not
satisfied that, if the application were accepted, the resulting lump sum will
be applied in payment of the surcharge or be used to reimburse the deceased
member's estate, or the spouse or other person who has paid the surcharge on
behalf of the estate.
(7) The
commutation factors to be applied in the commutation of a pension under this
section will be determined by the Treasurer on the recommendation of an
actuary.
(8) In this section—
legal representative , in relation to a deceased member, means
a person—
(a) holding
office as executor of the will of the deceased member where probate of the will
has been granted or resealed in South Australia or any other State or a
Territory; or
(b) holding office in South Australia or any other State or a
Territory as administrator of the estate of the deceased member.
35AAC—Withheld
amount
An amount withheld under section 35AA
or 35AAB—
(a) must be retained in the Southern State Superannuation (Employers)
Fund; and
(b) will be credited with interest at the rate of return
determined by the Board under section 11; and
(c) may be paid to the member (or the member's spouse or legal
representative)—
(i) in accordance with
section 35AA or 35AAB; or
(ii) at the direction of the Board if the Board—
(A) has
not, within 2 years of withholding the amount, received advice that a surcharge
notice has been issued in respect of the member; or
(B) considers, at any time, there is other good reason for doing
so.
15—Amendment of section 41—Power to obtain information
(1) Section 41(1)—after "an employing
authority" insert:
, a workers compensation authority
(2) Section 41—after subsection (5) insert:
(6) For
the purposes of any other Act or law, a workers compensation authority will be
taken, when acting under this section, to be disclosing information in the
course of official duties.
(7) In this section—
workers compensation authority includes any person or authority with
power to determine or manage claims for workers compensation.
Part 4—Amendment of Superannuation Act 1988
16—Amendment of section 4—Interpretation
(1) Section 4(1)—after the definition of contributor
insert:
deferred superannuation contributions surcharge in relation to a contributor means the
amount that the contributor is liable to pay the Commissioner of Taxation under
section 15(6) of the Superannuation Contributions Tax Act;
(2) Section 4(1)—after the definition of standard
contribution rate insert:
Superannuation Contributions Tax Act means the Superannuation Contributions
Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and
Collection Act 1997 of the Commonwealth;
(3) Section 4(1)—after the definition of the
Superannuation Funds Management Corporation of South Australia insert:
surcharge notice means a notice issued by the Commissioner
of Taxation under section 15(7) of the Superannuation Contributions Tax Act;
17—Amendment of section 20A—Contributors' accounts
(1) Section 20A(4)(a)—after
"financial year" insert:
or, if a new scheme contributor has made a nomination under
subsection (4a), the net rate of return achieved by the class of investments,
or the combination of classes of investments, nominated by the contributor
(2) Section 20A—after subsection (4) insert:
(4a) If
the Fund is invested in different classes of investments, the Board may, with
the agreement of the Superannuation Funds Management Corporation of South
Australia, permit new scheme contributors, on such terms and conditions as it
thinks fit, to nominate the class of investments, or the combination of classes
of investments, for the purpose of determining the rate of return under this
section.
(4b) If a contributor, after nominating a class of investments
under subsection (4a), subsequently varies the nominated class of
investments, the Board may charge a fee (to be fixed by the Board) to the
contributor's contribution account in a manner determined by the Board.
18—Insertion of sections 32B, 32C and 32D
After section 32A insert:
32B—Commutation
to pay deferred superannuation contributions surcharge—contributor
(1) A contributor who is liable for a deferred
superannuation contributions surcharge as a result of a benefit becoming
payable to the contributor may apply to the Board, in accordance with this
section—
(a) to receive part of the benefit in the form of a commutable
pension; and
(b) to fully commute the pension.
(2) A contributor who has become entitled to a
benefit, or will shortly become entitled to a benefit, may—
(a) estimate the amount of the surcharge the contributor will
become liable to pay (the estimated surcharge amount); and
(b) request the Board, in the approved form, to—
(i) withhold from the
contributor's benefit an amount equal to the estimated surcharge amount (the withheld
amount); and
(ii) pay
the balance of the benefit to the contributor (being, in the case of a benefit
to which the contributor is yet to become entitled, a payment after the
entitlement arises),
and the Board must, subject to subsection (4), comply
with the contributor's request.
(3) If a contributor has made a request under
subsection (2)(b), the contributor must, before the expiration of 2 months
following the issue of a surcharge notice in respect of the contributor, advise
the Board in the approved form that the notice has been issued and the Board
must, within 7 days of receiving that advice—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the contributor is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the contributor—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(4) The Board may reject an application under
subsection (1) if—
(a) it is not satisfied that, if the application were accepted,
the resulting lump sum will be applied in payment of the surcharge; or
(b) the contributor fails to satisfy the Board that the
contributor has, or will have, a surcharge liability to the Commissioner of Taxation.
(5) The
commutation factors to be applied in the commutation of a pension under this
section will be determined by the Treasurer on the recommendation of an
actuary.
32C—Commutation
to pay deferred superannuation contributions surcharge following death of
contributor
(1) If a contributor who is liable for a
deferred superannuation contributions surcharge dies—
(a) having made a request of the Board under section 32B
for part of his or her benefit to be withheld but before receiving a surcharge
notice; or
(b) having received a surcharge notice but before requesting
commutation of his or her pension under section 32B,
the contributor's spouse or, if the contributor is not survived by
a spouse, the contributor's legal representative, may, before the expiration of
the period of 2 months immediately following the contributor's death or the
issue of the surcharge notice (whichever is the later), apply to the Board—
(c) to receive the amount withheld by the Board on behalf of the
deceased contributor under section 32B in the form of a commutable
pension; and
(d) to fully commute the pension.
(2) The Board must, on receipt of an
application under subsection (1)—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the spouse or estate is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the spouse or estate—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(3) If a contributor dies without having made a
request under section 32B, the contributor's spouse or, if the contributor
is not survived by a spouse, the contributor's legal representative,
may—
(a) estimate the amount of the surcharge the spouse or estate will
become liable to pay (the estimated surcharge amount); and
(b) request the Board, in the approved form, to—
(i) withhold from the spouse's benefit or the
benefit payable to the estate an amount equal to the estimated surcharge amount
(the withheld amount); and
(ii) pay the balance of the benefit to the spouse or estate,
and the Board must, subject to subsection (6), comply
with the request.
(4) An
application under subsection (3) must be made in writing to the Board
before payment of the benefit to the spouse or legal representative.
(5) The spouse or legal representative must,
before the expiration of 2 months following the issue of a surcharge notice in
respect of the contributor, advise the Board in the approved form that the
notice has been issued and the Board must, within 7 days of receiving that
advice—
(a) convert into a pension—
(i) if the amount of the surcharge payable by
the spouse or estate is less than the withheld amount—a portion of the withheld
amount equal to the amount payable; or
(ii) in any other case—the whole of the withheld amount; and
(b) immediately after converting the withheld amount, or a
portion of the withheld amount, into a pension under paragraph (a)—commute
the pension; and
(c) pay to the spouse or estate—
(i) the lump sum
resulting from the commutation of the pension; and
(ii) the balance (if any) of the withheld amount.
(6) The
Board may reject an application under subsection (1) or (3) if it is not
satisfied that, if the application were accepted, the resulting lump sum will
be applied in payment of the surcharge or be used to reimburse the deceased
contributor's estate, or the spouse or other person who has paid the surcharge
on behalf of the estate.
(7) The
commutation factors to be applied in the commutation of a pension under this
section will be determined by the Treasurer on the recommendation of an
actuary.
(8) In this section—
legal representative, in relation to a deceased contributor,
means a person—
(a) holding
office as executor of the will of the deceased contributor where probate of the
will has been granted or resealed in South Australia or any other State or a
Territory; or
(b) holding office in South Australia or any other State or a
Territory as administrator of the estate of the deceased contributor.
32D—Withheld amount
An amount withheld under section 32B
or 32C—
(a) must be paid by the Treasurer into the Consolidated Account
or a special deposit account established by the Treasurer for that purpose; and
(b) will be charged against the relevant contributor's
contribution account (to the extent possible) as if the amount had been paid to
the contributor; and
(c) will be credited with interest at a rate determined by the
Treasurer; and
(d) may be paid to the contributor (or the contributor's spouse
or legal representative)—
(i) in accordance with
section 32B or 32C; or
(ii) at the direction of the Board if the Board—
(A) has
not, within 2 years of withholding the amount, received advice that a surcharge
notice has been issued in respect of the contributor; or
(B) considers, at any time, there is other good reason for doing
so.
19—Amendment of section 40A—Commutation to pay deferred superannuation contributions surcharge
(1) Section 40A(2)—delete
"Commonwealth Act" and substitute:
Superannuation Contributions Tax Act
(2) Section 40A(3)(a)(i)—delete "Commonwealth Act" and substitute:
Superannuation Contributions Tax Act
(3) Section 40A(4)—delete
"Commonwealth Act" and substitute:
Superannuation Contributions Tax Act
(4) Section
40A(8)—delete subsection (8)
20—Amendment of section 45—Effect of workers compensation etc on pension
(1) Section 45(1)—after "during a
financial year" insert:
a contributor who is receiving, or would, but for this
subsection, be entitled to receive, a pension under another provision of this
Act is also receiving or entitled to receive
(2) Section 45(1)(a)
and (b)—delete paragraphs (a) and (b) and substitute:
(a) weekly payments of workers compensation; or
(b) in the case of a relevant contributor—income from
remunerative activities engaged in by the contributor,
(3) Section 45(1)(d)
and (e)—delete paragraphs (d) and (e) and substitute:
(d) if the contributor is a relevant contributor—
(i) the Board must
estimate the income (if any) that the contributor is likely to receive during
the financial year from remunerative activities engaged in by the contributor;
and
(ii) it must be assumed that the income estimated by the Board
will be paid at a uniform rate throughout the financial year;
(4) Section 45(1)(f)—after
"payments (if any) and" insert:
, if the contributor is a relevant contributor,
(5) Section 45(1)(g)—after
"the Board must" insert:
, if the contributor is a relevant contributor,
(6) Section 45(1a)—delete "subsection (1)(b)(i) and (ii)" and
substitute:
subsection (1)(a) and (b)
(7) Section
45(2)(ba)—delete paragraph (ba)
(8) Section 45(4)—after "receiving
them" insert:
unless—
(a) if the person is a contributor—the contributor has reached
the age of retirement; or
(b) if the person is the spouse of a deceased contributor—the
contributor would have reached the age of retirement if he or she were still
alive
(9) Section 45—after subsection (6) insert:
(7) In this section—
relevant contributor means a contributor—
(a) who has not reached the age of retirement; and
(b) whose entitlement to receive a pension under another
provision of this Act does not relate to a pension granted on the basis of his
or her age.
21—Amendment of section 54—Power to obtain information
(1) Section 54(1)—after "employing
authority," insert:
workers compensation authority,
(2) Section 54—after subsection (5) insert:
(6) For
the purposes of any other Act or law, a workers compensation authority will be
taken, when acting under this section, to be disclosing information in the
course of official duties.
(7) In this section—
workers compensation authority includes any person or authority with power to determine or manage claims for workers compensation.