Division 2 Grant of pensions and benefits

26   (Repealed)

26A   Benefit payable not to include fraction of a cent

Where STC is required to pay to a person as a benefit under this Act an amount that includes a fraction of a cent, the fraction shall be ignored and, where the fraction is one-half or more, the amount payable after ignoring the fraction shall be increased by one cent.

27   Amount of pension payable on retirement

(1)  A contributor who retires is entitled to be paid a pension of $5.50 per fortnight for each unit for which the contributor was contributing at the time of retirement.

(2)  Subsection (1) does not apply to a contributor in respect of whom special provision for the payment of a pension or other retirement benefit is made under another provision of this Act.

(3)  If STC has made a determination under section 61RA in respect of a pension payable under this section, the amount of the pension is reduced by the amount specified in STC’s determination.

28   Pension of woman retiring before 60

(1)  On the retirement at or after the age of fifty-five years of a woman who has contributed for a pension payable on reaching the said age, the full pension for which she has so contributed shall be payable.

(2)  (Repealed)

28A   Pension on retirement before reaching 60 years of age

(1)  This section applies to a contributor who retires in accordance with section 21 (1B) and who is not entitled to a pension under section 28AA.

(2)  A contributor to whom this section applies is entitled on retirement to a pension determined according to the number of units for which the contributor has, at the time of retirement, contributed for not less than 2 years and 6 months.

(3)  Subject to this section, the value of each unit of pension referred to in subsection (2) is as follows:

(a)  if the age of the contributor at the contributor’s last birthday before retirement was 55 years—$3.27 per fortnight,

(b)  if the age of the contributor at the contributor’s last birthday before retirement was 56 years—$3.55 per fortnight,

(c)  if the age of the contributor at the contributor’s last birthday before retirement was 57 years—$3.91 per fortnight,

(d)  if the age of the contributor at the contributor’s last birthday before retirement was 58 years—$4.35 per fortnight,

(e)  if the age of the contributor at the contributor’s last birthday before retirement was 59 years—$4.88 per fortnight.

(4)  In addition to the value of a unit of pension specified in subsection (3), a contributor is entitled to receive in respect of the unit an amount per fortnight calculated in accordance with the following formula:

where:

A represents the value that the unit would have had if the contributor had in fact retired on the contributor’s next birthday after that retirement, and

B represents the value of the unit at the contributor’s last birthday before retirement, and

C represents the number of days during the period beginning with the day after the contributor’s last birthday before retirement and ending with the day before payment of the pension is due to begin.

(5)  If a contributor to whom this section applies has contributed for one or more units of pension for less than 2 years and 6 months, the contributor is entitled to be paid on retirement a lump sum equal to the amount of contributions that the contributor has paid in respect of the unit or units.

(6)  A pension under this section becomes payable on and from the day following the contributor’s exit day, except as provided by subsection (7).

(7)  A pension under this section payable to a contributor who is retrenched becomes payable on and from the day after the day on which the contributor actually leaves the service of the contributor’s employer, whether at the contributor’s exit day any period of untaken leave was due to the contributor or not.

(8)  A contributor whose pension is determined in accordance with this section ceases to be liable to pay contributions to the Fund on the first day of the month or four-weekly period, as the case may be, in which the pension becomes payable in accordance with subsection (6) or (7).

(9)  If STC has made a determination under section 61RA in respect of a pension payable under this section, the amount of the pension is reduced by the amount specified in STC’s determination.

28AA   Pension on retirement before age 60—component pension

(1)  On the retirement of a contributor under section 21 (1B) on or after the commencement of Schedule 2 (6) to the Superannuation (Amendment) Act 1985, except as provided by subsection (2), the pension to which the contributor is entitled is a pension under this section.

(2)  A contributor is entitled to the pension under section 28A and not the pension under this section if the sum of:

(a)  the amount which would be payable to the contributor on the commutation of the whole of the pension payable to the contributor under section 28A, and

(b)  the amount of any lump sum which would be payable to the contributor under section 28A (5),

      is greater than the amount which would be payable to the contributor on the commutation of the whole of the pension payable to the contributor under this section.

(3)  The pension to which a contributor is entitled under this section is a pension of an amount per fortnight equivalent to the sum of the employee-contributed pension component, and the employer-financed pension component, in relation to the contributor.

(4)  For the purposes of subsection (3), the employee-contributed pension component, in relation to a contributor, shall be calculated in accordance with the following formula:

where:

P1 is the employee-contributed pension component.

EPU is the sum of the following:

(a)  ,

(b)  ,

(c)  UC.

UHn is the number of units of pension for which contributions were payable by the contributor on the contributor’s exit day in accordance with the tables of contributions fixed by or under this Act, but excluding:

(a)  any such units of pension which are excess units of pension referred to in section 10W (1) and in respect of which no person has any rights in the Fund, and

(b)  any such units of pension, being reserve units, for which contributions were being made under section 15A.

Cn is the amount of contributions due for the last contribution period for which contributions were payable by the contributor before the contributor’s exit day, in respect of that number of units of pension.

Rn is the amount which, if the contributor were required under Division 5 of Part 3 to commence to contribute for an additional unit of pension on the contributor’s exit day, would be the amount payable in accordance with the tables of contributions fixed under section 10AD for that unit for a contribution period.

TCB is the total amount paid in respect of instalments payable by the contributor on or before the contributor’s exit day for units of pension for which the contributor contributed in accordance with Division 6 of Part 3 (but deducting therefrom any part of that amount allocated under this Act to the purchase of fully paid up units).

RB is the amount specified in section 10AG (1) as the cost of a unit of pension in relation to the contributor.

UC is the number of units (if any) purchased by the contributor and credited to the contributor as fully paid up units under section 20C or otherwise.

TM is the number of years, if any, (including any fractional part of a year calculated on a daily basis) by which the day from which the pension under this section commences to be payable precedes the date on which the contributor attains the age of 60 years.

(5)  For the purposes of subsection (3), the employer-financed pension component, in relation to a contributor, shall be calculated in accordance with the following formula:

where:

P2 is the employer-financed pension component.

UE is the number of units of pension that, pursuant to section 12 (1), is appropriate to the salary payable to the contributor on the contributor’s exit day plus, in a case to which section 10W applies, the number of any excess units of pension referred to in section 10W (1) and in respect of which STC considers, in accordance with section 10W (5), that the retention of entitlement to benefits under this Act is warranted.

S is the number of years (including any fractional part of a year calculated on a daily basis) of continuous contributory service by the contributor with any one or more employers.

TM is the number of years, if any, (including any fractional part of a year calculated on a daily basis) by which the day from which the pension under this section commences to be payable precedes the date on which the contributor attains the age of 60 years.

(5A)  If STC has made a determination under section 61RA in respect of a pension payable under subsection (3), the amount of that pension is reduced by the amount specified in STC’s determination.

(6)  For the purposes of subsection (5), the period of continuous contributory service by a person on the person’s exit day is the period that commenced when the person last became a contributor and ended on that day (but excluding any part of that period during which the person is treated by section 48 as being on leave of absence without pay).

(7)  Except as provided by subsection (7A), a pension payable under this section shall commence and be payable as from the day following the contributor’s exit day.

(7A)  A pension payable under this section to a contributor who is retrenched shall be payable as from and including the day after the date on which the contributor actually leaves the service of the employer, whether or not at the contributor’s exit day any period of untaken leave was due to the contributor.

(8)  Contributions payable by and in respect of a contributor whose pension is payable under this section shall cease to be paid:

(a)  where the pension becomes payable before the commencement of Schedule 9 to the Superannuation (Amendment) Act 1983—on the first day of the month or four-weekly contribution period, as the case may be, in which the pension commences to be payable in accordance with subsection (7), or

(b)  where the pension becomes payable on or after the commencement of that Schedule—on the first day of the contribution period preceding that in which the pension commences to be payable in accordance with subsection (7) or (7A).

(9)  (Repealed)

28B   Increase of pension in case of certain retirements after reaching 62 years of age

(1)  For the purposes of this section, the period of contributory service of a contributor upon the contributor’s retirement is the next preceding period that commenced:

(a)  when the contributor last became a contributor, or

(b)  (Repealed)

(c)  if, since the contributor last became a contributor, the contributor had been on leave of absence pursuant to section 48—when the contributor was re-employed by an employer after the last such leave of absence,

      and ended upon the contributor’s retirement.

(2)  Where a contributor aged sixty-two years or more retired on or after 1 July 1972 and before the commencement of the Superannuation (Amendment) Act 1972, or retires at or after that commencement, the pension that, but for this section, would be payable to the contributor shall, if the contributor has completed not less than eleven years of contributory service, be increased by a percentage determined in accordance with subsection (3).

(3)  The percentage referred to in subsection (2) is:

(a)  where the contributor had completed forty years or more of contributory service at the time of the contributor’s retirement:

(i)  ten per centum if the contributor retired on or after reaching the age of sixty-two years and before reaching the age of sixty-three years,

(ii)  twenty per centum if the contributor retired on or after reaching the age of sixty-three years and before reaching the age of sixty-four years, and

(iii)  thirty per centum if the contributor retired on or after reaching the age of sixty-four years, or

(b)  where the contributor had completed eleven or more, but less than forty, years of contributory service at the time of the contributor’s retirement—the percentage that would, if the contributor had completed more than forty years of contributory service, be applicable under paragraph (a), multiplied by the fraction obtained by applying the formula:

where n represents the number of years of contributory service that the contributor had completed.

(4)  Notwithstanding subsection (2), the pension of a contributor shall not be increased under this section to an amount in excess of the amount of the upper limit of the salary group in which the contributor’s salary fell immediately before the contributor’s retirement, any salary increase referred to in section 23BA being deemed to have been paid to the contributor immediately before that retirement.

(5), (6)  (Repealed)

(7)  Notwithstanding the foregoing provisions of this section:

(a)  this section does not apply to a contributor who retires on or after 1 July 1979 and who has not attained the age of 62 years before that date, and

(b)  this section applies to a contributor who retires on or after 1 July 1979 and who has attained the age of 62 years before that date, but so applies subject to subsection (8).

(8)  In the case of a contributor referred to in subsection (7) (b), the percentage by which the contributor’s pension is to be increased shall be determined as though the contributor retired on 30 June 1979, but that percentage shall be applied to the whole of the pension that, but for this section, would be payable to the contributor upon the contributor’s actual retirement.

29   Breakdown pensions

(1)  Except as provided by subsections (2), (2A) and (3), if a contributor is retired on the ground of invalidity or physical or mental incapacity to perform the contributor’s duties, the contributor shall, subject to section 10AA (2), be entitled to the full pension for which the contributor was contributing as at the contributor’s exit day.

(2)  If a contributor:

(a)  being a person who became a contributor on or after 13 January 1978, or

(b)  being a person who, immediately before 13 January 1978, was:

(i)  a contributor accepted or treated as a contributor for limited benefits under this Act as then in force, or

(ii)  a contributor accepted or treated as a contributor in the provisional category under this Act as then in force,

      is retired on the ground of invalidity or physical or mental incapacity to perform the contributor’s duties and the number of years (disregarding any fraction of a year) comprising the period from the date when the contributor last became a contributor and the contributor’s exit day, after having subtracted from that period any period of retirement pursuant to section 22 in respect of which the contributor received a pension under this Act, is less than 10, the contributor shall be entitled to a pension, the amount of which shall be calculated in accordance with the formula:

where, in relation to the contributor:

P is the amount of the pension per fortnight,

A is the amount of pension per fortnight that would have been payable to the contributor under subsection (1) had the contributor been a person to whom that subsection applies,

B is the number of years (disregarding any fraction of a year) comprising the period from the date when the contributor last became a contributor to the contributor’s exit day, after having subtracted from that period any period of retirement pursuant to section 22 in respect of which the contributor received a pension under this Act, and

C is:

(a)  the number of years (disregarding any fraction of a year) comprising the period from the date when the contributor last became a contributor to the last day of the contribution period preceding that in which the contributor would attain the maturity age, or

(b)  10,

      whichever is the lesser.

(2AA)  If STC has made a determination under section 61RA in respect of a pension payable under subsection (2), the amount of the pension is reduced by the amount specified in STC’s determination.

(2A)  If:

(a)  a person becomes a contributor within the period of one year ending on and including the last day of the contribution period preceding that in which the person would attain the maturity age,

(b)  the person is retired on the ground of invalidity or physical or mental incapacity to perform the person’s duties, and

(c)  the person’s exit day precedes the last day of the contribution period referred to in paragraph (a),

      then:

(d)  subsection (2) does not apply to that person, and

(e)  the person shall be entitled to a pension equal to 80 per cent of the amount of pension that would have been payable to the contributor under subsection (1) had the person been a person to whom that subsection applies.

(2B)  Subsection (2) does not apply to a contributor whose exit day is on or after the last day of the contribution period preceding that in which the contributor attains or would attain the maturity age.

(3)  If, in respect of a contributor referred to in subsection (2) (b) (other than a contributor referred to in subsection (2) (b) (ii)), the amount of pension to which the contributor would have been entitled, had this Act not been amended by the Superannuation (Amendment) Act 1977, is greater than the amount to which the contributor would otherwise be entitled under subsection (2), the contributor shall, notwithstanding subsection (2), be entitled to a pension of the greater amount.

(4)  A contributor to whom this section applies shall be granted payment of pension only for such period at a time as STC determines and a fresh application shall, unless STC from time to time otherwise determines, be necessary before any further payment is made.

(4A)  The period determined by STC as referred to in subsection (4) for the payment of pension to a person who:

(a)  has not attained the maturity age—shall be such period (not exceeding 5 years) as STC thinks fit, having regard to the state of health of the person, and

(b)  has attained the maturity age—may be for the remainder of the person’s life.

(5)  Despite subsection (4A), STC may determine that the period for payment of a pension to a contributor to whom this section applies or a former contributor who is being paid a pension under this section, and who has attained the age of 55 years, is to be for the remainder of the person’s life.

(5A)  STC may not make a determination under subsection (5), except on the election of the contributor or former contributor concerned.

(6)  Contributions payable by or in respect of a contributor to whom this section applies cease to be payable on the first day of the contribution period during which the pension becomes payable.

(7)  Schedule 17 has effect.

(8)  A contributor who is a Magistrate and who ceases to hold office (whether before or after the commencement of this subsection) on the ground of invalidity or physical or mental incapacity to perform the Magistrate’s duties is entitled to a pension under this section as if the Magistrate had been retired by the Magistrate’s employer on that ground, if STC is satisfied as to the Magistrate’s invalidity or incapacity in accordance with section 22 (2).

29A   (Repealed)

30   Pensions to spouse or de facto partner on death of contributor

(1)  On the death of a male contributor, pension is, subject to section 46A, payable to his spouse or de facto partner, at the rate of two-thirds of the pension that would have been payable to the contributor had he, where he was aged not less than 60 years, retired or been retired immediately before his death or, where he died before reaching the age of 60 years, had he been retired immediately before his death.

(2)  On the death of a woman contributor, pension is, subject to section 46A, payable to her spouse or de facto partner, at the rate of two-thirds of the pension that would have been payable to the contributor had she, where she was aged not less than the maturity age, retired or been retired immediately before her death or, where she died before reaching the maturity age, had she been retired immediately before her death.

30A, 30AA   (Repealed)

31   Pension to spouse or de facto partner on death of pensioner

(1)  On the death of a male pensioner, pension is, subject to sections 46A and 47, payable to his spouse or de facto partner, at the rate of two-thirds of the pension payable to the pensioner at the time of his death.

(2)  On the death of a woman pensioner, pension is, subject to sections 46A and 47, payable to her spouse or de facto partner, at the rate of two-thirds of the pension payable to the pensioner at the time of her death.

(3)  (Repealed)

(4)  Notwithstanding the foregoing provisions of this section, but subject to section 47, where a pensioner referred to in subsection (1) or (2) had contributed for not more than 4 units of pension and had received a pension increase in terms of section 2 of the Superannuation (Amendment) Act 1970, the pension payable to the pensioner’s spouse or de facto partner shall not exceed $20 per fortnight, but nothing in this subsection affects the operation of Division 6.

(5)  A reference in subsection (1) or (2) to a pensioner does not include a person who is entitled to receive only a pension under this section or section 30.

31A   Minimum benefit payable in respect of pensioner who dies

(1)  If a pensioner dies without leaving a spouse or de facto partner to whom pension is payable under this Act, nor a child in respect of whom pension is payable under this Act, there is payable to the personal representatives of the pensioner an amount calculated by deducting from the minimum benefit payable in respect of the pensioner the total of all benefits paid to the pensioner under this Act.

(2)  If a pensioner dies leaving a surviving spouse or de facto partner, and the surviving spouse or de facto partner dies, and there is no child of the pensioner or spouse or de facto partner in respect of whom pension is payable under this Act, there is payable to the personal representatives of the pensioner an amount calculated by deducting from the minimum benefit payable in respect of the pensioner the total of:

(a)  all benefits paid to the pensioner under this Act, and

(b)  all benefits paid as a consequence of the death of the pensioner to the spouse or de facto partner or any other person under this Act.

(3)  If a pensioner dies leaving a surviving spouse or de facto partner to whom pension is payable under this Act, and no child of the pensioner or spouse or de facto partner in respect of whom pension is payable under this Act, and the surviving spouse or de facto partner elects to commute the whole of that pension under section 21C, there is payable to the spouse or de facto partner, on that election taking effect, whichever is the greater of the following amounts:

(a)  the amount that would be payable under section 21C (but for this section), or

(b)  the amount calculated by deducting from the minimum benefit payable in respect of the pensioner the total of:

(i)  all benefits paid to the pensioner under this Act, and

(ii)  all benefits paid as a consequence of the death of the pensioner to the spouse or de facto partner or any other person under this Act.

(4)  If subsection (1), (2) or (3) would apply in respect of a pensioner, but for the pensioner leaving a child or children in respect of whom pension is payable under this Act (or would, but for this section, be so payable), STC may, if it considers it to be in the best interests of the child or children, apply this section as if there were no such child or children, in which case pension or pensions are not payable under this Act in respect of the child or children.

(5)  If a pensioner has no personal representatives, an amount payable to the pensioner’s personal representatives is to be paid to such person or persons as STC may determine.

(6)  For the purposes of this section, if a pensioner dies and his or her spouse or de facto partner died at the same moment or in circumstances rendering it uncertain which of them survived the other, and the spouse or de facto partner died before a pension became payable to him or her under this Act because of the pensioner’s death, the pensioner is taken not to have a surviving spouse or de facto partner.

(7)  For the purposes of this section, the minimum benefit payable in respect of a pensioner is the amount to which the pensioner would have been entitled under section 38A if the pensioner had, on the day determined by STC as being the last day on which he or she was an employee, resigned from the service of his or her employer and elected to take the benefit of that section.

(8)  In this section:

benefits includes instalments of pension.

pensioner means a person to whom a pension is payable under this Act because the person was a former contributor, and includes a person who became entitled to a pension under this Act because the person was a former contributor and who commuted that pension in accordance with this Act.

31B, 32   (Repealed)

32A   Death of employee before retirement

(1)  Where an employee dies before retirement without leaving a spouse or de facto partner in respect of whom pension is payable under this Act, the employee shall, unless the employee leaves a child or children in respect of whom pension is payable under this Act or would, but for this section, be so payable, be deemed to have resigned, immediately before dying, from the service of the employee’s employer and to have elected under section 38B to take the benefit of section 38A.

(1A)  The amount payable under section 38A by reason of the death of an employee in the circumstances referred to in subsection (1) shall be paid by STC to the employee’s personal representatives or, where the employee has no personal representatives, to such persons as STC may determine.

(2)  Where an employee referred to in subsection (1) leaves a child or children in respect of whom pension is payable under this Act or would, but for this section, be so payable, STC may:

(a)  make a payment referred to in subsection (1A) as if the employee had not left such a child or children, in which case a pension or pensions shall not be payable under this Act in respect of the child or children, or

(b)  pay a pension or pensions in respect of the child or children as if this section had not been enacted and pay to the personal representatives of the employee or, if there are no personal representatives, to such persons as STC may determine, an amount equal to the total of the contributions paid by the employee to the Fund,

      whichever STC considers to be in the best interests of the child or children.

(3)  If an employee dies before retirement leaving a surviving spouse or de facto partner in respect of whom pension is payable under this Act, and no child in respect of whom pension is payable under this Act, and the surviving spouse or de facto partner elects to commute the whole of that pension under section 21C, there is payable to the spouse or de facto partner, on that election taking effect, whichever is the greater of the following amounts:

(a)  the amount that would be payable under section 21C (but for this section), or

(b)  the amount that would have been payable if the employee had resigned, immediately before dying, from the service of the employee’s employer and elected under section 38B to take the benefit of section 38A, less the total of any benefits paid as a consequence of the death of the employee to the spouse or de facto partner or any other person under this Act (including any instalments of pension).

(4)  If subsection (3) would apply in respect of an employee, but for the employee leaving a child or children in respect of whom pension is payable under this Act (or would, but for this section, be so payable), STC may, if it considers it to be in the best interests of the child or children, apply subsection (3) as if there were no such child or children, in which case pension or pensions are not payable under this Act in respect of the child or children.

32AA   Extension of sec 32A to certain cases where spouses or de facto partners die contemporaneously

(1)  Where:

(a)  a male employee died before his retirement, whether before, on or after the commencement of this subsection,

(b)  his spouse or de facto partner died at the same moment or after he died or in circumstances rendering it uncertain which of them survived the other, and

(c)  his spouse or de facto partner died before a pension became payable to the spouse or de facto partner under this Act consequent on his death,

      he shall, for the purposes of section 32A as in force at any time, be deemed not to have had a spouse or de facto partner at the time of his death.

(2)  Where:

(a)  a woman employee died before her retirement, on or after the commencement of this subsection,

(b)  her spouse or de facto partner died at the same moment or after she died or in circumstances rendering it uncertain which of them survived the other, and

(c)  her spouse or de facto partner died before a pension became payable to the spouse or de facto partner under this Act consequent on her death,

      she shall, for the purposes of section 32A as in force at any time, be deemed not to have had a spouse or de facto partner at the time of her death.

32B   (Repealed)

32C   Refund or minimum benefit in certain cases where spouse or de facto partner dies

(1)  Where:

(a)  an employee dies before retirement leaving a spouse or de facto partner,

(b)  the spouse or de facto partner dies, and

(c)  there are children of the employee or of the spouse or de facto partner in respect of whom pension becomes payable in accordance with section 33,

      there shall be paid to the employee’s personal representatives or, where the employee has no personal representatives, to such persons as STC may determine a sum equal to the contributions paid by the employee to the Fund less:

(d)  the total amount of pension paid to the spouse or de facto partner under section 30 otherwise than in respect of a child, and

(e)  any lump sum paid to the spouse or de facto partner under section 21C in respect of such a pension.

(2)  If an employee dies before retirement leaving a surviving spouse or de facto partner, and the surviving spouse or de facto partner dies, and there is no child of the employee or of the spouse or de facto partner in respect of whom pension is payable under this Act, there is payable to the employee’s personal representative or, where the employee has no personal representatives, to such person as STC may determine, an amount calculated by deducting from the minimum benefit payable in respect of the employee the total of all benefits paid as a consequence of the death of the employee to the spouse or de facto partner or any other person under this Act (including any instalments of pension).

(3)  In a case to which subsection (1) applies, STC may, if it considers it to be in the best interests of the child or children, make a payment in accordance with subsection (2) as if there were no child or children of the deceased, in which case no pension is payable under this Act in respect of the child or children and no amount is payable under subsection (1).

(4)  For the purposes of this section, the minimum benefit payable in respect of an employee is the amount that would have been payable if the employee had resigned, immediately before dying, from the service of the employee’s employer and elected under section 38B to take the benefit of section 38A.

32D   Children’s pensions at sec 61M rates

(1)  A pension of the appropriate amount per fortnight under section 61M is payable on the death of a contributor or pensioner in respect of a child if the conditions set out in subsections (1A) and (1B) are satisfied.

(1A)  The child must be a child of the contributor or pensioner or a child of a surviving spouse or de facto partner of the contributor or pensioner who is not eligible to receive a pension under section 33.

(1B)  If the child is not a child of the contributor or pensioner, the child:

(a)  must have been born or adopted before the death of the contributor or pensioner, and

(b)  must have been ordinarily part of the contributor’s or pensioner’s household at the time of the death of the contributor or pensioner.

(2)  A pension under this section ceases to be payable in respect of a child if the surviving parent dies.

(3)  A pension under this section continues to be payable notwithstanding that the surviving parent marries or remarries.

(4)  Nothing in this section affects the operation of section 47.

(5)  In this section:

pensioner means a person who received a pension because the person was a former contributor.

33   Children’s pensions at sec 61N rates

(1)  A pension of the appropriate amount per fortnight under section 61N is payable on the death of a contributor or pensioner in respect of a child if the conditions set out in subsections (1A)–(1C) are satisfied.

(1A)  The child must be a child of the contributor or pensioner or a child of a spouse or de facto partner of the contributor or pensioner.

(1B)  The other parent of the child or the spouse or de facto partner of the contributor or pensioner who was a parent of the child:

(a)  must have died before the contributor’s or pensioner’s death, or

(b)  must have been divorced from the contributor or pensioner, or

(c)  must have been in a registered relationship or interstate registered relationship, within the meaning of the Relationships Register Act 2010, or a de facto relationship, with the contributor or pensioner that ended before the contributor’s or pensioner’s death.

Note. “De facto relationship” is defined in section 21C of the Interpretation Act 1987.

(1C)  If the child is not a child of the contributor or pensioner:

(a)  in a case where the spouse or de facto partner who is the parent of the child is divorced from or the former de facto partner of the pensioner or contributor, the child must have been born or adopted before the divorce or end of the relationship, and

(b)  in any case, the child must have been ordinarily part of the contributor’s or pensioner’s household at the time of the death of the spouse or de facto partner, divorce or end of the relationship.

(1D)  In this section:

pensioner means a person who received a pension because the person was a former contributor.

spouse or de facto partner includes a person previously married to the contributor or pensioner or a former de facto partner.

(2)  Where a pension ceases to be payable under section 32D in respect of a child because the surviving parent dies, a pension of the appropriate amount per fortnight under section 61N is payable in respect of the child.

(3)  Nothing in this section affects the operation of section 47.

33AA   STC may determine to pay children’s pensions in other cases

STC may, if it considers it appropriate, determine that a pension is payable under a provision of this Act to a child even though the child is not eligible under that provision to receive a pension.

33A   Variation of pension in certain circumstances

(1)  In this section, a reference to pension under this Act is a reference to pension payable under this Act, including any increase to that pension payable under this or any other Act.

(2)  Where a person entitled to receive a pension under this Act or a child or student in respect of whom such a pension is payable would, in the opinion of STC, thereby be prejudicially affected in respect of any benefits otherwise receivable by that person, or that child or student, the amount of pension payable shall be such lesser amount than that provided for under this or any other Act as STC from time to time determines.

(3), (4)  (Repealed)

(5)  Where STC, under subsection (2), determines an amount of pension under this Act, the amount of the pension as determined by STC shall be payable in respect of such periods or at such times by way of lump sum or otherwise as STC from time to time determines.

(6)  A part of a pension that is not paid because of the operation of subsection (2) shall, in calculating a pension payable under section 30 or 31, be taken into account as if it had been payable.

33B   STC to apportion benefits and other payments between the contributors’ reserve and the appropriate employer reserve

(1)  Whenever:

(a)  a benefit under this Act becomes payable to a contributor (other than a benefit under Division 3A of Part 4), or

(b)  a contributor elects to take the benefit of that Division, or

(c)  if a contributor has died without having received a benefit under this Act—the benefit becomes payable to another person in consequence of that death,

      STC must ascertain the portion of the benefit that is payable from the contributors’ reserve and the portion that is payable from the appropriate employer reserve.

(2)  For the purposes of subsection (1):

(a)  the portion of the benefit payable to or in respect of a contributor from the contributors’ reserve is an amount equal to the lesser of the amount calculated according to subsection (4) and the relevant amount, and

(b)  the portion of the benefit payable to or in respect of the contributor from the appropriate employer reserve is equal to the relevant amount, less the amount ascertained under paragraph (a).

(2A)  When an amount under the family law superannuation legislation or Part 4A becomes payable to or in respect of a non-contributor spouse, STC must, in accordance with the regulations, determine the portion of the payment that is payable from the contributors’ reserve and the portion that is payable from the appropriate employer reserve.

(3)  For the purposes of subsection (2), the relevant amount is:

(a)  if a lump sum benefit (other than a commutation of pension) is to be paid to or in respect of the contributor—the amount of the benefit payable to or in respect of the contributor, or

(b)  if a pension or a commutation of a pension is to be paid to or in respect of the contributor—the amount calculated by STC as the capitalised value of the benefits payable to or in respect of the contributor.

(4)  For the purposes of subsection (2), the amount to be calculated is:

(a)  the amount that would have been payable if the contributor had elected to take the benefit of section 38, and

(b)  interest:

(i)  compounded on 30 June in each year in respect of the period beginning with the day on which the contributor first became liable to make contributions under this Act and ending with the day on which the contributor ceased to be employed by an employer, and

(ii)  calculated at the prescribed rate on the amount ascertained by applying the formula set out in subsection (5).

(5)  For the purposes of subsection (4) (b), the formula is as follows:

where:

A represents the total amount of contributions (excluding contributions refundable under section 15A (6AA) or (6AB)) that the contributor had paid to the Fund from the beginning of the contributor’s contributory service to the beginning of the period in respect of which the calculation is to be made, together with interest (if any) at the prescribed rate calculated at 30 June immediately preceding that period.

B represents the total amount of those contributions from the beginning of the contributor’s contributory service to the end of the period in respect of which the calculation is to be made, together with interest (if any) at the prescribed rate calculated as at 30 June immediately preceding that period.

(6)  For the purposes of this section, prescribed rate means:

(a)  in respect of any relevant period ending before 1 July 1972—3.5 per cent per year, and

(b)  in respect of any relevant period beginning on or after 1 July 1972—the rate as fixed by STC from time to time, having regard to the earnings of the Fund and such other matters as STC considers relevant.

34–36   (Repealed)

37   Retrenchment benefits payable to an employee who is retrenched after completing 10 years’ service

(1AA)  This section does not apply to an employee who is retrenched before having completed 10 years’ service with any one or more employers.

(1)  In the case of the retrenchment of an employee who was a contributor at 30 June 1963, the contributor is, subject to section 38B, entitled to either:

(a)  a lump sum payment equal to three and one-half times the sum of:

(i)  the contributions that the contributor paid to the Fund (but without interest) before 13 January 1952, and

(ii)  ten-elevenths of the contributions that the contributor has paid to the Fund (but without interest) on or after 13 January 1952,

      in determination of all rights given by this Act (subsection (4) excepted), or

(b)  such pension as is determined by STC to be the equivalent of the contributor’s rights in the Fund.

(2)  In the case of the retrenchment of an employee who became or becomes a contributor on or after 1 July 1963, the contributor is, subject to section 38B, entitled to either:

(a)  a lump sum payment equal to two and one-half times the contributions that the contributor has paid to the Fund (but without interest), in determination of all rights given by this Act (subsection (4) excepted), or

(b)  such pension as is determined by STC to be the equivalent of the contributor’s rights in the Fund.

(3)  (Repealed)

(4)  An employee entitled to:

(a)  a lump sum payment under subsection (1) (a) is also entitled to a lump sum payment equal to two and one-half times an amount equal to ten-elevenths of the contributions, or

(b)  a lump sum payment under subsection (2) (a) is also entitled to a lump sum payment equal to one and one-half times an amount equal to the contributions,

      that would have been payable by the employee under this Act in respect of each of the reduced value units allocated to the employee, had each such reduced value unit been held by the employee as a contributory unit as from the earliest of the times that the employee is deemed by section 47C (6) to have held the reduced value unit.

(4A)  If STC has made a determination under section 61RA in respect of a benefit payable under this section, the amount of the benefit is reduced by the amount specified in STC’s determination.

(5)  Where an employee who has been retrenched and is in receipt of a pension thereafter enters the service of an employer:

(a)  the pension shall not cease to be payable,

(b)  the employee shall contribute as provided in Part 3, and

(c)  the employee shall not be entitled to count the employee’s service prior to retrenchment as service for the purpose of any other pension or benefit under this Act.

(6)  Where an employee who has been retrenched and has received a lump sum under this section thereafter enters the service of an employer, the employee is not entitled to claim any further benefit in respect of the employee’s previous service unless the employee complies with section 38C.

(7)–(10)  (Repealed)

(11)  A person who, before becoming a contributor, was:

(a)  employed on terms requiring the contributor to give the whole of his or her time to that employment, and

(b)  was paid at an hourly, daily, weekly or fortnightly rate, or at piecework rates,

      is entitled to have that employment treated as service as an employee for the purposes of this section.

(12)  Whenever:

(a)  a period of employment that a contributor has had with an employing authority, and

(b)  a later period of service that the contributor has had as an employee with an employer,

      are continuous STC may, if satisfied that, having regard to the nature of the work performed by the contributor during that period of employment, it is proper to do so, treat, for the purposes of this section, that period of employment as a period of service as an employee with that employer.

(13)  A reference in subsection (12) to a period of service as an employee with an employer includes a reference to a period treated under subsection (11) or (12) as a period of service as an employee.

37A   Retrenchment benefits payable to contributors having not less than 3 years’ contributory service

(1)  This section applies to a contributor who is retrenched from the service of an employer on or after 13 February 1987 and who, at the time of retrenchment, has completed 3 years’ continuous contributory service.

(1A)  (Repealed)

(2)  For the purpose of subsection (1), a contributor who is retrenched shall be taken to have completed 3 years’ continuous contributory service when:

(a)  the contributor has, for a continuous period of 3 years or more immediately preceding the retrenchment, been employed in the service of an employer or employers, and

(b)  during the continuous period of 3 years immediately preceding the retrenchment, the contributor has been a contributor under this Act or has been a contributor under this Act and a contributor to the Public Authorities Superannuation Fund.

(3)  For the purposes of subsection (1), the period of continuous contributory service by a contributor at the contributor’s exit day is:

(a)  subject to paragraph (b)—the period that commenced when the contributor last became a contributor to the Fund and ended on that exit day, or

(b)  if immediately before becoming a contributor to the Fund the contributor was a contributor to the Public Authorities Superannuation Fund—the period that commenced when the contributor last became a contributor to the Public Authorities Superannuation Fund and ended on that exit day,

      but excluding in either case any part of that period during which the contributor is treated by section 48 as being on leave of absence without pay.

(4)  A contributor to whom this section applies is, subject to section 38B, entitled to either:

(a)  a lump sum benefit calculated in accordance with the formula set out in subsection (5), or

(b)  such pension as is determined by STC to be the equivalent of the contributor’s rights in the Fund.

(5)  The formula referred to in subsection (4) (a) is as follows:

where:

B represents the benefit to be determined,

C is equal to:

(a)  , or

(b)  the contributions paid by the contributor,

      whichever is the greater, and

E is equal to .

(6)  For the purposes of subsection (5):

A represents the contributor’s age in years and any fractional part of a year (that part to be calculated on a daily basis) on the contributor’s exit day,

F is equal to:

(a)  if “M” is 60 or more—285, and

(b)  if “M” is less than 60— ,

M represents the greater of the following:

(a)  the contributor’s maturity age,

(b)  the contributor’s age in years and any fractional part of a year (that part to be calculated on a daily basis) at the date on which the contributor last became a member of the Fund + 10,

P₁ is the employee-contributed pension component calculated in accordance with subsection (7) (a), and

P₂ is the employer-financed pension component calculated in accordance with subsection (7) (b).

(7)  In subsection (6):

(a)  
where EPU is the sum of:

(i)  ,

(ii)  , and

(iii)  UC, and

(b)  

where:

UE is the number of units of pension that, pursuant to section 12 (1), is appropriate to the salary payable to the contributor on the contributor’s exit day plus, in a case to which section 10W applies, the number of any excess units of pension referred to in section 10W (1) and in respect of which STC considers, in accordance with section 10W (5), that the retention of entitlement to benefits under this Act is warranted.

S is the number of years (including any fractional part of a year calculated on a daily basis) of continuous contributory service by the contributor with any one or more employers.

T is the number of years, if any, (including any fractional part of a year calculated on a daily basis) by which the contributor’s exit day precedes:

(a)  the date on which the contributor attains the maturity age, or

(b)  where any employment which, on the contributor’s exit day, the contributor is entitled to count as service for the purposes of section 21 is, in total, for less than a period of 10 years—the expiration of the balance of that period of 10 years,

      whichever is the later.

(8)  For the purposes of subsection (7) (a):

UHn is the number of units of pension for which contributions were payable by the contributor on the contributor’s exit day in accordance with the tables of contributions fixed by or under this Act, but excluding:

(a)  any such units of pension which are excess units of pension referred to in section 10W (1) and in respect of which no person has any rights in the Fund, and

(b)  any such units of pension, being reserve units, for which contributions were being made under section 15A,

Cn is the amount of contributions due for the last contribution period for which contributions were payable by the contributor before the contributor’s exit day, in respect of that number of units of pension,

Rn is the relevant amount under subsection (9) in relation to the contributor for an additional unit of pension on the contributor’s exit day,

TCB is the total amount paid in respect of instalments payable by the contributor on or before the contributor’s exit day for units of pension for which the contributor contributed in accordance with Division 6 of Part 3 (but deducting from that amount any part allocated under this Act to the purchase of fully paid up units),

RB is the amount specified in section 10AG (1) as the cost of a unit of pension in relation to the contributor, and

UC is the number of units (if any) purchased by the contributor and credited to the contributor as fully paid up units under section 20C or otherwise.

(9)  For the purposes of subsection (8), the relevant amount in relation to a contributor for an additional unit of pension on the contributor’s exit day is:

(a)  where the contributor has attained the prescribed age on or before that day, the amount which, if the contributor were required under Division 5 of Part 3 to commence to contribute for an additional unit of pension on that day, would be the amount payable in accordance with the tables of contributions fixed under section 10AD for that unit for a contribution period, or

(b)  where the contributor has not attained the prescribed age on or before that day, the amount equal to the sum of:

(i)  the amount payable by the contributor for any additional unit of pension for which the contributor had been required to commence contributing on and from the contributor’s last annual adjustment day for a contribution period or, as the case may be, the amount that would have been so payable if the contributor had been so required, and

(ii)  for each day of the period commencing on the day following that annual adjustment day and ending on the contributor’s exit day, the amount equal to 1/364th part of the difference between the amount referred to in subparagraph (i) and the amount that that amount would have been if, on the contributor’s last annual review day before the contributor’s exit day, the contributor had been 1 year older than the age actually attained.

(10)  For the purposes of subsection (7) (b), the period of continuous contributory service by a contributor on the contributor’s exit day is the period that commenced when the contributor last became a contributor and ended on that day, but excluding any part of that period during which the contributor is treated by section 48 as being on leave of absence without pay.

(10A)  If STC has made a determination under section 61RA in respect of a benefit payable under this section, the amount of the benefit is reduced by the amount specified in STC’s determination.

(11)  If a former employee who:

(a)  has been retrenched, and

(b)  has received a retrenchment benefit under this section,

      subsequently enters the service of the same or another employer, the former employee is not entitled to claim any further benefit in respect of previous service with an employer unless the former employee has complied with section 38C.

(12), (13)  (Repealed)

37B   Deferral of payment of benefits on retrenchment

(1)  This section applies to a contributor who is retrenched from the service of an employer and who, at the time of retrenchment, is not less than 50 years of age.

(2)  A contributor to whom this section applies is entitled, subject to section 38B and only with the concurrence of his or her employer, to elect to retire on pension at the early retirement date instead of taking any pension, benefit or other amount that would be payable to the contributor under this Part on the retrenchment of the contributor.

(3)  If a contributor makes such an election, the contributor is entitled, on the early retirement date, to a pension under section 28, 28A or 28AA (whichever is applicable), as if the contributor had continued in the service of the employer and had elected to retire, and retired, on the early retirement date. Section 21C applies accordingly.

(4)  The entitlement under this section arises only if the contributor agrees to pay to the Fund, and does pay to the Fund, within the time required by STC, an amount determined by STC, on the basis of actuarial advice, as the present value of the total of all further amounts that the contributor would have been required to contribute to the Fund had the contributor not been retrenched and had continued in service with the employer until the early retirement date.

(5)  If a contributor elects to take the benefit of this section, Division 7 of Part 3 applies, and continues to apply, in respect of the contributor’s employer, as if the contributor were still employed by the employer and had continued in the service of the employer until the early retirement date. Accordingly, the employer must contribute to the Fund as required by those provisions.

(6)  For the purposes of Division 7 of Part 3, the contributions to be made by the employer are to be determined by STC on the basis of the contributions that would have been payable by the contributor had he or she continued in the service of the employer at the same salary and on the same basis as immediately before his or her retrenchment.

(7)  If a contributor who has been retrenched elects to take the benefit of this section and afterwards enters the service of the same or a different employer, the contributor is not entitled to claim any further benefit in respect of the contributor’s previous service, except in accordance with section 38C.

(8)  If a contributor who elects to take the benefit of this section:

(a)  becomes incapacitated before the early retirement date, or

(b)  dies before the early retirement date,

      STC may treat the contributor (whether or not the election has already taken effect) as having elected to take the benefit of Division 3A immediately before he or she became incapacitated or died, and apply those provisions accordingly. If the contributor has paid a lump sum to the Fund in accordance with this section, STC is to refund to the contributor, or the contributor’s personal representatives, an amount determined by STC as being the value of excess contributions paid by the contributor (that is, contributions paid in respect of a period commencing after the contributor’s incapacity or death).

(9)  In this section:

early retirement date, in relation to a contributor to whom this section applies, means the date on which the contributor will reach the age of 55 years.

38   Refund of contributions

(1)  If a contributor:

(a)  is retrenched from the service of an employer, or

(b)  resigns or is dismissed or discharged from the service of an employer,

      the contributor is, subject to section 38B, entitled to be paid a lump sum (without interest) equal to the contributions (other than contributions refundable under section 15A (6AB)) paid by the contributor under this Act, irrespective of the cause of the retrenchment, resignation, dismissal or discharge.

(2)  Whenever a lump sum is paid under subsection (1), there shall, subject to subsection (3), be deducted from that sum any amount received by the contributor as a pension before the contributor’s retrenchment, resignation, dismissal or discharge.

(3)  A deduction under subsection (2) must not reduce the amount paid to a contributor under this section to an amount below the contributions paid by the contributor since the contributor last received any amount as pension.

(4)  If a former employee who:

(a)  has been retrenched, dismissed or discharged, or has resigned, and

(b)  has received a benefit under this section or section 38A,

      subsequently enters the service of the same or another employer, the former employee is not entitled to claim any further benefit in respect of previous service unless the former employee has complied with section 38C.

38A   Withdrawal benefit

(1)  In this section:

contributory service, in relation to a contributor who is retrenched, resigns or is dismissed or discharged from the service of an employer, is the next preceding period that:

(a)  began:

(i)  when the contributor last became a contributor, or

(ii)  if, since last becoming a contributor, the contributor had been held to be on leave of absence without pay as provided by section 48—when an employer re-employed the contributor after that leave of absence, and

(b)  ended when the contributor’s employment with the employer ceased.

prescribed rate means:

(a)  in respect of any relevant period ending before 1 July 1972—3.5 per cent per year, and

(b)  in respect of any relevant period beginning on or after 1 July 1972—the rate as fixed by STC from time to time, having regard to the earnings of the Fund and such other matters as STC considers relevant.

(c)  (Repealed)

(2)  If a contributor who has not completed 5 years’ contributory service is retrenched, resigns or is dismissed or discharged from the service of an employer, the contributor is, subject to section 38B, entitled to receive from the Fund the amount that would have been payable if the contributor had elected to take the benefit of section 38.

(3)  If a contributor who has completed 5 years’ but less than 10 years’ contributory service is retrenched, resigns or is dismissed or discharged from the service of an employer, the contributor is, subject to section 38B, entitled to receive from the Fund an amount equal to the sum of:

(a)  the amount that would have been payable if the contributor had elected to take the benefit of section 38, and

(b)  interest:

(i)  compounded on 30 June each year in respect of the period beginning with the day on which the contributor first became liable to make contributions under this Act and ending with the day on which the contributor ceased to be employed by that employer, and

(ii)  calculated at the prescribed rate on the amount ascertained by applying the formula set out in subsection (5).

(4)  If a contributor who has 10 years’ contributory service or more is retrenched, resigns or is dismissed or discharged from the service of an employer, the contributor is, subject to section 38B, entitled to receive from the Fund an amount equal to the sum of:

(a)  the amount that would have been payable if the contributor had elected to take the benefit of section 38, and

(b)  interest:

(i)  compounded on 30 June each year in respect of the period beginning with the day on which the contributor first became liable to make contributions under this Act and ending with the day on which the contributor ceased to be employed by that employer, and

(ii)  calculated at the prescribed rate on the amount ascertained by applying the formula set out in subsection (5), and

(c)  a further amount calculated in accordance with the following formula:

where:

T represents the sum of the amounts referred to in paragraphs (a) and (b), and

P represents the period of the contributor’s contributory service, expressed in years with any fractional part of a year being calculated on a daily basis.

(5)  For the purposes of subsections (3) (b) and (4) (b), the formula is as follows:

where:

A represents the total amount of contributions (excluding contributions refundable under section 15A (6AB)) that the contributor had paid to the Fund from the beginning of the contributor’s contributory service to the beginning of the period in respect of which the calculation is to be made, together with interest (if any) at the prescribed rate calculated at 30 June immediately preceding that period, and

B represents the total amount of those contributions from the beginning of the contributor’s contributory service to the end of the period in respect of which the calculation is to be made, together with interest (if any) at the prescribed rate calculated at 30 June immediately preceding that period.

(5A)  Despite subsections (2), (3) and (4), the maximum amount that a contributor is entitled to receive from the Fund under this section is:

(a)  in the case of a contributor who has not attained the age of 55 years—the amount calculated by STC as the value of the lump sum that would have been payable to the contributor had he or she retired at 55 years of age and elected under section 21C to commute the whole of the pension to which the person was entitled on retirement at that age, or

(b)  in the case of a contributor who has attained the age of 55 years—the amount calculated by STC as the value of the lump sum that would have been payable to the contributor had he or she retired at his or her current age and elected under section 21C to commute the whole of the pension to which the person was entitled on retirement.

(5B)  If STC calculates that the maximum amount that a contributor is entitled to receive from the Fund under subsection (5A) is less than the amount the contributor would have been entitled to receive under this section had the amendments made to this section by the Superannuation Legislation Amendment Act 1998 not been made, then the contributor is entitled to receive the greater amount (despite those amendments).

(6)  If STC has made a determination under section 61RA in respect of a benefit payable under this section, the amount of the benefit is reduced by the amount specified in STC’s determination.

38B   Contributor who is retrenched, resigns or is dismissed or discharged to be entitled to the greatest available benefit

(1)  A contributor who is retrenched from the service of an employer and who, at the date when the retrenchment takes effect, is not entitled to elect to retire on a pension under section 27, 28, 28A or 28AA may, at any time before the end of 3 months after that date, elect between taking:

(a)  a lump sum benefit payable under a provision of this Part to any such contributor who is retrenched, or

(b)  if such a provision also confers an entitlement to a pension—a pension, or

(c)  subject to subsection (7)—the benefit of Division 3A, or

(d)  if section 37B applies to the contributor—the benefit of that section.

(2)  A contributor who resigns or is dismissed or discharged from the service of an employer may, at any time before the end of 3 months after the date when the resignation, dismissal or discharge takes effect, elect between taking:

(a)  a lump sum benefit payable under a provision of this Part to a contributor who has resigned or is dismissed or discharged, or

(b)  subject to subsection (7)—the benefit of Division 3A.

(3)  If a contributor is retrenched, resigns or is dismissed or discharged from the service of an employer, the employer must take all practicable steps to obtain from the contributor an election under subsection (1) or (2) and, after obtaining such an election, must forward it immediately to STC.

(4)  If a contributor who is entitled to make an election under subsection (1) or (2) to take a particular kind of benefit does not make such an election before the end of the prescribed period, the contributor shall be taken to have elected to take the kind of benefit that STC decides to be the most appropriate in the circumstances of the case.

(5)  If a contributor elects under this section to take a particular kind of benefit under subsection (1) and would, but for subsection (6), be entitled to a benefit of that kind under 2 or more provisions of this Part, STC must calculate which of the benefits under those provisions would be the greater or greatest.

(6)  A contributor referred to in subsection (5) is entitled to receive only the greater or greatest of the benefits calculated under that subsection.

(7)  A contributor who is retrenched, resigns or is dismissed or discharged from the service of an employer is not entitled to elect under subsection (1) or (2) to take the benefit of Division 3A unless the contributor has completed 3 years’ continuous contributory service.

(8)  For the purposes of subsection (7), a contributor to whom that subsection applies shall be taken to have completed 3 years’ contributory service when:

(a)  a contributor has, for a continuous period of 3 years or more immediately preceding the retrenchment, been employed in the service of one or more employers, and

(b)  during the period of 3 years immediately preceding the retrenchment, the contributor has been a contributor under this Act or has been a contributor under this Act and a contributor to the Public Authorities Superannuation Fund.

(9)  For the purposes of subsection (7), the period of continuous contributory service by a contributor at the contributor’s exit day is:

(a)  subject to paragraph (b)—the period that commenced when the contributor last became a contributor to the Fund and ended on that exit day, or

(b)  if immediately before becoming a contributor to the Fund the contributor was a contributor to the Public Authorities Superannuation Fund—the period that commenced when the contributor last became a contributor to the Public Authorities Superannuation Fund and ended on that exit day,

      but excluding in either case any part of that period during which the contributor is treated by section 48 as being on leave of absence without pay.

38C   Break in service may be cured on certain conditions

(1)  In this section, a reference to the prescribed rate is a reference to the rate of interest for the time being fixed by STC under section 86A for the purposes of this section.

(2)  Where a person who ceases to be employed by an employer (otherwise than by retirement or retrenchment on pension under this Act) enters the service of the same or a different employer within the next succeeding period of three months and, within that same period of three months, would (but for section 1A) be required to contribute to the Fund, the person may, subject to subsection (8), elect to resume payment of the person’s contributions as if the person had not ceased to be employed if the person elects within three months after the person would (but for section 1A) be required to contribute to the Fund to comply, and upon the election taking effect does comply, with this section.

(3)  A person referred to in subsection (2) complies with this section if:

(a)  the person pays to the Fund any lump sum received by the person, or authorises the retention in the Fund of any lump sum payable to the person, under section 37, 37A, 38 or 38A in consequence of the cessation of the person’s employment together with, where the person has received any such amount, interest thereon at the prescribed rate from the date the amount was paid to the person to the date of receipt in the office of STC of the amount payable pursuant to this paragraph,

(b)  the person pays to the Fund the amount referred to in subsection (4), and

(c)  the person resumes payment to the Fund of the contributions that would, had the person continued in the employment of the person’s previous employer, have been payable by the person on and from the beginning of the four-weekly contribution period in which the person ceased to be employed.

(4)  The amount required to be paid under paragraph (b) of subsection (3) by a person who makes an election under this section is an amount equal to the sum of:

(a)  all the contributions that would have been payable:

(i)  by the person from the day following the day to which the person’s contributions were paid before cessation of the person’s former employment, and

(ii)  by the person’s employer from the beginning of the four-weekly contribution period in which the person ceased to be employed,

      had the person continued in the employment of the person’s former employer, at the same salary as that which the person was receiving immediately before cessation of the contributions the person was required to make by reason of the person’s former employment, until the beginning of the first contribution period in which the person’s employment resumes, and

(b)  interest at the prescribed rate on the amount of each contribution referred to in paragraph (a) from the termination of the four-weekly contribution period in respect of which it is required to be paid to the date of receipt of the contribution in the office of STC.

(5)  STC may, in special circumstances and in a particular case:

(a)  waive payment of interest under this section or any part thereof, or

(b)  permit payment over an extended period of any amount required to be paid pursuant to paragraph (a) or (b) of subsection (3).

(6)  Where a person who makes an election under this section was, immediately before cessation of the person’s employment, contributing for reserve units of pension under section 15A, the person may, when making an election under this section, make an election under subsection (6) of that section and, where the person so elects under that section, contributions in respect of the reserve units to which the election under that section relates shall not be taken into account when calculating any amount payable by that person under this section.

(7)  Part 3 applies to and in respect of a person who makes an election under this section and does not comply with this section, and so applies as if the person had not made the election.

(8)  Section 10B does not apply to a person who makes an election under this section, unless STC directs that that section shall apply to the person.

(9)  A person who ceases to be an employee and elects under section 38B to take the benefit of Division 3A may not, upon entering the service of an employer within the next succeeding period of 3 months, make an election under this section if, during that period, the person received any benefit under that Division.

(10)  Where a person who is deemed under subsection (11) not to have ceased to be an employee had, upon ceasing to be an employee, elected under section 38B to take the benefit of Division 3A:

(a)  the person shall be deemed not to have elected to take the benefit of Division 3A, and

(b)  no person has any rights in the Fund in relation to the employee-contributed pension component, or the employer-financed pension component, calculated in relation to the person.

(11)  A person who makes an election under, and complies with, this section shall, for the purposes of this Act, but subject to subsection (8), be deemed not to have ceased to be an employee or a contributor by reason of the cessation of employment that gave rise to the election.

(12)  If a person who is deemed under subsection (11) not to have ceased to be an employee had, on ceasing to be an employee, elected to take the benefit of section 37B:

(a)  the person is deemed not to have elected to take the benefit of that section, and

(b)  any lump sum amount payable by the employee to the Fund under that section ceases to be payable and, if it has already been paid to the Fund, is to be refunded to the employee.

39   Desertion of spouse or de facto partner or child

(1)  Where any pensioner deserts his or her spouse or de facto partner, the spouse or de facto partner may from time to time apply to any Magistrate, and on proof of such desertion such Magistrate may order the payment during such period as the Magistrate thinks desirable of pension under section 31 as if the said pensioner were dead or of pension of such lesser amount as the Magistrate may determine, subject to the pension so ordered to be paid not exceeding the pension being paid to the pensioner at the time of the order. STC shall comply with any such order which has been served on it or of which written notice has been given to it.

(2)  Where any pensioner deserts any of the pensioner’s children who are dependent on the pensioner, the guardian of such children, or STC, may apply to any Magistrate, and on proof of such desertion such Magistrate may order the payment of pension under section 32D or 33 as if the said pensioner were dead subject to the pension so ordered to be paid not exceeding the pension payable to the pensioner at the time of the order. STC shall comply with any such order made on its application or with any such order made on the application of the guardian where the same has been served on it or where written notice thereof has been given to it.

(3)  Where a certificate has been granted under subsection (1) of section 45 of the Maintenance Act 1964, the person entitled to receive the money ordered to be paid by the order to which the certificate relates may, in lieu of filing the certificate or causing the same to be filed as provided in subsection (2) of that section, file the same or cause it to be filed with STC.

Where the defendant named in such certificate is a contributor who has resigned or been dismissed or discharged from the service of an employer and who has not been paid the lump sum referred to in subsection (1) of section 38, or payable under section 38A, STC may pay to the person entitled as aforesaid out of such lump sum the amount specified in the certificate or so much as does not exceed such lump sum or the unpaid balance thereof.

(4) 

(a)  Any payment to a deserted spouse or de facto partner or in respect of children under this section shall take effect from the date that notice of such order or certificate is received by STC.

(b)  Every payment made by STC pursuant to an order or certificate referred to in subsection (1), (2) or (3) shall be as valid as if made to the pensioner or contributor.

40   Male pensioner sentenced to imprisonment

(1)  Where any male pensioner is in prison for any period in excess of one month:

(a)  his spouse or de facto partner may be paid during any such period of imprisonment pension for the spouse or de facto partner and in respect of any children of the pensioner or the spouse or de facto partner that would have been payable under sections 31 and 32D if the pensioner were dead, or

(b)  in any other case, pension may be paid in respect of any children of himself or his spouse or de facto partner in accordance with the provisions of section 33 as if the pensioner were dead.

(2)  Any amount payable to a spouse or de facto partner or in respect of children in accordance with paragraphs (a) and (b) of subsection (1) shall be deducted from any pension payable to the pensioner and the balance of such pension shall be paid to him or to such person including his spouse or de facto partner, or a person on behalf of his children, as STC determines.

(3)  Any payment made by STC under the authority of this section shall:

(a)  be as valid as if made by way of pension to the pensioner, and

(b)  not exceed the amount of pension which but for his imprisonment would have been payable to the pensioner.

41   Woman pensioner sentenced to imprisonment

(1)  Where any woman pensioner is in prison for any period in excess of one month STC may suspend payment of pension during such period of imprisonment or may pay the pension or part thereof to such person as STC may determine on the pensioner’s behalf and any balance of such pension shall be paid to the pensioner.

(2)  Where any female spouse or de facto partner in receipt of a pension under section 30 or 31 is in prison for any period in excess of one month any pension payable to her in respect of children shall be payable in accordance with the provisions of section 33 as if she were dead.

(3)  Any pension payable in respect of children under subsection (2) shall be deducted from the pension payable to the female spouse or de facto partner and the pension payable in respect of her children and the balance, if any, of such pension shall be paid to her or to such person as STC may determine on her behalf.

(4)  Any payment made by STC under the authority of this section shall:

(a)  be as valid as if made by way of pension to the pensioner, and

(b)  not exceed the amount of pension which but for her imprisonment would have been payable to the pensioner.

42   Incapacity or absence of pensioner

(1)  Subject to sections 39, 40 and 41 if because of a pensioner’s incapacity from any cause or because a pensioner cannot be found STC is of opinion that payment of a pension or other benefit under this Act should be made to a person other than the pensioner or other beneficiary and is satisfied that such payment will be used for the maintenance, care and support of the pensioner or beneficiary, or a person who is wholly or partly dependent on the pensioner or beneficiary, STC may make payment of the pension or part thereof to such other person during the period of absence or incapacity.

(2)  Any amount payable pursuant to subsection (1) shall be deducted from any pension or benefit payable to the pensioner or beneficiary.

(3)  Any payment made by STC under the authority of this section shall be as valid as if made by way of pension or benefit to the pensioner or beneficiary, as the case may be.

43   Payments in respect of children

(1)  A pension payable under this Act in respect of a child shall be paid to the child’s mother, if living, or, if she is not living, to the child’s father, if living.

(2)  Notwithstanding anything elsewhere contained in this Act, any money payable out of the Fund under this Act in respect of a child may, at the discretion of STC, be paid to the child’s guardian or expended by STC for the benefit of the child.

(3)  Not more than one pension may be paid in respect of the one child during any one period and where, but for this subsection, pensions would be payable, in respect of the child, of the appropriate amount per fortnight under both section 61M and section 61N, the pension payable shall be that of the appropriate amount per fortnight under section 61N.

(4)  (Repealed)

43A   Pensions in respect of students

(1)  The provisions of this section shall have effect notwithstanding anything elsewhere in this Act contained.

(2)  In this section student means a person who, though having attained the age of eighteen years, is under the age of twenty-five years and is receiving full time education from a school, college or university approved by STC.

(3)  A pension under this section:

(a)  shall be payable in respect of a student if a pension would be payable in respect of such student were the student under the age of eighteen years, and

(b)  shall be payable to such persons as STC determines a pension would have been payable were such student under the age of eighteen years or shall be expended by STC towards the support or education of such student.

(4)  The amount of pension payable under this section shall be:

(a)  in the case of a student in respect of whom a pension would be payable under section 33 were the student under the age of eighteen years—the appropriate amount per fortnight under section 61N, or

(b)  in any other case—the appropriate amount per fortnight under section 61M.

(5)  A pension payable under this section shall be paid until the student attains the age of twenty-five years or ceases to be a student or dies whichever first occurs.

(6)  A pension shall not be paid to any person in respect of a student unless STC is satisfied that such pension is being used for or towards, or such person contributes towards, the support or education of such student.

(7)  For the purposes of this section STC may at any time require evidence of the age of the student, the education being received by the student, or the support or education of the student for or towards which the pension is being used, or being contributed to by any person to whom a pension under this section is payable.

In default of the provision of such evidence or if in the opinion of STC the evidence provided is not satisfactory STC may refuse to pay such pension.

44   Pensions payable for a life

(1)  Except where otherwise specifically provided, a pension shall be payable during the life of the person entitled thereto.

(2)  Pensions in respect of children shall be payable until they reach the age of eighteen years or die under that age.

45   Pensions payable fortnightly

Pensions shall be payable by equal fortnightly instalments.

46   Reduction of spouses’ or de facto partners’ pensions

Except where otherwise specifically provided, in any case where in this Act provision is made for the pension of any person to be determined by STC, any pension under this Act to the person’s spouse or de facto partner in respect of the spouse’s or de facto partner’s own life shall be two-thirds of the amount so determined, but not less than one unit.

46A   Miscellaneous provisions as to spouses’ or de facto partners’ pensions

(1)  In this section, spouse’s or de facto partner’s pension means a pension under section 30 or 31.

(2)  (Repealed)

(3)  Where, but for this subsection, a person would be entitled to more than one spouse’s or de facto partner’s pension, the person shall be entitled to only one of those pensions, being (where they are not equal) the greater or greatest of them.

(4)  A reference in:

(a)  section 30 (1) to the pension that would have been payable to a male contributor on his retirement,

(b)  section 30 (2) to the pension that would have been payable to a woman contributor on her retirement,

(c)  section 31 (1) to the pension payable to a spouse or de facto partner at the time of the spouse’s or de facto partner’s death, or

(d)  section 31 (2) to the pension payable to a spouse or de facto partner at the time of the spouse’s or de facto partner’s death,

      does not include a reference to a spouse’s or de facto partner’s pension.

46B   Competing claims for spouses’ or de facto partners’ pensions

(1)  This section applies to a pension under this Act which is payable to the spouse or de facto partner of a deceased person.

(2)  Where, but for this subsection, a pension to which this section applies would be payable to more than 1 person (because a deceased person has left more than 1 spouse or de facto partner):

(a)  the pension is payable in accordance with a determination made by STC, and not otherwise, and

(b)  the total amount of pension payable to those persons at any time shall not exceed the amount of a single pension.

(3)  For the purpose of subsection (2) (a), STC may determine in relation to a pension to which this section applies:

(a)  that the pension is not payable to such of the persons concerned as it specifies, or

(b)  that, subject to subsection (2) (b), the amount of the pension shall be apportioned between the persons concerned in such manner as it specifies.

(4)  STC may withhold the payment of any part of a pension to which this section applies by reason of the death of a person or, if any such pension is commuted, withhold the payment of any part of the amount commuted:

(a)  until the expiration of the period of 30 days after the death of the person, or

(b)  where application has been made for the pension by more than 1 person, until it is satisfied that only 1 of those persons is entitled to the pension or until a determination is made in relation to the matter by STC under this section.

(5)  Where, after the expiration of 30 days following the death of a person, a pension to which this section applies is paid in respect of any period to the spouse or de facto partner of the deceased person, a pension to which this section applies is not payable to any other spouse or de facto partner of the deceased person in respect of that period.

(6)  Where, after the expiration of 30 days following the death of a person, the whole or part of a pension to which this section applies is commuted by a spouse or de facto partner of the deceased person:

(a)  where the whole of the pension is commuted—a pension to which this section applies is not payable to any other spouse or de facto partner of the deceased person, or

(b)  where part of the pension is commuted—so much of a pension to which this section applies as is equal to the amount of the pension so commuted is not payable to any other spouse or de facto partner of the deceased person.

(7)  For the purposes of subsections (5) and (6), an amount paid in good faith by STC to a person purporting to be the spouse or de facto partner of a deceased person shall be deemed to have been paid to such a spouse or de facto partner.

(8)  Where, after the expiration of 30 days following the death of a person, any amount is paid under this Act to the person’s personal representatives or to such other persons as STC may determine, any pension to which this section applies which is payable to the spouse or de facto partner of the deceased person shall be reduced, in the prescribed manner, by the amount so paid.

(9)  For the purposes of subsection (8), the prescribed manner of reducing a benefit to which this section applies by a particular amount is:

(a)  the manner prescribed by the regulations, or

(b)  where no manner is prescribed by the regulations, such manner as STC determines.

47   Pensions for certain spouses or de facto partners and their children

(1)  Pension shall not, upon the death of a pensioner, be payable to a person who is the spouse or de facto partner of the deceased or in respect of any children of the spouse or de facto partner who are not children of the pensioner unless:

(a)  in the case of the spouse or de facto partner of a pensioner receiving a pension under section 29, the person was the pensioner’s spouse or de facto partner:

(i)  before becoming entitled to that pension, or

(ii)  before the pensioner attained the maturity age and more than 3 years before the death of the pensioner, or

(b)  in any other case, the person was the pensioner’s spouse or de facto partner before becoming entitled to a pension under this Act,

      and unless the person remained the pensioner’s spouse or de facto partner until the date of death.

(2)  Despite subsection (1), a pension is payable under section 31, on the death of a pensioner on or after the commencement of this subsection, to the spouse or de facto partner of the deceased pensioner if the spouse or de facto partner:

(a)  became such a spouse or de facto partner after the deceased pensioner became entitled to a pension under this Act, and

(b)  has or had in his or her marriage or relationship with the deceased pensioner a child, being:

(i)  a child of the spouse or de facto partner and the deceased pensioner who was, in the opinion of the trustees, wholly or substantially dependent on the deceased pensioner at any time during the marriage or relationship, or

(ii)  a child of the deceased pensioner who was conceived before and born alive after the death of the pensioner, and

(c)  had been married to, or living in the relationship with, the pensioner for 3 years or more immediately before the death of the pensioner.

(3)  Despite subsection (1), a pension reduced on a pro rata basis according to the proportion that the period of the marriage or relationship bears to 3 years is payable under section 31, on the death of a pensioner, to the spouse or de facto partner of the deceased pensioner if the spouse or de facto partner:

(a)  satisfies the requirements of subsection (2) (a) and (b), and

(b)  had been married to, or living in the relationship with, the pensioner for less than 3 years immediately before the death of the pensioner.

Note. Section 31 provides for the rate of pension to be paid to the spouse or de facto partner on the death of a pensioner.

47A   (Repealed)

47B   Employer subsidy not to be of greater benefit if service not continuous

(1)  In this section withdrawal benefit means:

(a)  a benefit payable in accordance with section 38A (3) or (4), or

(b)  any other benefit payable to or in respect of a person on cessation of the person’s employment otherwise than by reason of the person’s death, where the benefit is wholly or partly payable pursuant to or from a retirement scheme, fund or arrangement to or in respect of which an employer or a public or local authority constituted by an Act makes, or is liable to make, a payment in respect of a person employed by the employer or authority.

(2)  Where a withdrawal benefit is paid, or is or will become payable, to a person and the person subsequently contributes to the Fund without complying with section 38C, any benefit (other than a benefit payable pursuant to section 38 or a benefit referred to in paragraph (a) of subsection (1)) payable in respect of that person shall be reduced in a manner determined by STC having regard to the amount of any withdrawal benefit previously paid to the person.