Pension Rights, &c.
Schedule 1 Pension Rights, &c.
Part 1 Contributions and Pension Rates Section 9
1. Contributions
A person holding the office of Solicitor-General may, within 1 month after being appointed to that office, elect to become a contributor for the purposes of this Schedule, and, where he so elects and complies with such conditions and requirements (if any) as may be prescribed in the regulations, he shall thereafter pay contributions of amounts equal to 5 per cent of his salary and, where so prescribed, such supplementary contributions of such amounts (if any) as may be prescribed in, or determined in accordance with, the regulations.
Contributions to be paid under subsection (1) shall be paid to the Treasurer in such manner and at such times as the Treasurer determines.
Contributions paid under this clause and sums paid under clause 7(2) shall be credited to the Judges Pension Fund.
2. Pension to Solicitor-General, &c., on retirement
Where a person holding the office of Solicitor-General has paid contributions (including any supplementary contributions) in accordance with clause 1, he becomes entitled to the pension referred to in subclause (2) –
on vacating office as referred to in section 6(1)(a) after having served as Solicitor-General for not less than 10 years;
on resigning his office before reaching the age of retirement after having served as Solicitor-General for not less than 15 years; or
on resigning his office before reaching the age of retirement or being removed from office under section 6(3) after having served as Solicitor-General for a period less than 15 years where the Minister certifies in writing that the resignation or removal was due to disability or infirmity.
The pension to which a person becomes entitled under subsection (1) is a pension at the rate of one-half of the salary for the time being payable to a puisne judge.
In subclause (1), a reference to a person having served as Solicitor-General includes a reference to having served as Solicitor-General before the commencement day and also includes a reference to any other service that is deemed by the regulations to be service as Solicitor-General for the purposes of this Schedule.
3. Pension payable to spouse
When a person holding the office of Solicitor-General dies after having paid contributions (including any supplementary contributions) in accordance with clause 1, his or her spouse (if any) becomes entitled to the pension referred to in subclause (3).
Where a former Solicitor-General who has become entitled to a pension under clause 2 dies, his or her spouse, if the marriage or significant relationship, within the meaning of the Relationships Act 2003, existed at the time when the former Solicitor-General became so entitled, becomes entitled to a pension referred to in subclause (3).
Subclause (2) does not apply to a person's widow or widower if –
the widow or widower married the deceased person after the date on which she or he became entitled to a pension under clause 2; or
in the case of a de facto husband or wife, the de facto relationship commenced after that date.
The pension to which a spouse becomes entitled under subclause (1) or (2) is a pension at the rate of one-third of the salary referred to in clause 2(2).
4. Calculation of rates of pension
Where under this Schedule a person becomes entitled to a pension at the rate of a specified proportion of the salary of a puisne judge, the Treasurer shall pay to that person a pension at a rate that is equivalent to that proportion of what is for the time being the rate of that salary.
A pension referred to in subclause (1) accrues from day to day and is payable monthly or in such other manner as the Treasurer, with the agreement of the person concerned, may determine.
A pension payable under this Schedule is to be reduced to take account of any commutation of the pension under clause 8 or 9.
5. Return of contributions
Where a person who vacates the office of Solicitor-General (otherwise than on becoming a judge) does not become entitled to a pension under this Act, the Treasurer shall pay to him a sum equivalent to the amount of the contributions (including any supplementary contributions) paid by him under this Schedule.
Where a person dies while holding the office of Solicitor-General and no person becomes entitled on his death to a pension under clause 3, the Treasurer shall pay to his legal personal representatives a sum equivalent to the amount of the contributions (including any supplementary contributions) paid by the first-mentioned person under this Schedule.
6. Pensions, &c., to be charge on Public Account A pension or sum required to be paid under this Schedule by the Treasurer is a charge on the Public Account and shall be so paid without further appropriation than this clause.
7. Effect on pension rights of appointment of Solicitor-General as judge
If a person who holds or has held office as Solicitor-General becomes a judge –
subject to subclause (2), the period during which he held office as Solicitor-General shall, for the purposes of section 5 of the Judges' Contributory Pensions Act 1968, be added to, and be deemed part of, his period of service as a judge; and
if, at any time when he becomes a judge he is in receipt of a pension under this Schedule by virtue of this Act, that pension ceases to be payable, but if at any such time he is not so in receipt of a pension under this Schedule, a pension does not become payable to him or his spouse by virtue of the operation of this Schedule.
Paragraph (a) of subclause (1) does not apply to a person who, having held office as Solicitor-General, has, after the commencement of the Solicitor-General Amendment Act 1988, received a payment under clause 5(1) and has not, within 1 month of becoming a judge, paid to the Treasurer a sum equal to the payment so received.
7A. Commutation of pension to lump sum by Solicitor-General or spouse The application of sections 10A, 10B, 10C and 10D of the Judges' Contributory Pensions Act 1968 extends to the commutation of a pension payable under this Act by the Solicitor-General or, if he predeceases his spouse, that spouse, as if references in those sections to a person to whom that Act applies were read as references to the Solicitor-General.
8. Commutation of pension to lump sum to pay surcharge liability
Where a person ceases to hold office as Solicitor-General, he or she may, by notice in writing to the Minister, elect to commute sufficient of his or her pension to a lump sum payment in order to discharge his or her surcharge liability.
On receipt of the notice, the Minister must commute sufficient of the person's pension entitlement to a lump sum payment and pay it to that person to enable him or her to discharge his or her surcharge liability.
The Minister must determine the lump sum in accordance with the appropriate age, marital and gender factors specified for a pension determined in accordance with the Retirement Benefits Act 1993.
9. Death of Solicitor-General with surcharge liability If a person holding office as Solicitor-General dies with an outstanding surcharge liability, his or her spouse may elect to commute her or his pension entitlement to a lump sum payment in order to discharge any surcharge liability, in which case clause 8 applies to that election as if it were an election under that clause.
10. Increases in annual pension If a part of a pension payable under this Schedule is commuted, any future increase in the annual pension entitlement as the result of an increase in the current Solicitor-General's salary is to be calculated in accordance with the following formula:
where –
P is the new pension payable to a person in receipt of a pension payable under this Act;
RP is the pension payable to a person in receipt of a pension payable under this Act immediately before the increase;
A is the salary being paid to the current Solicitor-General;
B is the salary paid to the current Solicitor-General immediately before the increase.
P is the new pension payable to a person in receipt of a pension payable under this Act;
P
RP is the pension payable to a person in receipt of a pension payable under this Act immediately before the increase;
RP
A is the salary being paid to the current Solicitor-General;
A
B is the salary paid to the current Solicitor-General immediately before the increase.
B
11. Reduction in pension
A pension payable under this Act –
is to be reduced to take into account any commutation of the pension under clause 7A or 8; and
is subject to Part 2 of this Schedule which carries into effect the provisions of the Family Law Act 1975 of the Commonwealth relating to the splitting of superannuation interests, as defined in Part VIIIB of that Act.
A lump sum payment under this Act is subject to Part 2 of this Schedule.
12. Requirement for minimum benefit A benefit payable under this Schedule must contain an employer component that is at least the minimum benefit that satisfies the requirements of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth.
Part 2 Family Law (Splitting of Superannuation Interests)
1. Interpretation In this Part –
Family Law Act means the Family Law Act 1975 of the Commonwealth;
flag lifting agreement has the meaning given by section 90MN of the Family Law Act;
flagging order means an order mentioned in section 90MU(1) of the Family Law Act;
member has the meaning given by section 90MD of the Family Law Act;
member spouse has the meaning given by section 90MD of the Family Law Act;
non-member spouse has the meaning given by section 90MD of the Family Law Act;
operative time has the meaning given by section 90MD of the Family Law Act;
splittable payment has a meaning in accordance with section 90ME of the Family Law Act;
splitting instrument means a superannuation agreement, a flagging order, a flag lifting agreement or a splitting order;
splitting order means an order mentioned in section 90MT(1) of the Family Law Act;
spouse has the meaning given by section 90MD of the Family Law Act;
superannuation agreement has the meaning given by section 90MH of the Family Law Act;
superannuation interest has the meaning given by section 90MD of the Family Law Act.
Family Law Act means the Family Law Act 1975 of the Commonwealth;
Family Law Act
flag lifting agreement has the meaning given by section 90MN of the Family Law Act;
flag lifting agreement
flagging order means an order mentioned in section 90MU(1) of the Family Law Act;
flagging order
member has the meaning given by section 90MD of the Family Law Act;
member
member spouse has the meaning given by section 90MD of the Family Law Act;
member spouse
non-member spouse has the meaning given by section 90MD of the Family Law Act;
non-member spouse
operative time has the meaning given by section 90MD of the Family Law Act;
operative time
splittable payment has a meaning in accordance with section 90ME of the Family Law Act;
splittable payment
splitting instrument means a superannuation agreement, a flagging order, a flag lifting agreement or a splitting order;
splitting instrument
splitting order means an order mentioned in section 90MT(1) of the Family Law Act;
splitting order
spouse has the meaning given by section 90MD of the Family Law Act;
spouse
superannuation agreement has the meaning given by section 90MH of the Family Law Act;
superannuation agreement
superannuation interest has the meaning given by section 90MD of the Family Law Act.
superannuation interest
2. Application of Part This Part applies to –
any benefit under this Act that is a superannuation interest; and
any splitting instrument that has an operative time on or after 28 December 2002.
3. Objects of Part
The objects of this Part are to carry into effect the provisions of the Family Law Act relating to the splitting of superannuation interests.
If a provision of this Part is inconsistent with a provision of the Family Law Act, the latter provision prevails to the extent of the inconsistency.
4. Duty of Minister to give effect to splitting instruments under Family Law Act
Where a splitting instrument affects an entitlement to a pension of a member spouse under this Act, the Minister must give effect to that instrument in paying or determining that benefit.
The Minister is not to make a payment to a non-member spouse under this Part before a splittable payment is payable to, or in respect of, the relevant member spouse.
5. Commutation of pension on death of non-member spouse
Where a share of a pension is payable to a non-member spouse under this Part, the Minister is to commute that share to a lump sum if that non-member spouse predeceases the member spouse in respect of whom the pension is being paid.
For the purposes of subclause (1), the commutation factors are to be determined by the Minister on the advice of the Actuary.
A share of a pension paid or payable to a non-member spouse under this Part does not revert to the widow or widower of that non-member spouse on the death of that non-member spouse.
A lump sum payment calculated under subclause (1) is to be paid to the legal personal representative of the non-member spouse and is to be made in accordance with Part VIIIB of the Family Law Act.
A share of a pension payable to a non-member spouse under this Part ceases –
on the death of the relevant member spouse; or
where a reversionary pension is payable in respect of a member spouse, on the cessation of that reversionary pension.
6. Effect of benefit under splitting instrument If a member spouse dies and is survived by a non-member spouse who has received, is receiving or is entitled to receive, a benefit under a splitting instrument in respect of the superannuation interest of the member spouse, that non-member spouse is not entitled to a benefit under this Act in respect of the deceased member spouse except in accordance with that instrument.
7. Fees for administration of this Part For the purposes of administering this Part, the Minister may charge reasonable fees in accordance with the Family Law Act.
8. Provision of information by Minister Where an eligible person, within the meaning of section 90MZB of the Family Law Act, has applied to the Minister for information in accordance with that section about the superannuation interest of a person entitled to a pension under Part 1 of this Schedule, the Minister must comply with the requirements of that Act as if he or she were the trustee of a superannuation fund.
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