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Commonwealth Superannuation Board Bill 1998

Part 3 Functions and powers of the Board

   

7   Functions and powers

             (1)  The Board has the functions and powers conferred on it by this Act and the superannuation legislation.

             (2)  The Board is also responsible for the general administration of the superannuation legislation and for such other matters related to the superannuation legislation as the Minister specifies in a written notice given to the Board.

             (3)  The Board also has such functions, powers and responsibilities, in relation to declared non-statutory superannuation instruments as the Minister determines.

             (4)  A determination under subsection (3) has effect despite anything in the declared non-statutory superannuation instrument concerned.

             (5)  Without limiting the Board’s powers under any of the provisions of the superannuation legislation or under subsection (3), the Board has power, for or in connection with the performance of its functions, to enter into contracts, including, to remove any doubt, contracts for the engagement of employees and contracts for the engagement of persons to provide services to the Board.

             (6)  Despite anything in any provision of the superannuation legislation or in any provision of a declared non-statutory superannuation instrument, if, in a particular case (the relevant case ), the Board is of the opinion that:

                     (a)  the operation of the legislation or instrument would otherwise produce a result that is not in the spirit of the legislation or instrument; and

                     (b)  the circumstances of the case are unusual or exceptional;

the Board may, having regard to the purposes of, or any principles in, the legislation or instrument and the need for equity between people who are, or may become, entitled to pensions or other benefits (including deferred or preserved benefits) under the legislation or instrument, make a determination:

                     (c)  varying any of the components or factors applying in the determination of a pension or other benefit in the relevant case, whether or not the pension or other benefit is immediately payable; or

                     (d)  providing for the payment in the relevant case of a pension or other benefit that would not otherwise be payable.

8   Minister or Board may make certain variations to superannuation legislation or declared non-statutory superannuation instruments

             (1)  Subject to subsection (2), the Minister may make determinations varying the operation of any provisions of the superannuation legislation or of a declared non-statutory superannuation instrument.

             (2)  The Minister may not make a determination under subsection (1) unless:

                     (a)  the Board has consented to the making of the determination; or

                     (b)  the determination:

                              (i)  relates to a payment by an employer-sponsor within the meaning of the SIS Act that will, after the making of the determination, be required or permitted to be made under the legislation or instrument; or

                             (ii)  relates solely to the termination, in whole or in part, of the legislation or instrument or of any superannuation scheme constituted by or under the legislation or instrument; or

                            (iii)  is made in circumstances covered by regulations made for the purposes of subparagraph 60(1)(b)(iii) of the SIS Act.

             (3)  The Minister may give the Board a written statement setting out the policy of the Commonwealth Government on any matter affecting the operation or administration of the superannuation legislation or of any declared non-statutory superannuation instrument.

             (4)  Subject to this section and the SIS Act, the Board may make determinations varying the operation of any provisions of the superannuation legislation or of a declared non-statutory superannuation instrument for the purpose of:

                     (a)  giving effect to the policy set out in a statement given under subsection (3); or

                     (b)  complying with a requirement of the SIS Act or ensuring that the provisions are consistent with a requirement of any other law of the Commonwealth; or

                     (c)  simplifying or facilitating the operation of the legislation or instrument.

             (5)  The references in subsections (1) and (4) to determinations varying the operation of any provisions of the superannuation legislation or of a declared non-statutory superannuation instrument include references to determinations inserting new provisions in the legislation or instrument.

             (6)  The reference in subsection (4) to provisions of the superannuation legislation does not include a reference to:

                     (a)  provisions determining the people who are eligible employees for the purposes of the repealed Superannuation Act 1976 or the people who are members for the purposes of the repealed Superannuation Act 1990 ; or

                     (b)  provisions determining the authorities or other bodies that are approved authorities for the purposes of either of those repealed Acts; or

                     (c)  provisions conferring powers on the Board; or

                     (d)  section 27 of the Superannuation Legislation (Commonwealth Employment—Saving and Transitional Provisions) Act 1998 .

             (7)  The reference in subsection (4) to provisions of a declared non-statutory superannuation instrument does not include a reference to provisions determining the people who are members of a superannuation scheme established under or for the purposes of that instrument.

             (8)  In making a determination under subsection (4), the Board must take into account:

                     (a)  the purpose and intent of the provisions; and

                     (b)  the purpose and intent of the policy or of the legislation or instrument; and

                     (c)  the interests of the people who are, or may become, entitled to pensions or other benefits under the legislation or instrument; and

                     (d)  the interests of the Commonwealth.

             (9)  The Board must not make a determination under subsection (4) that would increase the cost of the relevant superannuation scheme unless the Minister has agreed to the making of the determination.

           (10)  A determination made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

           (11)  Subsection 48(2) of the Acts Interpretation Act 1901 does not apply in relation to a determination made under this section.

9   Relationship between superannuation legislation and the SIS Act

Board to comply with requirements of SIS Act

             (1)  If the Board would, except for a provision of the superannuation legislation, be required by the SIS Act to do a particular act, then, despite the provision, the Board is to comply with the requirement.

Powers conferred by SIS Act to be subject to superannuation legislation

             (2)  Except as provided by subsection (1), nothing in the SIS Act permits the Board to do any act that is not expressly authorised by the superannuation legislation to be done by the Board.

Prohibitions in SIS Act to override superannuation legislation

             (3)  If the Board would, except for a provision of the superannuation legislation, be prohibited by the SIS Act from doing a particular act, then, despite the provision, the Board is prohibited from doing that act.