Commonwealth Numbered Acts

SUPERANNUATION LEGISLATION AMENDMENT ACT 1991 No. 130, 1991 - SECT 29

29. Division 5 of Part VI of the Principal Act is repealed and the following
Division is substituted:

"Division 5 - Miscellaneous Eligible employee or retirement pensioner survived
by one spouse and child not in the custody, care and control of the spouse

"109AB. (1) Where a person (in this section called the `deceased person') who
is an eligible employee or a retirement pensioner dies and is survived by one
spouse and by an eligible child or eligible children, or a partially dependent
child or partially dependent children, not in the custody, care and control of
the spouse, benefit is only payable under Division 1, 2, 3 or 3A in accordance
with this section.

"(2) The amount of spouse's pension payable to the spouse must not exceed:

   (a)  if the deceased person was, immediately before his or her death, an
        eligible employee who had not attained his or her maximum retiring age
        - the applicable percentage of the annual rate of the invalidity
        pension to which the deceased eligible employee would have been
        entitled under section 67 or 70 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to invalidity pension under that section; or

   (b)  if the deceased person was, immediately before his or her death, an
        eligible employee who had attained his or her maximum retiring age -
        the applicable percentage of the annual rate of the standard age
        retirement pension to which the deceased eligible employee would have
        been entitled under section 56 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to standard age retirement pension under that section; or

   (c)  if the deceased person was, immediately before his or her death, a
        retirement pensioner - the applicable percentage of the annual rate of
        pension payable to the retirement pensioner immediately before his or
        her death.

"(3) The applicable percentage mentioned in subsection (2) is:

   (a)  if there are no eligible children of the deceased person in the
        custody, care and control of the spouse - 67%; or

   (b)  if there is one such eligible child - 78%; or

   (c)  if there are 2 such eligible children - 89%; or

   (d)  if there are 3 or more such eligible children - 100%.

"(4) The Commissioner must, having regard to:

   (a)  the needs of the spouse; and

   (b)  the respective needs of any eligible child or eligible children, or
        any partially dependent child or partially dependent children, of the
        deceased person; and

   (c)  such other matters as the Commissioner considers relevant; subject to
        the limitations set out in subsections (5) and (7), determine the part
        of a benefit to which the spouse is entitled under Division 1, 2, 3 or
        3A that is attributable to each such child.

"(5) Benefit attributed under subsection (4) to an eligible child or eligible
children of the deceased person not in the custody, care and control of the
spouse must not exceed in the aggregate:

   (a)  if the deceased person was, immediately before his or her death, an
        eligible employee who had not attained his or her maximum retiring age
        - the applicable percentage of the annual rate of the invalidity
        pension to which the deceased eligible employee would have been
        entitled under section 67 or 70 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to invalidity pension under that section; or

   (b)  if the deceased person was, immediately before his or her death, an
        eligible employee who had attained his or her maximum retiring age -
        the applicable percentage of the annual rate of the standard age
        retirement pension to which the deceased eligible employee would have
        been entitled under section 56 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to standard age retirement pension under that section; or

   (c)  if the deceased person was, immediately before his or her death, a
        retirement pensioner - the applicable percentage of the annual rate of
        pension payable to the retirement pensioner immediately before his or
        her death.

"(6) The applicable percentage mentioned in subsection (5) is:

   (a)  if there is one eligible child not in the custody, care and control of
        the spouse - 45%; or

   (b)  if there are 2 such eligible children - 80%; or

   (c)  if there are 3 such eligible children - 90%; or

   (d)  if there are 4 or more such eligible children - 100%.

"(7) Benefit attributed under subsection (4) to a partially dependent child or
partially dependent children of the deceased person must not exceed in the
aggregate the lesser of:

   (a)  the annual rate of the regular maintenance payments being made, or
        required to be made by order of a court, in relation to the child or
        children by the deceased person immediately before his or her death;
        or

   (b)  the maximum benefit that, under subsection (5), could be attributed to
        the child or children if the child or children were an eligible child
        or eligible children, as the case may be, of the deceased person not
        in the custody, care and control of the spouse.

"(8) The Commissioner must not determine that a part of spouse's additional
pension, being such pension mentioned in sections 89 and 93, is attributable
to a partially dependent child or partially dependent children.

"(9) Where the Commissioner makes a determination under subsection (4), the
spouse may make any election under this Act in relation to the part of a
benefit that, under the determination, is not attributable to a child or
children (being a child or children not in the custody, care and control of
the spouse) as if the part of the benefit were the whole of the benefit to
which the spouse had become entitled.

"(10) Where a determination is made under subsection (4), the Commissioner,
having regard to the respective needs of the persons mentioned in that
subsection and to such other matters as the Commissioner considers relevant,
may vary the determination from time to time.

"(11) A reference in subsection (2) to spouse's pension does not include a
reference to spouse's additional pension mentioned in sections 89 and 93.
Eligible employee or retirement pensioner survived by more than one spouse

"110. (1) Where a person (in this section called the `deceased person') who is
an eligible employee or a retirement pensioner dies and is survived by more
than one spouse, benefit is only payable under Division 1, 2, 3 or 3A in
accordance with this section.

"(2) Subject to this section and section 110AB, benefit payable under Division
1, 2, 3 or 3A to those spouses is such benefit as would be payable in respect
of the deceased person if the deceased person had had only one spouse who
survived him or her.

"(3) The Commissioner must, having regard to:

   (a)  the respective needs of the surviving spouses; and

   (b)  the respective needs of any eligible child or eligible children, or
        any partially dependent child or partially dependent children, of the
        deceased person; and

   (c)  such other matters as the Commissioner considers relevant; allocate
        any benefit payable in respect of the deceased person under Division
        1, 2, 3 or 3A (other than a benefit payable in accordance with section
        91) among those spouses, subject to the limitations set out in
        subsections (4) and (5), and benefit is payable accordingly.

"(4) The amount of spouse's pension payable to a spouse must not exceed:

   (a)  if the deceased person was, immediately before his or her death, an
        eligible employee who had not attained his or her maximum retiring age
        - the applicable percentage of the annual rate of the invalidity
        pension to which the deceased eligible employee would have been
        entitled under section 67 or 70 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to invalidity pension under that section; or

   (b)  if the deceased person was, immediately before his or her death, an
        eligible employee who had attained his or her maximum retiring age -
        the applicable percentage of the annual rate of the standard age
        retirement pension to which the deceased eligible employee would have
        been entitled under section 56 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to standard age retirement pension under that section; or

   (c)  if the deceased person was, immediately before his or her death, a
        retirement pensioner - the applicable percentage of the annual rate of
        pension payable to the retirement pensioner immediately before his or
        her death.

"(5) The applicable percentage mentioned in subsection (4) is:

   (a)  if there are no eligible children of the deceased person in the
        custody, care and control of the spouse - 67%; or

   (b)  if there is one such eligible child - 78%; or

   (c)  if there are 2 such eligible children - 89%; or

   (d)  if there are 3 or more such eligible children - 100%.

"(6) Where, under subsection (3), the Commissioner allocates a benefit payable
in respect of a deceased person and there is an eligible child or eligible
children, or a partially dependent child or partially dependent children, of
the deceased person, the Commissioner must determine the part of the benefit
that is attributable to each such child other than, in the case of a benefit
payable under section 91 or 95, a partially dependent child.

"(7) Benefit attributed under subsection (6) to an eligible child or eligible
children of the deceased person not in the custody, care and control of any of
the surviving spouses must not exceed in the aggregate:

   (a)  if the deceased person was, immediately before his or her death, an
        eligible employee who had not attained his or her maximum retiring age
        - the applicable percentage of the annual rate of the invalidity
        pension to which the deceased eligible employee would have been
        entitled under section 67 or 70 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to invalidity pension under that section; or

   (b)  if the deceased person was, immediately before his or her death, an
        eligible employee who had attained his or her maximum retiring age -
        the applicable percentage of the annual rate of the standard age
        retirement pension to which the deceased eligible employee would have
        been entitled under section 56 if he or she had not died, but had, on
        the day immediately following the date of his or her death, become
        entitled to standard age retirement pension under that section; or

   (c)  if the deceased person was, immediately before his or her death, a
        retirement pensioner - the applicable percentage of the annual rate of
        pension payable to the retirement pensioner immediately before his or
        her death.

"(8) The applicable percentage mentioned in subsection (7) is:

   (a)  if there is one eligible child not in the custody, care and control of
        any of the surviving spouses - 45%; or

   (b)  if there are 2 such eligible children - 80%; or

   (c)  if there are 3 such eligible children - 90%; or

   (d)  if there are 4 or more such eligible children - 100%.

"(9) Benefit attributed under subsection (6) to a partially dependent child or
partially dependent children of the deceased person must not exceed in the
aggregate the lesser of:

   (a)  the annual rate of the regular maintenance payments being made, or
        required to be made by order of a court, in relation to the child or
        children by the deceased person immediately before his or her death;
        or

   (b)  the maximum benefit that, under subsection (7), could be attributed to
        the child or children if the child or children were an eligible child
        or eligible children, as the case may be, of the deceased person not
        in the custody, care and control of any of the surviving spouses.

"(10) Where the deceased person was, immediately before his or her death, an
eligible employee who had attained his or her maximum retiring age:

   (a)  the Commissioner, having regard to:

   (i)  the respective needs of the surviving spouses; and

   (ii) the respective needs of any eligible child or eligible children; and

   (iii) such other matters as the Commissioner considers relevant; must, for
        the purposes of ascertaining the benefit payable in accordance with
        section 91, allocate the accumulated contributions of the deceased
        person among such spouses; and

   (b)  section 91 applies in relation to a spouse of the deceased person as
        if:

   (i)  the deceased person had had only one spouse who survived him or her
        and that person were that spouse; and

   (ii) the accumulated contributions of the deceased person were the part of
        those contributions allocated to that spouse under paragraph (a); and

   (iii) each reference in that section to 13.4 per centum were a reference to
        such percentage as bears to 13.4 per centum the same proportion as the
        part of the accumulated contributions of the deceased person allocated
        to that spouse under paragraph (a) bears to the accumulated
        contributions of the deceased person.

"(11) Where, under subsection (10), the Commissioner allocates a benefit
payable in respect of a deceased person and there is an eligible child or
eligible children of the deceased person not in the custody, care and control
of any of the surviving spouses, the Commissioner must determine the part of
the benefit that is attributable to each such child.

"(12) Each of the surviving spouses of a deceased person may make such
elections under this Act in relation to the part of a benefit allocated to the
spouse that is not attributable to a child or children (being a child or
children not in the custody, care and control of the spouse) as could be made
by the spouse in relation to the benefit if the deceased person had had only
one spouse who survived him or her and that person were that spouse.

"(13) Where a benefit is payable in accordance with an allocation made under
subsection (3) or (10), the Commissioner, having regard to the respective
needs of the persons mentioned in that subsection and to such other matters as
the Commissioner considers relevant, may vary the allocation from time to
time.

"(14) Where:

   (a)  benefit is payable to the surviving spouses of a deceased person under
        subsection 81 (1) or (2); and

   (b)  the spouses are entitled under subsection (12) of this section to make
        an election under section 84 or 87; and

   (c)  one or more, but not all, of the surviving spouses make such an
        election; then:

   (d)  unless the Commissioner otherwise directs, orphan pension is not
        payable in respect of a child (including an adopted child, an
        ex-nuptial child, a foster child, a step-child or a ward) of a spouse
        who makes such an election; and

   (e)  if orphan pension becomes payable in respect of a child or children of
        the deceased person, the rate of the pension is such rate as the
        Commissioner determines, being a rate equal to such rate as the
        Commissioner considers would have been the rate of pension payable to,
        or for the benefit of, that child or those children but for paragraph
        (d).

"(15) Orphan benefit is not payable under section 102, 103, 104, 107 or 108 in
respect of the children of a deceased person until the death of the last of
the surviving spouses entitled to pension under this section.

"(16) A reference in subsection (4) to spouse's pension does not include a
reference to spouse's additional pension mentioned in sections 89 and 93.
Spouse's pension to be increased in certain circumstances

"110AB. (1) If, at any time:

   (a)  spouse's pension is payable:

   (i)  to the spouse of a deceased eligible employee under section 82, 83,
        85, 86 or 90; or

   (ii) to the spouse of a deceased pensioner under section 94 or 96; and

   (b)  the sum of the spouse's pension and extra spouse's pension (if any) is
        less than the annual rate of the pension by reference to which the
        rate of spouse's pension is calculated under whichever is applicable
        of section 82, 83, 85, 86, 90, 94 or 96 (in this section called the
        `base amount'); and

   (c)  there is more than one spouse of the deceased eligible employee or
        pensioner; the spouse's pension is increased under this section.

"(2) The increase in the annual rate of spouse's pension is:

   (a)  the applicable percentage of the base amount; or

   (b)  the amount by which the base amount exceeds the sum of the spouse's
        pension and the extra spouse's pension; whichever is less.

"(3) Where, at any time, the spouse's pension is increased under this section,
the applicable percentage is:

   (a)  if there are 2 spouses - 11%; or

   (b)  if there are 3 spouses - 22%; or

   (c)  if there are 4 or more spouses - 33%.".