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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Sentencing (Superannuation Orders) Act 2004
Act No.
Victorian Legislation Parliamentary Documents
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. New Part 3A inserted 2
PART 3A--SUPERANNUATION ORDERS 2
83B. Purpose of Part 2
83C. Application of Part 2
83D. Definitions 3
83E. Application for a superannuation order 11
83F. Court may make a superannuation order 13
83G. Effect of superannuation order 15
83H. Provisions applying to a superannuation order 15
83I. Powers of an authorised person to require information 16
83J. Protection of administrators providing information 16
83K. Disclosure of information 17
4. Consequential amendments 17
ENDNOTES 18
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PARLIAMENT OF VICTORIA
Initiated in Assembly 1 June 2004
Victorian Legislation Parliamentary Documents
A BILL
to amend the Sentencing Act 1991 to provide for the making of a
superannuation order as a new sentencing option and for other
purposes.
Sentencing (Superannuation Orders)
Act 2004
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the
Sentencing Act 1991 to enable a court to make a
superannuation order as a new sentencing option
where a person who is or has been a public sector
5
employee is convicted of an indictable offence
involving abuse of office, corruption or perversion
of the course of justice.
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Sentencing (Superannuation Orders) Act 2004
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Act No.
2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
Victorian Legislation Parliamentary Documents
3. New Part 3A inserted
See: After Part 3 of the Sentencing Act 1991 insert--
5 Act No.
49/1991.
'PART 3A--SUPERANNUATION ORDERS
Reprint No. 7
as at
1 January
83B. Purpose of Part
2004
and
The purpose of this Part is to enable a court
amending
Act Nos
to make a superannuation order as a new
2/2002,
sentencing option where a person who is or
10 13/2003,
53/2003,
has been a public sector employee is
10/2004 and
convicted of an indictable offence involving
20/2004.
LawToday:
abuse of office, corruption or perversion of
www.dms.
the course of justice.
dpc.vic.
gov.au
83C. Application of Part
15
(1) This Part applies in respect of an offender
who is convicted of a relevant offence on or
after 3 June 2004 irrespective of whether the
relevant offence was committed before, on or
after that date.
20
(2) A court may make a superannuation order in
addition to, or instead of, any other sentence
that may be imposed under this or any other
Act.
(3) Despite section 50, the making of a
25
superannuation order under this Part is not to
be taken into account by a court in
determining whether to impose a fine on the
offender under section 49.
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83D. Definitions
(1) In this Part--
"administrators" means the person or
Victorian Legislation Parliamentary Documents
persons responsible for the
administration of a relevant
5
superannuation scheme;
"authorised person" means--
(a) the Director of Public
Prosecutions; or
(b) if the relevant offence is an
10
indictable offence tried
summarily, the Chief
Commissioner of Police;
"dependant", in relation to an offender,
means--
15
(a) a child of the offender; or
(b) any other person who in the
opinion of the court is dependent
on the offender or has a legal right
to look to the offender for
20
financial support;
"domestic partner", in relation to an
offender, means a person to whom the
offender is not married but with whom
in the opinion of the court, the offender
25
is living as a couple on a genuine
domestic basis (irrespective of gender);
"excluded public body" means--
(a) a Council within the meaning of
section 3(1) of the Local
30
Government Act 1989;
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(b) an institution listed in Schedule 1
to the Tertiary Education Act
1993 that is a body politic and is
governed by a council, some of
Victorian Legislation Parliamentary Documents
the members of which are
5
appointed by the Governor in
Council or a Minister;
"member contributions by way of salary
sacrifice" does not include employer
contributions for which the employer is
10
or has been liable and which are
included in the total remuneration
package of a public sector employee;
"member financed component" means the
total sum of--
15
(a) the amount of the superannuation
benefit or superannuation benefits
financed by member contributions
(including member contributions
by way of salary sacrifice, child
20
contributions, spouse
contributions or Government co-
contributions); and
(b) any amount or amounts financed
by the transfer of a superannuation
25
benefit from any other relevant
superannuation scheme--
as at the relevant date as determined by
the administrators of the relevant
superannuation scheme after, where
30
appropriate, obtaining advice from an
actuary appointed by the
administrators;
"offender" means a person who has been
convicted of a relevant offence;
35
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"public body" means--
(a) a body, whether corporate or
unincorporate, that is established
by or under an Act for a public
Victorian Legislation Parliamentary Documents
purpose;
5
(b) a body whose members, or a
majority of whose members, are
appointed by the Governor in
Council or a Minister;
(c) a company all the shares or a
10
majority of the shares in which are
held by the State or another public
body;
(d) a TAFE college within the
meaning of the Vocational
15
Education and Training Act
1990;
(e) a public hospital within the
meaning of the Health Services
Act 1988;
20
(f) a State funded residential care
service within the meaning of the
Health Services Act 1988;
(g) a contractor, or a sub-contractor,
within the meaning of Part 3A of
25
the Health Services Act 1988, but
only in its capacity as a provider
of health services to public
hospital patients in accordance
with an agreement under section
30
69B(1) of that Act--
but does not include an excluded public
body;
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"public sector employee" means a person
who is, or was, at the time that he or
she committed the relevant offence--
(a) employed under Part 3 or 7 of the
Victorian Legislation Parliamentary Documents
Public Sector Management and
5
Employment Act 1998;
(b) a Ministerial officer within the
meaning of section 49 of the
Public Sector Management and
Employment Act 1998;
10
(c) a Parliamentary adviser within the
meaning of section 50 of the
Public Sector Management and
Employment Act 1998;
(d) a judicial employee within the
15
meaning of section 51 of the
Public Sector Management and
Employment Act 1998;
(e) an officer of the Parliament or an
employee within the meaning of
20
the Parliamentary Officers Act
1975;
(f) an electorate officer employed
under section 26 of the
Parliamentary Officers Act
25
1975;
(g) a member of the teaching service
within the meaning of the
Teaching Service Act 1981;
(h) employed under the Education
30
Act 1958;
(i) an officer or other member of the
police force of Victoria or a police
recruit under the Police
Regulation Act 1958;
35
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(j) a police reservist appointed under
section 103 of the Police
Regulation Act 1958;
(k) a protective services officer
Victorian Legislation Parliamentary Documents
appointed under section 118B of
5
the Police Regulation Act 1958;
(l) a member of the Parliament;
(m) employed by a public body;
(n) the holder of an office established
by or under an Act to which the
10
right to appoint is vested in the
Governor in Council or a
Minister;
"relevant date" means--
(a) if the offender is a member of a
15
relevant superannuation scheme as
at the date on which the offender
is convicted of the relevant
offence, the date in relation to that
relevant superannuation scheme
20
on which the offender is convicted
of the relevant offence;
(b) if the offender has ceased to be a
member of a relevant
superannuation scheme before the
25
date on which the offender is
convicted of the relevant offence,
the date in relation to that relevant
superannuation scheme on which
the offender ceased to be a
30
member of the relevant
superannuation scheme;
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"relevant interest amount" means, where
the relevant date is not the same as the
date of conviction for the relevant
offence, the amount of interest for the
Victorian Legislation Parliamentary Documents
period commencing on the relevant
5
date and ending on the date of
conviction on the amount calculated
under paragraph (a) of the definition of
"residual employer financed
component" using the Treasury bond
10
rate for the last working day of the
previous financial year;
"relevant offence" means an indictable
offence committed by a person at the
time when the person was a public
15
sector employee;
"relevant superannuation scheme" means
any superannuation scheme of which an
offender--
(a) is a member at the date of the
20
conviction for the relevant
offence; or
(b) has been a member at any time
before that date;
"residual employer financed component"
25
means the total sum, as determined by
the administrators of the relevant
superannuation scheme after, where
appropriate, obtaining advice from an
actuary appointed by the
30
administrators, of--
(a) the value of the total
superannuation benefit as at the
relevant date after deducting--
(i) the member financed
35
component; and
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(ii) the SG component; and
(iii) the amount of any
adjustment to that
superannuation benefit in
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respect of any surcharge
5
recoverable under the
governing instrument of the
relevant superannuation
scheme; and
(b) any relevant interest amount;
10
"SG component" means the amount
determined by the administrators of a
relevant superannuation scheme after,
where appropriate, obtaining the advice
of an actuary appointed by the
15
administrators to be the amount that
would have been the minimum
employer financed amount necessary to
avoid a superannuation guarantee
shortfall within the meaning of the
20
Superannuation Guarantee
(Administration) Act 1992 of the
Commonwealth in respect of the period
during which the offender was a public
sector employee which falls within the
25
period commencing on 1 July 1992 and
ending on the relevant date;
"superannuation order" means an order
made under section 83F;
"superannuation scheme" means a scheme
30
one of the purposes of which is to
provide superannuation benefits or
pensions;
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"Treasury bond rate" means the Treasury
bond rate for the last working day of a
financial year for bonds with a 10 year
term being--
Victorian Legislation Parliamentary Documents
(a) if any Treasury bonds with that
5
term were issued on that day, the
annual yield on those Treasury
bonds; or
(b) in any other case, the annual yield
on Treasury bonds with that term
10
as published by the Reserve Bank
of Australia for that day;
"value of the total superannuation benefit
as at the relevant date" means--
(a) if the offender is a member of a
15
relevant superannuation scheme as
at the date on which the offender
is convicted of the relevant
offence, the value of the
superannuation benefit or
20
superannuation benefits as at the
date of the conviction for the
relevant offence as if the offender
had resigned or retired as at the
date of conviction as determined
25
by the administrators of the
relevant superannuation scheme
after, where appropriate, obtaining
advice from an actuary appointed
by the administrators;
30
(b) if the offender has ceased to be a
member of a relevant
superannuation scheme before the
date on which the offender is
convicted of the relevant offence,
35
the value of the superannuation
benefit or superannuation benefits
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as at the date the offender ceased
to be a member of the relevant
superannuation scheme as
determined by the administrators
Victorian Legislation Parliamentary Documents
of the relevant superannuation
5
scheme after, where appropriate,
obtaining advice from an actuary
appointed by the administrators.
(2) For the purposes of the definition of "public
body" in sub-section (1), a reference to a
10
public body specified in that definition
includes a reference to a public body
merged, associated or affiliated with,
amalgamated into, succeeding or succeeded
by that public body.
15
(3) For the purposes of the definitions of "public
body" and "public sector employee" in sub-
section (1), a reference to an Act specified in
those definitions includes a reference to any
corresponding previous enactment and to any
20
corresponding subsequent enactment.
83E. Application for a superannuation order
(1) If the authorised person is of the opinion that
the relevant offence for which a court has
convicted an offender--
25
(a) involved an abuse by the person of his
or her office as a public sector
employee; or
(b) having regard to the powers and duties
of his or her office as a public sector
30
employee was committed for a purpose
that involved corruption; or
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(c) was committed for the purpose of
perverting, or attempting to pervert, the
course of justice--
the authorised person may apply to the court
Victorian Legislation Parliamentary Documents
for the court to make a superannuation order.
5
(2) An application must be supported by a
certificate given by the administrators of
each relevant superannuation scheme
specifying--
(a) the value of the total superannuation
10
benefit as at the relevant date;
(b) the residual employer financed
component as at the relevant date;
(c) the assumptions made and factors taken
into account in determining the
15
amounts referred to in paragraphs (a)
and (b);
(d) whether or not the information
provided is based on actuarial advice;
(e) whether the administrators of the
20
superannuation scheme have been
served with--
(i) a superannuation agreement which
provides for a payment split; or
(ii) a flag lifting agreement which
25
provides for a payment split; or
(iii) a splitting order--
under Part VIIIB of the Family Law
Act 1975 of the Commonwealth and the
non-member spouse's entitlements in
30
respect of the superannuation interest in
the superannuation benefit of the
offender have not been satisfied as at
the relevant date.
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(3) A certificate referred to in sub-section (2) is
for the purposes of this Part to be taken to be
evidence of the information provided in the
certificate.
Victorian Legislation Parliamentary Documents
83F. Court may make a superannuation order
5
(1) If a court receives an application under
section 83E and is satisfied that section
83E(1)(a), 83E(1)(b) or 83E(1)(c) applies in
respect of the relevant offence, the court may
make a superannuation order if the court
10
considers that having regard, as far as is
practicable, to the matters specified in sub-
section (2) it is appropriate to do so.
(2) The matters are--
(a) the financial circumstances of the
15
offender, including any other order that
the court or any other court has made or
proposes to make--
(i) providing for the forfeiture of the
offender's property or the
20
automatic forfeiture of the
offender's property by operation
of law; or
(ii) requiring the offender to make
restitution or pay compensation;
25
(b) the nature of the burden that the making
of the superannuation order will impose
and the degree of hardship likely to
result from the making of the
superannuation order on the offender or
30
his or her spouse, domestic partner or
dependants;
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(c) whether the administrators of a relevant
superannuation scheme have been
served with--
(i) a superannuation agreement which
Victorian Legislation Parliamentary Documents
provides for a payment split; or
5
(ii) a flag lifting agreement which
provides for a payment split; or
(iii) a splitting order--
under Part VIIIB of the Family Law
Act 1975 of the Commonwealth and the
10
non-member spouse's entitlements in
respect of the superannuation interest in
the superannuation benefit of the
offender have not been satisfied as at
the relevant date;
15
(d) the length of the period of service by
the offender as a public sector
employee before the offender
committed the relevant offence;
(e) the length of any period of membership
20
of a relevant superannuation scheme
during which the offender was not a
public sector employee;
(f) the nature and gravity of the relevant
offence.
25
(3) If the court imposes a superannuation order,
the court in determining the amount to be
paid by the offender under the
superannuation order--
(a) must have regard to the matters referred
30
to in sub-section (2); and
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(b) must not determine an amount which
exceeds the total of the residual
employer financed components of the
superannuation benefits under the
Victorian Legislation Parliamentary Documents
relevant superannuation schemes.
5
83G. Effect of superannuation order
(1) A superannuation order takes effect--
(a) at the end of the appeal period in
respect of the conviction for the
relevant offence or the sentence; or
10
(b) if the offender appeals against the
conviction or sentence, subject to sub-
section (2), upon the determination of
the appeal.
(2) If the conviction is quashed on appeal, the
15
superannuation order has no effect.
(3) If as the result of the determination of an
appeal, the court determining the appeal
considers that the superannuation order
requires variation, the court may vary the
20
superannuation order.
(4) A superannuation order varied under sub-
section (3) takes effect as if it had been made
under section 83F.
83H. Provisions applying to a superannuation
25
order
Sections 53, 54, 55, 56, 59, 62, 63, 64 and 65
apply to and in respect of a superannuation
order as if the amount specified in the
superannuation order were a fine imposed
30
under section 49.
15
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83I. Powers of an authorised person to require
information
(1) If the authorised person proposes to make an
application in respect of an offender under
Victorian Legislation Parliamentary Documents
section 83E, the authorised person may
5
request the administrators of the relevant
superannuation scheme to provide any
information that the authorised person
considers is necessary for the purposes of
making the application and which is
10
information the administrators have or ought
to have access to.
(2) The administrators of the relevant
superannuation scheme must comply with a
request under sub-section (1).
15
Penalty: 10 penalty units.
(3) It is sufficient compliance with a request
under sub-section (1) if the administrators of
the relevant superannuation scheme provide
information in response to the request and
20
certify in writing that they have used their
best endeavours to provide that information
or are relying on the advice of, or
information provided by, a specified third
party.
25
83J. Protection of administrators providing
information
The administrators of a relevant
superannuation scheme are not to be taken to
be in breach of trust or to have failed to
30
comply with any provision of the governing
instrument of the superannuation scheme
only by virtue of complying with section 83I.
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s. 4
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83K. Disclosure of information
Except to the extent necessary to comply
with section 83E, an authorised person or
any person employed or engaged by an
Victorian Legislation Parliamentary Documents
authorised person must not make any use of,
5
or disclose to any person, any information
obtained under section 83I.
Penalty: 5 penalty units.'.
4. Consequential amendments
(1) In section 566 of the Crimes Act 1958, in
10
paragraph (a) of the definition of "sentence", after
"3," insert "3A,".
(2) In section 3(1) of the Magistrates' Court Act
1989, in paragraph (a) of the definition of
"sentencing order", after "3," insert "3A,".
15
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Sentencing (Superannuation Orders) Act 2004
Endnotes
Act No.
ENDNOTES
Victorian Legislation Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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