40Set off against spouse’s pension in certain circumstances

#### 40 Set off against spouse’s pension in certain circumstances (1) Where: (a) the spouse of a deceased member of the scheme who was a recipient member immediately before the member’s death is entitled to a pension under subsection 39(2); and (b) there is paid into an account with a bank an amount purporting to be an instalment of retirement pay or invalidity pay (as the case may be) payable to the member in respect of a period in respect of which a pension is payable to the spouse under subsection 39(2); and (c) the bank pays, out of that account, to the spouse an amount not exceeding the amount so paid into the account; then, in spite of any other law: (d) the bank is not liable to the Commonwealth, the personal representative of the deceased member or anyone else for any loss incurred because of the payment of that amount to the spouse; and (e) an amount equal to the amount so paid by the bank to the spouse must be set off against any amount of pension payable to the spouse under subsection 39(2). (2) In this section: > bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.