38Superannuation benefits for fixed‑term Secretaries of Departments

##### 38 Superannuation benefits for fixed‑term Secretaries of Departments (1) In this section: > pensioner means: (aa) a person to whom an invalidity pension within the meaning of the Superannuation Act 1990 is payable; or (a) a person to whom an invalidity pension within the meaning of the Superannuation Act 1976 is payable; or (b) a person to whom a pension under the Superannuation Act 1922 is payable, being a person who was retired on the ground of invalidity or of physical or mental incapacity to perform the person’s duties. > relevant person means a person other than: (a) an eligible employee within the meaning of the Superannuation Act 1976; or (ab) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or (b) a pensioner. (2) For the purposes of the Superannuation Act 1976, a person who holds a fixed‑term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being given the appointment is not, by reason only of his holding that appointment, an eligible employee within the meaning of that Act. (2A) For the purposes of the Superannuation Act 1990, a person who holds a fixed term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being appointed is not, by reason only of his or her holding that appointment, a member of the superannuation scheme established by deed under that Act. (3) The Board may: (a) at the time when a relevant person is appointed to an office of Secretary under a fixed‑term appointment within the meaning of section 37; or (b) as soon as practicable after the making of the appointment; make a determination in writing in relation to the provision to the person of superannuation benefits or benefits in the nature of superannuation benefits. (4) Without limiting the generality of subsection (3), a determination under that subsection in relation to a relevant person may provide that, if the relevant person was appointed before 1 July 1990, the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day, which may be on or after, or not earlier than 3 months before, the date of the determination, and where a determination so provides, the Superannuation Act 1976 has effect accordingly. (4A) Without limiting subsection (3), a determination under that subsection in relation to a relevant person appointed after 30 June 1990 may provide that the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day if: (a) immediately before the person was appointed, deferred benefits were applicable to him or her under the Superannuation Act 1976 or the Superannuation Act 1922; or (b) the person became, by virtue of his or her being so appointed, a re‑employed former contributor with preserved rights within the meaning of the Superannuation Act 1976; and where a determination so provides, the Superannuation Act 1976 has effect accordingly. (4B) The day specified in the determination may be on or after, or not earlier than 3 months before, the date of the determination. (4C) Without limiting subsection (3), a determination under that subsection in relation to a relevant person may provide that the Superannuation Act 1990 applies in relation to the person as if the person became a member of the superannuation scheme established by deed under that Act on a specified day if the person: (a) is appointed after 30 June 1990; and (b) is not a person to whom paragraph (4A)(a) or (b) applies; and where a determination so provides, that Act has effect accordingly. (4D) The day specified in the determination may be on or after, or not earlier than 3 months before, the date of the determination, but is not to be before 1 July 1990. (5) Notwithstanding anything in the Superannuation Act 1976 or any other Act, the Superannuation Act 1976: (a) does not apply in relation to a person who holds a fixed‑term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being given the appointment unless the application of that Act is expressly provided for, in accordance with subsection (4) or (4A), in a determination under subsection (3) in relation to the person; and (b) does not apply in relation to the person except as provided by subsection (4) or (4A). (5A) The Superannuation Act 1990 applies in relation to a person referred to in paragraph (5)(a) if the person makes a declaration and election under subsection 244(1) of the Superannuation Act 1976. (5B) If the person revokes, under section 247 of the Superannuation Act 1976, the declaration and election made under subsection 244(1) of that Act, subsection (5) applies in relation to the person as if he or she had not made the declaration and election. (5C) Subject to subsection (5A), in spite of anything in the Superannuation Act 1990 or any other Act, the Superannuation Act 1990: (a) applies in relation to a person who holds a fixed‑term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being appointed only if the application of that Act is expressly provided for in a determination under subsection (3) in relation to the person; and (b) applies in relation to the person only as provided by subsection (4C). (6) The Board is not empowered to make a determination for the purposes of subsection (3) except in accordance with arrangements approved by the Minister for Finance.