South Australia: Superannuation Act 1988 (SA)

South Australia Superannuation Act 1988 An Act to provide superannuation benefits for certain employees; and for other purposes. Contents Part 1—Preliminary 1 Short title 4 Interpretation 4A Putative spouses 4B Restriction on publication of proceedings 5 Superannuation arrangements Part 2—Administration Division 1—The Board 6 The Board 7 Functions of the Board 8 Board's membership 9 Board proceedings 10 Staff of Board 10A Delegation by the Board Division 3—The Fund 17 The Fund 19 Investment of the Fund Division 3A—Accounts 20A Contributors' accounts 20ABA Co-contribution accounts 20AB Other accounts to be kept by Board Division 3B—Payment of benefits 20B Payment of benefits Division 4—Reports 21 Reports Part 3—Contributors, contribution and contribution points 22 Entry of contributors to the scheme 23 Contribution rates 24 Contribution points 25 Attribution of additional contribution points and contribution months Part 4—Superannuation benefits—new scheme contributors 26 Application of this Part 26A Transition to retirement 27 Retirement 28 Resignation and preservation of benefits 28A Resignation pursuant to a voluntary separation package 28B Outplaced employees—55 and over 28C Outplaced employees under 55 29 Retrenchment 30 Disability pension 30A Rehabilitation etc of disability pensioner 31 Termination of employment on invalidity 32 Death of contributor 32A PSESS benefit 32B Commutation to pay deferred superannuation contributions surcharge—contributor 32C Commutation to pay deferred superannuation contributions surcharge following death of contributor 32D Withheld amount 32E Payment of Division 293 tax Part 5—Superannuation benefits—old scheme contributors Division 1—Pension benefits 33 Application of this Part 33A Transition to retirement 34 Retirement 35 Retrenchment 36 Temporary disability pension 36A Rehabilitation etc of disability pensioner 37 Invalidity 38 Death of contributor 39 Resignation and preservation of benefits 39A Resignation or retirement pursuant to a voluntary separation package 39B Outplaced employees—55 and over 39C Outplaced employees under 55 Division 2—General 40 Commutation of pension 40A Commutation to pay deferred superannuation contributions surcharge 40AB Commutation to pay Division 293 tax 40B Interaction with judicial remuneration or pension entitlements 41 Medical examination etc of invalid pensioner 42 Suspension of pension if pensioner declines appropriate employment 42A Offer of lump sum to certain invalid pensioners 43 Notional extension of period of employment 43AA Closure of contribution accounts Part 5A—Family Law Act provisions Division 1—Preliminary 43AB Purpose of Part 43AC Interpretation 43AD Value of superannuation interest 43AE Board to comply with Commonwealth requirements 43AF Effect on contributor's entitlements 43AG Benefit not payable to spouse on death of contributor if split has occurred Division 2—New scheme contributors 43AH Application of Division 43AI Accrued benefit multiple 43AJ Non-member spouse's entitlement Division 3—Old scheme contributors 43AK Application of Division 43AL Accrued benefit multiple 43AM Non-member spouse's entitlement 43AN Non-member spouse's entitlement where pension is in growth phase 43AO Non-member spouse's entitlement where pension is in payment phase 43AP Payment of non-member spouse's entitlement Division 4—Fees 43AQ Fees Part 6—Miscellaneous 43B Exclusion of benefits under awards etc 44 Review of Board's decisions 45 Effect of workers compensation etc on pension 46 Division of benefit where deceased contributor is survived by lawful and putative spouses 47 Adjustment of pensions 47A Subsequent roll over of benefits to another fund or scheme 47B Roll over of benefits from another fund or scheme 47C Portion of pension etc to be charged against contribution account etc 47D Charge against Fund if draw down benefit paid 48 Repayment of contribution account balance and minimum benefits 49 Special provision for payment in case of infancy or death 50 Pension not to be assignable 50A Unclaimed superannuation benefits 51 Liabilities may be set off against benefits 51A Method of making contributions 52 Annuities 53 Continuation of the Voluntary Savings Account 54 Power to obtain information 55 Confidentiality 56 Resolution of difficulties 58 Pensions payable in foreign currency 58A Rounding off of contributions and benefits 59 Regulations Schedule 1—Transitional provisions 1 Continuity of contributor status 2 Contributions by old scheme and certain new scheme contributors 3 Starting balance of contribution account of old scheme contributors 3A Starting balance for certain new scheme contributors 4 Special provision as to contribution period of certain contributors 5 Superannuation points carried over by old scheme contributors 6 Special provisions for contributors to the Provident Account 7 Limited benefit contributors 8 Preservation of excess unit addition 9 Neglected unit and fund share reduction 10 Pensions that commenced under previous enactments 11 Abolition of Provident Account, and Retirement Benefit Account 12 Continuation of superannuation arrangements 13 Continuation of membership of elected members of the Board 14 Retrospective operation of preservation rights 15 Benefits under Parts 4 and 5 15A Early retirement benefit for certain contributors 16 Transference from old scheme to new scheme 17 Payment of contributions while on leave without pay 18 Repeal of contribution rate 19 Operation of sections 28(1f) and 39(1db) 20 Election on retrenchment under section 29 21 Operation of amendments made by Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 Schedule 1A—Provisions relating to other public sector superannuation schemes 1 Regulations relating to other public sector superannuation schemes 2 Regulations to offset income tax etc 3 Interpretation Schedule 1B—Transfer of certain members of the Electricity Industry Superannuation Scheme to the State Scheme Part 1—Preliminary 1 Interpretation Part 2—Transfer of members 2 Transfer of existing pensioners before the relevant day 3 Transfer of existing and future pensioners after the relevant day 4 Transfer of persons entitled to preserved benefits 5 Transfer of certain other persons Part 3—General 6 Employer contributions 7 Notices 8 Cessation of entitlements under the Electricity Industry Superannuation Scheme 9 Power to obtain information 10 Transfer effective despite Electricity Corporations Act 1994 11 Regulations may be made for transitional purposes Schedule 2 Schedule 3—Administered schemes Part 1—Interpretation 1 Interpretation Part 2—Management of schemes 2 Application of Schedule to schemes 3 Arrangements as to trust deed and rules 4 Arrangements as to assets Part 3—Establishment of funds and contribution accounts Division 1—Establishment of funds 5 Management and establishment of funds 6 Division of funds into distinct parts Division 2—Contribution accounts 7 Contribution accounts Part 4—Miscellaneous 8 Insurance arrangements 9 Accounts and audit 10 Reports 11 Fees 12 Cessation of scheme 12A Unclaimed superannuation benefits 13 Stamp duty 14 Transitional provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Superannuation Act 1988. 4—Interpretation (1) In this Act, unless the contrary intention appears— active contributor means a contributor who is contributing to the Fund; actual or attributed salary—see subsections (3) and (4); actuary means a Fellow or Accredited Member of The Institute of Actuaries of Australia; adjusted salary in relation to a contributor as at a particular time means— (a) if the contributor has been employed on a full-time basis throughout his or her contribution period—the contributor's actual or attributed salary as at that time; (b) if the contributor has been employed on a part-time or casual basis over the whole or any part of his or her contribution period—the contributor's actual or attributed salary as at that time reduced to reflect the extent of the contributor's employment over the contribution period expressed as a proportion of full-time employment; age of retirement means— (a) in relation to an old scheme contributor for whom 55 years was the age of retirement under the repealed Act—55 years; (b) in all other cases—60 years; approved form means a form approved by the Board; Board means the South Australian Superannuation Board; co-contribution means a payment made to the Board in respect of a person by the Commissioner of Taxation pursuant to the requirements of the Superannuation (Government Co‑contribution for Low Income Earners) Act 2003 of the Commonwealth; co-contribution account means an account established and maintained by the Board as a co‑contribution account in accordance with the requirements of this Act; Commonwealth Act means the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; Consumer Price Index means the Consumer Price Index (All groups index for Adelaide); contracting out agreement means an agreement between a Minister or other agent or instrumentality of the Crown and another person or persons— (a) under which— (i) a function previously undertaken by the Crown is to be undertaken by the private sector; or (ii) a service previously provided by the Crown to the public, or to a section of the public or to the Crown itself, is to be provided by the private sector; and (b) under which persons who had been public sector employees employed in undertaking that function or providing that service are offered employment in the private sector; contribution month—see subsection (2a); contribution period means— (a) in relation to an old scheme contributor—a period (including a period falling wholly or partly before the commencement of this Act) over which the contributor is (or was) an active contributor; (b) in relation to a new scheme contributor—a period over which the contributor is (or was) an active contributor; contributor means a person accepted as a contributor (either under this Act or under an earlier Act) and includes such a person who has ceased making contributions unless his or her rights in relation to superannuation have been exhausted and no derivative rights exist in relation to that person under this Act (but does not include a person as a member of an administered scheme under Schedule 3); deferred superannuation contributions surcharge in relation to a contributor means the amount that the contributor is liable to pay the Commissioner of Taxation under section 15(6) of the Superannuation Contributions Tax Act; dependency in relation to a child means any period for which the child is an eligible child; Division 293 release authority means a release authority issued by the Commissioner of Taxation under Schedule 1 section 135‑10 of the Taxation Administration Act; Division 293 tax has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth; eligible child in relation to a deceased contributor means a child— (a) who is— (i) a child of the contributor; or (ii) a child in relation to whom the contributor had assumed parental responsibilities and who was cared for and maintained, wholly or in part, by the contributor up to the date of the contributor's death; and (b) who is— (i) under the age of 16 years; or (ii) between the ages of 16 and 25 years and in full-time attendance at an educational institution recognised by the Board for the purposes of this definition; employee means— (a) a statutory officer of the Crown (including a Magistrate but not a Judge); (b) a person— (i) employed in an administrative unit of the Public Service; or (ii) employed under the Education and Children's Services Act 2019 or the Technical and Further Education Act 1975; or (iii) employed by— — the Rail Commissioner; — the Commissioner of Highways; — an employer with which the Board has entered into superannuation arrangements under this Act; or (iv) employed by a Minister, or the chief executive of a Public Service administrative unit, on a weekly, daily or hourly basis; or (v) employed under the Parliament (Joint Services) Act 1985; or (vi) employed to provide services to the House of Assembly or the Legislative Council and under the control of the Speaker or the President; or (vii) employed as a member of the Governor's staff; or (viii) employed in an office or position declared by regulation to be an office or position to which this Act extends; employing authority in relation to an employee means— (a) the chief executive officer to whom the employee is answerable on matters relating to his or her employment; (b) if there is no such officer—the authority, body or person to whom the employee is answerable; entitlement day means— (a) in relation to a contributor who becomes entitled to a pecuniary benefit under this Act—the day on which that entitlement arises; (b) in relation to a contributor whose employment is terminated by his or her death—the date of the contributor's death; Fund means the South Australian Superannuation Fund; invalid pension means a pension payable on account of invalidity; invalidity means physical or mental incapacity to carry out the duties of employment; month means a period starting at the beginning of any day of 1 of the 12 named months and ending— (a) immediately before the beginning of the corresponding day of the next named month; or (b) if there is no such corresponding day, at the end of the next named month; new scheme contributor means a person accepted as a contributor on or after 31 May, 1986 (but does not include any such person who is classified by the Board as an old scheme contributor); non-monetary salary, in relation to a contributor who is not employed pursuant to a TEC contract, means remuneration in any form resulting from the sacrifice by the contributor of part of his or her salary; notional salary in relation to a contributor whose employment has ceased temporarily or permanently (including a contributor who has died) means the salary that the contributor would be receiving if he or she had continued in employment in the same position and at the same grade as were applicable immediately before the cessation of employment and, if the contributor was not in full-time employment immediately before cessation of employment, notional salary will be calculated on the basis of the contributor's average hours of employment (excluding overtime) over the last 3 years of his or her contribution period; old scheme contributor means a person who was accepted as a contributor to the Fund before 31 May, 1986 (and includes a person accepted as a contributor after that date if that person is classified as an old scheme contributor by the Board); outplaced employee means a contributor who has retired or resigned from employment to take up employment in the private sector pursuant to an offer of employment in a contracting out agreement; pensioner means a person who is entitled to a pension under this Act (including a person who qualifies for a pension but whose pension is under suspension but not including a person as a member of an administered scheme under Schedule 3); pension period means the period over which a pension is paid; preservation age has the same meaning as in Part 6 of the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; private sector employer means the employer with whom an outplaced employee takes up employment on retiring or resigning from employment in the public sector; Public Sector Employees Superannuation Scheme means the superannuation scheme of that name established pursuant to a deed of arrangement dated 27 September 1989 between the Treasurer and the secretary of the United Trades and Labor Council; putative spouse—see section 4A; registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act; repealed Act means the Superannuation Act 1974; retrench in relation to a contributor means terminate the contributor's employment on the ground that work of the kind for which the contributor is qualified and suited is no longer available for the contributor; retrenchment pension means the pension payable to an old scheme contributor on account of retrenchment; salary, in relation to a contributor who is employed pursuant to a TEC contract, means that proportion of the value of the total remuneration package specified in the contract that has been prescribed by regulation for the purposes of this definition; salary, in relation to a contributor who is not employed pursuant to a TEC contract, includes all forms of remuneration (including non‑monetary salary) except— (a) remuneration related to overtime (other than such remuneration that is paid by way of an annual allowance); (b) a leave loading; (c) a loading arising from the casual nature of the employment or the conditions under which work is performed; (d) allowances (unless declared by regulation to be a component of salary) for accommodation, travelling, subsistence or other expenses; (e) remuneration of a kind excluded by regulation from the ambit of this definition (and such a regulation may exclude remuneration of a particular kind for the purpose of calculating contributions but provide for its inclusion as a component of salary for the purpose of calculating benefits); Scheme means the scheme of superannuation established by this Act and (where the context admits) includes the scheme of superannuation established by a corresponding previous enactment (but does not include any administered scheme under Schedule 3); SIS Act means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; Southern State Superannuation Fund means the fund of that name continued in existence under the Southern State Superannuation Act 2009; special deposit account means a special deposit account established under section 8 of the Public Finance and Audit Act 1987; spouse includes a putative spouse; standard contribution rate means— (a) in relation to an old scheme contributor whose standard contribution rate is under clause 2 of Schedule 1 some rate other than 6% of salary—that other rate of contribution; (b) in all other cases—6% of salary; Superannuation Contributions Tax Act means the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 of the Commonwealth; Superannuation Funds Management Corporation of South Australia or Corporation means the Superannuation Funds Management Corporation of South Australia continued in existence by the Superannuation Funds Management Corporation of South Australia Act 1995; surcharge notice means a notice issued by the Commissioner of Taxation under section 15(7) of the Superannuation Contributions Tax Act; Taxation Administration Act means the Taxation Administration Act 1953 of the Commonwealth; TEC contract means a contract of employment between a contributor and his or her employer under which the value of the total remuneration package specified in the contract reflects the total employment cost to the employer of employing the contributor; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; Triple S scheme means the Southern State Superannuation Scheme continued in existence under the Southern State Superannuation Act 2009; unclaimed superannuation benefit means an amount of money that is taken by Part 3 of the Superannuation (Unclaimed Money and Lost Members) Act 1999 of the Commonwealth to be unclaimed money. (2) If a period is to be expressed in months for the purpose of this Act, then, except where express provision is made to the contrary, only completed months will be taken into account and any remainder will be ignored. (2a) The number of contribution months in a contribution period is calculated by multiplying the number of days in the period by 0.032854. (2b) A regulation prescribing the proportion of the value of the total remuneration package for the purposes of the first definition of salary in subsection (1)— (a) may prescribe different proportions in relation to old scheme contributors and new scheme contributors; and (b) in relation to a contributor whose salary would be less under the first definition of salary in subsection (1) than if it were determined under the second definition of salary in that subsection—may prescribe a proportion to ensure that the value of the contributor's salary for the purposes of this Act is not less than it would be if determined under the second definition of salary. (2c) For the purposes of determining the amount of salary received by a contributor who is in receipt of non‑monetary salary, the value of the non‑monetary salary will be taken to be the amount of salary sacrificed by the contributor in order to receive the non‑monetary salary. (3) Subject to this section, a contributor's actual or attributed salary, as at a particular date, is— (a) if the contributor is, at that date, employed on a full-time basis—the contributor's salary; (b) in any other case—the salary that the contributor would have been receiving, at that date, if the contributor had then been employed on a full-time basis. (4) If— (a) before the commencement of subsection (4a)— (i) there was a reduction in a contributor's rate of salary (not being a reduction resulting from disciplinary action against the contributor or a reduction in the contributor's hours of employment); and (ii) the contributor elected under this subsection to contribute as if the reduction had not occurred; and (b) after the commencement of subsection (4a), the contributor elects, in a manner approved by the Board, to have his or her contributions determined under this subsection, the contributor's contributions will be based on the salary of the position or office held by the contributor immediately before the reduction occurred or, if that position or office ceases to exist or the classification of the position or office is changed, the contributions will be based on the salary of that position or office immediately before it ceased to exist or its classification was changed, adjusted to reflect changes in the Consumer Price Index from that time and the contributor's actual or attributed salary as at a particular date will be determined as if the notional salary in respect of which the contributor was contributing at that date were the contributor's actual salary. (4a) If (whether before or after the commencement of this subsection) there has been a reduction in a contributor's rate of salary (not being a reduction resulting from disciplinary action against the contributor or a reduction in the contributor's hours of employment) and— (a) the contributor— (i) elected, before the commencement of this subsection, to contribute as if the reduction had not occurred; and (ii) has not made an election under subsection (4)(b); or (b) the contributor elects, in a manner approved by the Board, to contribute as if the reduction had not occurred, then the following provisions apply: (c) the contributor's contributions will be based on his or her notional contribution salary; (d) the contributor's actual or attributed salary as at a particular date will be determined as if his or her notional contribution salary on that date were the contributor's actual salary. (4b) For the purposes of subsection (4a), a contributor's notional contribution salary is— (a) the salary of the position or office held by the contributor immediately before the reduction occurred; or (b) if that position or office ceases to exist or the classification of the position or office is changed—the salary of that position or office immediately before it ceased to exist or its classification was changed (adjusted if any increase occurs in the rate of salary payable in respect of the contributor's position or office by a percentage equal to the percentage that the increase bears to that salary). (4c) The fixing of a contributor's contributions in relation to a financial year under section 23(4)(a) following a reduction in a contributor's rate of salary will be based on the contributor's notional contribution salary pursuant to an election under subsection (4a) only if the contributor made the election under that subsection on or before the 31 March last preceding the commencement of the financial year. (5) If it is necessary to calculate what would have been the amount standing to the credit of a contributor's contribution account, as at a particular time and the contributor had contributed at the standard contribution rate throughout his or her contribution period, the calculation may be made as follows: Where— A is the amount B is the actual credit of the contribution account at the relevant time C is the number of months in the contribution period P is— (a) in the case of a contributor who was in full-time employment throughout his or her contribution period—1; (b) in any other case—the numerical value arrived at by expressing the contributor's employment during his or her contribution period as a proportion of full-time employment during that period D is the number of the contributor's contribution points. (6) References in this Act to resignation from, or termination of, employment will be read subject to the following qualifications— (a) resignation from a particular position in order to take up some other position in employment to which this Act applies, or to take up employment in the same position but on a different basis, will be ignored unless there is an interval of more than 1 month between the time the resignation takes effect and the commencement of the new employment; (b) if a person is employed in employment to which this Act applies for a particular term and the term expires, the person will be taken to have resigned— (i) if he or she makes an election under this subparagraph—at the expiration of the term; or (ii) if no election is made under subparagraph (i)—at the expiration of 12 months from the expiration of the term except where the person is re-employed in employment to which this Act applies (not being employment on a casual basis) before that time in which case any interruption of employment will be ignored; (c) a person whose employment is terminated on the ground of incompetence will be taken to have retired or resigned from employment depending on whether he or she has then reached the age of 55 years. (7) A person referred to in subsection (6)(b) cannot make contributions under this Act in respect of a period before he or she is taken to have resigned under that subsection and during which he or she is not employed in employment to which this Act applies. (8) For the purposes of this Act a contributor who is on leave without pay is not an active contributor if a contribution payable by the contributor has remained unpaid for 14 days or more. (9) Subsection (8) does not apply if the contributor did not know, and could not reasonably have been expected to know, that the contribution had remained unpaid for 14 days. (10) For the purposes of subsections (8) and (9), contributions become payable at the times at which salary would have been payable to the contributor if he or she had not been on leave without pay. 4A—Putative spouses (1) For the purposes of this Act, a person is, on a certain date, the putative spouse of another person if— (a) the person is, on that date, cohabiting with the other person as that person's de facto spouse and— (i) the person— (A) has been so cohabiting with the other person continuously for the preceding period of 3 years; or (B) has during the preceding period of 4 years so cohabited with the other person for periods aggregating not less than 3 years; or (ii) a child, of whom both persons are the parents, has been born (whether or not the child is still living); or (c) the person is, on that date, in a registered relationship with the other person. (2) Subject to subsection (2a), a person whose rights depend on whether— (a) the person and another person; or (b) 2 other persons, were, on a certain date, putative spouses 1 of the other may apply to the Tribunal for a determination under this section. (2a) A person whose rights depend on whether— (a) the person and another person; or (b) 2 other persons, were, on a certain date, in a registered relationship may provide evidence that they or those persons, were, on that date, in the registered relationship by producing a certificate issued by the Registrar of Births, Deaths and Marriages under section 21 of the Relationships Register Act 2016. (3) If it is proved to the satisfaction of the Tribunal that the persons in relation to whom the determination under this section is sought did, on the date in question, fulfil the requirements of subsection (1), the Tribunal must make a determination accordingly. (4) A determination may be made under this section— (a) whether or not 1 or both of the persons in relation to whom the determination is sought are, or have ever been, domiciled in this State; or (b) despite the fact that 1 or both of them are dead. (5) It must not be inferred from the fact that the Tribunal has determined that 2 persons were putative spouses 1 of the other, on a certain date, that they were putative spouses as at any prior or subsequent date. 4B—Restriction on publication of proceedings (1) Protected information is information relating to an application under section 4A (including images) that identifies, or may lead to the identification of— (a) an applicant; or (b) a person who is related to, or associated with, an applicant or is, or is alleged to be, in any other way connected in the matter to which the proceedings relate; or (c) a witness to the hearing of the application. (2) A person who publishes protected information is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. (3) A person who discloses protected information knowing that, in consequence of the disclosure, the information will, or is likely to, be published is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. (4) This section does not apply to— (a) the publication or disclosure of material— (i) by a court or the Tribunal or an employee of the Courts Administration Authority, provided that such publication or disclosure is made in connection with the administrative functions of the court or Tribunal; or (ii) for purposes associated with the administration of this Act; or (b) the publication in printed or electronic form of material that— (i) consists solely or primarily of the reported judgements or decisions of a court or the Tribunal; or (ii) is of a technical nature designed primarily for use by legal practitioners. (5) In this section— newspaper means a newspaper, journal, magazine or other publication that is published at periodic intervals; publish means publish by newspaper, radio or television, or on the internet, or by some other similar means of communication to the public. 5—Superannuation arrangements (1) Subject to subsection (2), the Board may enter into arrangements with— (a) an instrumentality or agency of the Crown; or (b) a prescribed authority, body or person, under which the employees of that instrumentality, agency, authority, body or person become eligible to apply to be accepted as contributors. (1a) An arrangement under subsection (1) may modify the provisions of this Act in their application to, or in relation to, employees to which the arrangement relates but not so as to put those employees in a more advantageous position than other contributors. (1b) An arrangement may be varied at any time by agreement between the Board and the instrumentality, agency, authority, body or person. (2) An arrangement under subsection (1) is not effective unless its terms are approved by the Minister. (2a) If an instrumentality or agency of the Crown that has entered into an arrangement with the Board under this section ceases to be an instrumentality or agency of the Crown, the Minister may by written notice to the Board and to the former instrumentality or agency of not less than 1 month— (a) declare that benefits will cease accruing to contributors in respect of their employment with the former instrumentality or agency; and (b) vary the terms of the arrangement in such manner as he or she thinks fit. (3) Subject to subsection (4), an instrumentality or agency of the Crown or an authority, body or person who has entered into an arrangement with the Board under this section (whether before or after the commencement of the Superannuation (Scheme Revision) Amendment Act 1992) may, by written notice to the Board of not less than 1 month, declare that benefits will cease accruing to contributors in respect of employment with the instrumentality, agency, authority, body or person. (4) A declaration cannot be made under subsection (3)— (a) without the approval in writing of a majority of those persons who— (i) are contributors by virtue of the arrangement; and (ii) are currently employed by the instrumentality, agency, authority, body or person; and (b) unless the Board has given its approval to the declaration. (5) Before giving its approval under subsection (4)(b), the Board must have obtained from an actuary an actuarial assessment of the account (if any) established to meet the employer component of benefits that have accrued to employees of the instrumentality, agency, authority, body or person under this Act. (6) When giving its approval under subsection (4)(b), the Board must be satisfied on the basis of the actuary's assessment that the amount standing to the credit of the account will be sufficient to meet the employer component of benefits. (7) The following provisions apply on the cessation of the accrual of benefits under subsection (2a) or (3): (a) those contributors currently employed by the instrumentality, agency, authority, body or person who are of or over the age of 60 years will be taken for the purposes of this Act to have retired from employment; and (b) those contributors currently employed by the instrumentality, agency, authority, body or person who have not reached the age of 60 years will be taken for the purposes of this Act to have resigned from employment; and (c) section 28 or 39 (as the case requires) applies to and in relation to a contributor referred to in paragraph (b) despite the fact that he or she is of or over the age of 55 years; and (d) a contributor referred to in paragraph (b) who has elected to preserve his or her benefits is not entitled to them (except on account of incapacity) until— (i) he or she has reached the age of 55 years and has ceased to be employed by the instrumentality, agency, authority, body or person; or (ii) he or she has reached the age of 60 years. Part 2—Administration Division 1—The Board 6—The Board (1) The Board continues in existence. (2) The Board is a body corporate. (3) The Board has full juristic capacity to exercise powers that are by their nature capable of being exercised by a body corporate. (4) If a document appears to bear the common seal of the Board, it will be presumed, in the absence of proof to the contrary, that the document was duly executed by the Board. 7—Functions of the Board (1) The Board is responsible to the Minister for all aspects of the administration of this Act except the management and investment of the Fund. 8—Board's membership (1) The Board consists of the following members: (a) a presiding member (who must not be an employee) appointed by the Governor; and (b) 2 members elected by— (i) the contributors; and (ii) the members and spouse members of the Triple S scheme; and (iii) persons provided with investment services or other products or services pursuant to regulations under section 30(2)(g) of the Southern State Superannuation Act 2009; and (c) 2 members appointed by the Governor on the Minister's nomination. (2) A person who is employed in duties connected with the administration of this Act or the Southern State Superannuation Act 2009 is not eligible to be elected as a member of the Board. (3) The Governor may appoint a deputy to a member of the Board and the deputy may, in the absence or during a temporary vacancy in the office of that member, act as a member of the Board. (4) Subject to subsection (5), a member of the Board will be appointed or elected for a term not exceeding 3 years. (5) A member appointed or elected to fill a casual vacancy will be appointed or elected for the balance of the term of his or her predecessor. (6) The office of a member of the Board becomes vacant if the member— (a) dies; or (b) completes a term of office and is not reappointed or re-elected; or (c) resigns by written notice to the Minister; or (d) is removed from office by the Governor on the ground of— (i) mental or physical incapacity to carry out official duties satisfactorily; or (ii) neglect of duty; or (iii) misconduct. (7) If the office of an elected member becomes vacant and the balance of the term of the office is 12 months or less, the Governor may appoint to the vacant office a person nominated by the Public Service Association of South Australia Incorporated and the Australian Education Union (S.A. Branch). 9—Board proceedings (1) A meeting will be chaired by the presiding member or, in his or her absence, by a member chosen by those present. (2) Subject to subsection (3), the Board may act despite vacancies in its membership. (3) 3 members constitute a quorum for a meeting of the Board. (4) A decision in which a majority of the members present at a meeting concur is a decision of the Board. (4a) A conference by telephone or other electronic means between members of the Board will, for the purposes of this section, be taken to be a meeting of the Board at which the participating members are present if— (a) notice of the conference is given to all members in the manner determined by the Board for that purpose; and (b) each participating member is capable of communicating with every other participating member during the conference. (4b) A proposed resolution of the Board becomes a valid decision of the Board despite the fact that it is not voted on at a meeting of the Board if— (a) notice of the proposed resolution is given to all members in accordance with procedures determined by the Board; and (b) a majority of the members express concurrence in the proposed resolution by letter, telegram, telex, fax, email or other written communication setting out the terms of the resolution. (5) Subject to this Act, the Board may determine its own procedures. (6) The Board must keep minutes of its proceedings. 10—Staff of Board (1) The Board may, with the Minister's approval, appoint staff to assist it in carrying out its responsibilities under this or any other Act. (2) A person appointed under subsection (1) is not a Public Service employee. (3) The Board may, with the approval of a Minister responsible for a particular administrative unit of the Public Service, make use of the staff or facilities of that administrative unit. (4) A person appointed under subsection (1) may assist in the administration of other superannuation schemes or funds established or administered by the Board, or otherwise assist the Board in the performance or exercise of any other functions or powers. (5) Without limiting subsection (4), a person appointed under subsection (1) may also assist in the administration of other superannuation schemes established for the benefit of members or former members of the Parliament of the State or the South Australian public sector. (6) The Board is declared not to be a national system employer for the purposes of the Fair Work Act 2009 of the Commonwealth. 10A—Delegation by the Board (1) The Board may delegate any of the Board's powers or functions under this Act (except this power of delegation) to any person or body. (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be conditional or unconditional; and (c) does not derogate from the power of the Board to act in any matter; and (d) is revocable at will by the Board. Division 3—The Fund 17—The Fund (1) The Fund continues in existence. (2) The assets of the Fund belong (both at law and in equity) to the Crown. (3) The Fund is subject to the management and control of the Superannuation Funds Management Corporation of South Australia. (4) The Treasurer must pay into the Fund periodic contributions reflecting— (a) the contributions paid to the Treasurer by contributors; and (b) any co-contribution paid to the Board on behalf of a contributor (but received by the Treasurer on behalf of the Board), with respect to the relevant period. (5) All interest and accretions arising from investment of the Fund must be paid into the Fund. (6) The Fund will be treated as made up of 3 major divisions— (a) 1 proportioned to— (i) the aggregate balance, as at a date determined by the Board, of contribution accounts maintained in the names of old scheme contributors; (ii) the amount, as at the date referred to in subparagraph (i), that represents income of the Fund referable to old scheme contributors that is not reflected in contribution accounts; (iii) the amount, as at the date referred to in subparagraph (i), that is referable to contributions of old scheme contributors whose contribution accounts have been closed; (iv) subsequent contributions and payments referable to old scheme contributors; (v) subsequent income of the Fund attributable to investment of this division of the Fund; (b) 1 proportioned to— (i) the aggregate balance, as at the date referred to in paragraph (a)(i), of contribution accounts maintained in the names of new scheme contributors; and (ii) subsequent contributions and payments referable to new scheme contributors; and (iii) subsequent income of the Fund attributable to investment of this division of the Fund; (c) 1 proportioned to the aggregate balance of co‑contribution accounts to the extent that they hold the amount of any co‑contributions that have been paid to the Board. (7) The following amounts will be paid from the Fund: (a) administrative costs and other expenses related to the management and investment of the Fund; (b) the prescribed percentage of the other costs of administering this Act; (c) any reimbursement of the Consolidated Account or a special deposit account that the Treasurer charges against the Fund under this Act. (8) The Superannuation Funds Management Corporation of South Australia must determine the value of each division of the Fund as at the end of each financial year. 19—Investment of the Fund (1) The Fund will be invested in a manner determined by the Superannuation Funds Management Corporation of South Australia. (2) The Corporation may enter into transactions affecting the Fund— (a) for the purpose of investment; or (b) for purposes incidental, ancillary or otherwise related to investment. Division 3A—Accounts 20A—Contributors' accounts (1) The Board will maintain accounts in the names of all contributors and each account will state whether the contributor is an old scheme contributor or a new scheme contributor. (2) A contributor's account must be debited with any payment that is, under this Act, to be charged against that account. (3) At the end of each financial year, each contributor's account that has a credit balance will be varied— (a) if the account is in the name of an old scheme contributor—to reflect a rate of return determined by the Board in relation to the contribution accounts of old scheme contributors for the relevant financial year; (b) if the account is in the name of a new scheme contributor—to reflect a rate of return determined by the Board in relation to the contribution accounts of new scheme contributors for the relevant financial year. (4) In determining a rate of return for the purposes of subsection (3), the Board should have regard to— (a) the net rate of return achieved by investment of the relevant division of the Fund over the financial year or, if a new scheme contributor has made a nomination under subsection (4a), the net rate of return achieved by the class of investments, or the combination of classes of investments, nominated by the contributor; and (b) the desirability of reducing undue fluctuations in the rate of return on contributors' accounts. (4a) If the Fund is invested in different classes of investments, the Board may, with the agreement of the Superannuation Funds Management Corporation of South Australia, permit new scheme contributors, on such terms and conditions as it thinks fit, to nominate the class of investments, or the combination of classes of investments, for the purpose of determining the rate of return under this section. (4b) If a contributor, after nominating a class of investments under subsection (4a), subsequently varies the nominated class of investments, the Board may charge a fee (to be fixed by the Board) to the contributor's contribution account in a manner determined by the Board. (5) If, in accordance with subsection (4)(b), the Board determines a rate of return that is at variance with the net rate of return achieved by investment of the relevant division of the Fund, the Board must include its reasons for the determination in its report for the relevant financial year. (6) If it is necessary to determine the balance of a contributor's account and the Board has not yet determined a rate of return in relation to the relevant financial year, the balance will be determined by applying a percentage rate of return on accounts estimated by the Board. (6a) A balance determined under subsection (6) will not be adjusted when a rate of return is subsequently determined under subsection (3). (7) A reference in this section to rate of return is a reference to a positive or a negative rate of return. 20ABA—Co-contribution accounts The Board must— (a) establish a co-contribution account in the name of a contributor in respect of whom a co‑contribution has been paid to the Board; and (b) credit the account with the amount of any co‑contribution paid to the Board in respect of the member; and (c) immediately on a co‑contribution account being credited with the amount of a co‑contribution—transfer the amount to a co‑contribution account maintained by the Board in the name of the contributor in the Southern State Superannuation Fund; and (d) advise the contributor in writing that— (i) the co-contribution has been transferred to the Southern State Superannuation Fund; and (ii) the contributor is, by virtue of the Southern State Superannuation Act 2009, a member of the Triple S scheme. 20AB—Other accounts to be kept by Board (1) The Board must keep proper accounts of receipts and payments relating to the payment of benefits under this Act. (2) The Auditor-General may at any time, and must at least once in each year, audit the accounts kept by the Board under subsection (1). Division 3B—Payment of benefits 20B—Payment of benefits (1) A benefit or other entitlement payable under this Act must be paid out of the Consolidated Account (which is appropriated to the necessary extent) or out of a special deposit account established by the Treasurer for the purpose. (2) If any such payment, or a proportion of any such payment, is, under this Act, to be charged against the contributor's contribution account or against the Fund, the Treasurer may reimburse the Consolidated Account or special deposit account by charging the relevant division of the Fund with the amount of that payment or the relevant proportion of that payment (as the case requires). (3) If any such payment, or a proportion of any such payment, relates to a rollover account or a co‑contribution account, an amount equal to the amount of the payment is to be charged against the appropriate account and the Treasurer may reimburse the Consolidated Account or special deposit account by charging the relevant division of the Fund with the amount of that payment or the relevant proportion of that payment (as the case requires). (4) This section does not apply in relation to an administered scheme under Schedule 3. Division 4—Reports 21—Reports (1) The Board must, on or before 31 October in each year submit a report to the Minister on the operation of this Act during the financial year ending on 30 June in that year. (4) The Minister must, in relation to the triennium ending 30 June 1992, and thereafter in relation to each succeeding triennium, obtain a report within 12 months after the end of the relevant triennium— (a) on the cost of the Scheme to the Government at the time of the report and in the foreseeable future; and (b) estimating the proportion of future benefits under Part 5 that can be met from the Fund. (4a) A report under subsection (4) must be prepared by an actuary, not being a member of the Board, appointed by the Minister. (5) The Minister must, within 6 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament. Part 3—Contributors, contribution and contribution points 22—Entry of contributors to the scheme (1) The Board may, on the application of an employee, accept the employee as a contributor. (2) An application can only be made in a manner approved by the Board. (3) The Board may require an applicant to provide satisfactory evidence of the state of the applicant's health. (4) The cost of any medical examination to which an applicant is required to submit under subsection (3) will be paid by the Board. (5) If it appears to the Board— (a) that an applicant's state of health is such as to create a risk of invalidity or premature death; or (b) that an applicant has in the past engaged in an activity of a prescribed kind that increases the risk of invalidity or premature death; or (c) that the applicant is likely in the future to engage in an activity of a kind referred to in paragraph (b), the Board may accept the application on conditions (being conditions authorised by the regulations) limiting the benefits payable under this Act in the event of the contributor's invalidity or death before the age of 55 years (and such a condition prevails over this Act to the extent of any inconsistency). (5a) Unless conditions referred to in subsection (5) provide otherwise, a contributor whose benefits in the event of invalidity or death are limited by conditions under that subsection or by conditions referred to in clause 7 of Schedule 1 is not entitled to a disability pension under Part 4 or 5 in respect of the illness, condition or disability to which the limitations relate during the period of 5 years from the commencement of this Act or the contributor's acceptance into the Scheme whichever is the later. (6) If an applicant— (a) is a contributor to some other superannuation scheme funded wholly or in part by the applicant's employer; or (b) receives an allowance or salary loading related to superannuation, the Board will, unless there is good reason to the contrary, reject the application. (7) The Board cannot accept an application from a person who is employed on a casual basis. (8) If it appears to the Board that a contributor withheld information required in relation to his or her application for membership of the Scheme, the Board may withhold or reduce a benefit under this Act (other than one that is to be charged against the contributor's contribution account). (9) The contribution period of an employee accepted as a contributor will commence on the date fixed for that purpose by the Board. (10) Subject to this section, an application for acceptance as a contributor under subsection (1) must be made on or before 3 May 1994. (11) A person who commenced employment to which this Act applies on or after 3 February 1994 pursuant to a written offer received by the person on or before 3 May 1994 may make an application for acceptance as a contributor under subsection (1) on or before 3 August 1994 or the expiration of 3 months after the employment commenced whichever is the later. (12) An application under subsection (1) will be taken to have been made on the day on which the application was received by the Board. (13) An employee who is not a person referred to in subsection (11) may apply for acceptance as a contributor under subsection (1) on or after 4 May 1994 and before 1 July 1995 but if accepted the contributor will— (a) be a member of the Triple S scheme on and from 1 July 1995 and will be taken to have elected to contribute to that scheme at the rate of 6 per cent of salary; and (b) will be taken to be under the age of 55 years and to resign from employment for the purposes of this Act on 30 June 1995 and to carry over the employee component of his or her accrued superannuation benefits on 1 July 1995 to his or her member's contribution account under the Triple S scheme and to carry over the employer component of those benefits on 1 July 1995 to his or her employer contribution account under that scheme. (14) An employee may make an application for acceptance as a contributor under subsection (1) on or after 4 May 1994 if he or she— (a) had been a member of the Police superannuation scheme; and (b) had resigned or retired from the employment that entitled him or her to membership of that scheme in order to take up employment to which this Act applies; and (c) had taken up that employment within 3 months after resignation or retirement from the previous employment; and (d) in the case of resignation from the previous employment, had preserved his or her benefits under the Police superannuation scheme. (15) Subject to subsection (16), the application referred to in subsection (14) must be made within 3 months after the employee commences employment to which this Act applies. (16) An employee referred to in subsection (14) who commenced employment to which this Act applies during the period commencing on 3 February 1994 and ending on the commencement of the Superannuation (Employee Mobility) Amendment Act 1997 may make an application for acceptance as a contributor under subsection (1) within 3 months after the commencement of that Act. (17) The Board may not refuse an application by an employee referred to in subsection (14) on medical grounds and the only conditions that the Board may place on its acceptance of such an application are those conditions (if any) to which the employee's membership of the Police superannuation scheme had been subject immediately before his or her retirement or resignation from the previous employment. (18) An employee referred to in subsection (14) who is accepted as a contributor under subsection (1) is only entitled to his or her benefits under the Police superannuation scheme after his or her employment to which this Act applies has terminated. (19) In this section— Police superannuation scheme means the old or new scheme of superannuation established by the Police Superannuation Act 1990. 23—Contribution rates (1) Subject to this section, a contributor will make contributions to the Treasurer at the standard contribution rate until termination of the contributor's employment. (2) Subject to subsection (2a), a contributor may elect— (a) to contribute at any 1 of the following rates: 3.0% 4.5% 6.0% 7.5% 9.0%; (b) to cease contributing; (c) in the case of a contributor whose standard contribution rate is not 6%—to contribute at the contributor's standard contribution rate. (2a) A contributor who is employed pursuant to a TEC contract must contribute at the contributor's standard contribution rate or at a higher rate referred to in subsection (2) unless he or she was contributing at a lower rate during the financial year in which the term of the contract commenced in which event he or she must contribute at that rate or a higher rate referred to in subsection (2). (2b) Subsection (2a) operates in relation to the financial year following the financial year in which section 5A of the Superannuation (Miscellaneous) Amendment Act 2000 comes into operation and in relation to subsequent financial years. (3) Subject to subsection (3a), an election under subsection (2) can only be made in a manner approved by the Board and will operate as from the commencement of a financial year (and only elections received by the Board 2 months or more before the commencement of a particular financial year will operate in relation to that financial year). (3a) If the Board is satisfied that a contributor needs to reduce his or her contributions because of financial hardship, the Board may permit the contributor to make an election under subsection (2) that will operate before the commencement of the next financial year. (4) A contributor's contributions will be fixed in relation to each financial year, as from a day in that financial year determined by the Board— (a) on the basis of the contributor's salary as at the 31st day of March last preceding the commencement of the financial year or, if the contributor's hours of employment have increased or decreased between that date and the commencement of the financial year, on the basis of the contributor's salary following the last such increase or decrease in the hours of employment; but (b) — (i) if the contributor had not then commenced his or her employment, the contributions will be fixed on the basis of the contributor's commencing salary; (ii) if the contributor was then on leave without pay or at a reduced rate of pay, the contributions will be fixed on the basis of the salary that the contributor would then have been receiving if not on leave; (iii) if the contributor's employment is of a casual nature, the contributions will be fixed on the basis of a notional salary fixed by the Board in relation to the contributor; (iv) if after the date on which contributions for a particular financial year are fixed there is a reduction in the contributor's salary resulting from a reduction in hours of work (other than a temporary reduction of less than 2 weeks' duration), there will be a proportionate reduction in the contributor's contributions (but such a contributor may, with the Board's approval, elect to contribute as if there had been no reduction in salary and in that event benefits payable under this Act will be calculated as if there had been no reduction of salary); (v) if the reason for the reduction in hours of work is an illness or injury suffered by the contributor, an election under subparagraph (iv) may, with the Board's approval, operate during subsequent years despite paragraph (a). (5) If over a particular period a contributor receives (while remaining in employment) weekly workers compensation payments for total or partial incapacity for work, contributions will be payable as if the weekly payments were salary or a component of salary (as the case requires) but if the aggregate of the weekly payments and the salary (if any) of the contributor is less than the salary that the contributor would have received if not incapacitated, the Board may allow a proportionate reduction in the amount of the contributions for that period. (6) The following provisions apply to leave without pay— (a) any period of leave without pay of 2 weeks or less will be treated as a period of employment in respect of which contributions are payable; (b) if leave without pay is taken for a continuous period exceeding 2 weeks, no contribution is payable in respect of that period unless the contributor elects to contribute and the election is approved by the Board (but such an election in respect of more than 12 months' leave without pay can only be made— (i) if the Board is satisfied with arrangements that have been made for reimbursement of the cost of benefits attributable to that period; and (ii) in circumstances in which the approval is authorised by the regulations). (6a) If a contributor has been, or will be, on leave for more than 12 months and the period of leave is, or will be, made up of 2 or more components of leave without pay connected by 1 or more components of paid leave, an election under subsection (6)(b) in relation to a component of that period that will extend it beyond 12 months or that commences after the first 12 months of the period has passed must comply with the requirements of that subsection even though the component itself is less than 12 months in duration. (7) An old scheme contributor will cease to contribute if— (a) before termination of the contributor's employment the following conditions are satisfied: (i) in the case of a person who was accepted as a contributor under the repealed Act—the contributor is of or above the age of retirement and has— (A) an aggregate of 360 contribution points; or (B) an aggregate number of contribution points equal to the number of months between the date on which he or she became a contributor and the date on which he or she reached the age of retirement, whichever is the greater number; (ii) in the case of a person who was accepted as a contributor before the commencement of the repealed Act—the contributor is of or above the age of retirement and has an aggregate of 360 contribution points; or (b) on retirement he or she would be entitled to the maximum pension prescribed by section 34(5). 24—Contribution points (1) A contributor conforms to the theoretical standard if the contributor— (a) is employed on a full-time basis; and (b) contributes at the standard rate of contribution. (2) Contribution points accrue to a contributor who conforms to the theoretical standard at the rate of 1 point for each contribution month. (3) Subject to subsection (5), if a contributor does not conform to the theoretical standard, a proportion of 1 contribution point (which may exceed unity) accrues to the contributor in respect of a contribution month equal to the proportion that the amount actually contributed in respect of that month bears to the amount that would have been contributed if the contributor had conformed to the theoretical standard. (4) A contributor's extrapolated contribution points as at an entitlement day are calculated as follows: (a) if the contributor has then reached the age of retirement—the number is, subject to subsection (5), the aggregate of the accrued contribution points; (b) in any other case— (i) if the contributor has been in full-time employment throughout the contribution period—the number is, subject to subsection (5), the aggregate of the accrued contribution points plus a number equal to the number of months' difference between the contributor's age as at the entitlement day and the age of retirement (an incomplete month being counted as a whole month); (ii) if the contributor has not been in full-time employment throughout the contribution period—the number is, subject to subsection (5), the aggregate of the accrued contribution points plus the relevant proportion of the number of months' difference between the contributor's age as at the entitlement day and the age of retirement (an incomplete month being counted as a whole month). (5) When the aggregate of a contributor's accrued contribution points are to be calculated as at an entitlement day, the aggregate cannot exceed— (a) in the case of a contributor who was in full-time employment throughout the contribution period—the number of months of the contribution period; (b) in any other case—the relevant proportion of the number of months of the contribution period. (6) The reference in subsections (4) and (5) to the relevant proportion is a reference to a proportion arrived at by expressing the contributor's employment while an active contributor as a proportion of full-time employment. 25—Attribution of additional contribution points and contribution months (1) The Minister may, in appropriate cases— (a) attribute additional contribution points to a contributor; (b) attribute additional contribution months to a contributor. (2) The Minister must provide the Board with details of the attribution of contribution points or months under subsection (1) and the Board must include those details in its report to the Minister under Division 4 of Part 2. Part 4—Superannuation benefits—new scheme contributors 26—Application of this Part T