Public Sector Superannuation Reform Act 2016 (Tas)

Public Sector Superannuation Reform Act 2016 An Act to reform the administration of public sector superannuation, to repeal certain enactments relating to public sector superannuation, and for related purposes [Royal Assent 17 June 2016] Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Public Sector Superannuation Reform Act 2016 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation (1) In this Act – Actuary means the person or organisation appointed to be the Actuary under section 50(1) ; Agency means – (a) a State Service Agency; and (b) a statutory authority, or other organisation, that is not a State Service Agency or a Government Business Enterprise and that is prescribed in regulations for the purposes of this paragraph; and (c) a State-owned company; and (ca) a Government Business Enterprise; and (d) a body or person carrying on an industry or undertaking for or on behalf of the State, unless the body or person is, under the regulations, exempt from the application of this Act; and (e) a House of Parliament; and (f) a seconding employer; and (g) the Office of the Governor; and (h) the Legislature-General; and (i) the State Fire Commission; and (j) Ambulance Tasmania; Agency manager means, in relation to an Agency that is – (a) a State Service Agency – the Head of the State Service Agency; or (b) a Government Business Enterprise – a chief executive officer within the meaning of the Government Business Enterprises Act 1995 ; or (c) a statutory authority, or other organisation, that is not a State Service Agency or a Government Business Enterprise and that is prescribed for the purposes of paragraph (b) of the definition of Agency – the controlling authority of the statutory authority or organisation; or (d) a State-owned company – a chief executive officer, by whatever name called, of the State-owned company; or (e) a body or person carrying on an industry or undertaking for or on behalf of the State – the controlling authority of the body or person; or (f) a House of Parliament – the Speaker of the House of Assembly in Tasmania and the President of the Legislative Council in Tasmania; or (g) a seconding employer – a chief executive officer, by whatever name called, of the seconding employer; or (h) the Office of the Governor – the Official Secretary; or (i) the Legislature-General – the Speaker of the House of Assembly in Tasmania and the President of the Legislative Council in Tasmania; or (j) the State Fire Commission – the Chief Officer of the State Fire Commission; or (k) Ambulance Tasmania – the Commission of Ambulance Services; Ambulance member means a person appointed or employed under the State Service Act 2000 to perform functions for the purposes of the Ambulance Service Act 1982 ; amending Act means the Public Sector Superannuation Reform Amendment Act 2019 ; Board means the Retirement Benefits Fund Board continued in existence by section 7 of the Retirement Benefits Act 1993 ; chairperson of the Commission means the person appointed to be the chairperson of the Commission under section 7(3) ; Commission means the Commission established under section 6 ; complying superannuation scheme means a superannuation scheme that is a complying superannuation fund for the purposes of the SIS Act; contributory scheme means the superannuation arrangements to which the regulations relate; default fund means a superannuation fund that is nominated under section 20(1) to be a default fund; employee means a person who is employed in any position or capacity as a State Service officer or State Service employee or by an Agency and includes – (a) a police officer, trainee and junior constable as defined in the Police Service Act 2003 ; and (b) a Fire Service member who is first appointed or employed on or after 1 July 2005; and (c) a Fire Service member appointed before 1 July 2005 who is not a member of the superannuation scheme continued by the Trust Deed in force under section 4 of the Retirement Benefits (State Fire Commission Superannuation Scheme) Act 2005; and (d) an Ambulance member who is first appointed or employed on or after 30 June 2006; and (e) an Ambulance member appointed before 30 June 2006 who is not a member of the superannuation scheme continued by the Trust Deed in force under section 4 of the Retirement Benefits (Tasmanian Ambulance Service Superannuation Scheme) Act 2006 ; and (f) a member of a board; and (g) a person who holds an office under a provision of an Act that specifies that the holder of the office is an employee for the purposes of this Act; Fire Service member means a person appointed or employed under the State Service Act 2000 to perform functions for the purposes of the Fire Service Act 1979 ; functions includes duties; Fund means the Retirement Benefits Fund continued in existence under section 27 and includes all money received by the Commission and all subfunds, accounts, investments, policies of insurance and other assets in which that money is from time to time invested; Government Business Enterprise means a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 ; House of Parliament means either the House of Assembly or the Legislative Council; initial default fund means the first superannuation fund that is nominated under section 20(1) to be a default fund; Investment 12 Account member means – (a) a person who is declared under subsection (2) to be an Investment 12 Account member; and (b) a person who is within a class of members declared under subsection (2) to be Investment 12 Account members; member of a board means a member of a board of a statutory authority or State-owned company and includes – (a) in relation to a statutory authority –any chief executive officer, by whatever name called, chairperson, president, director, deputy, member, or alternate, substitute or acting member, of the board, or the governing body, of the statutory authority; and (b) in relation to a State-owned company – a director of the State-owned company – but does not include a chief executive officer, by whatever name called, of a statutory authority or State-owned company who, under the terms of his or her employment, is required to act as a member of the board of that statutory authority or State-owned company; member of the Commission means a member of the Commission under section 7 ; regulations means regulations made under this Act; RSA means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; salary, in relation to an employee, has the meaning it has in section 4 ; seconding employer means – (a) an agency or authority of the Commonwealth or of another State or a Territory; or (b) a private sector employer, whether incorporated or not – which employs an employee in accordance with a secondment agreement; SIS Act means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; State-owned company means a company incorporated under the Corporations Act which is controlled by – (a) the Crown; or (b) a statutory authority; or (c) another company which is itself controlled by the Crown or a statutory authority; statutory authority means a body or authority, whether incorporated or not, which is – (a) established or constituted by or under an Act; or (b) established or constituted under the royal prerogative – if the body or authority, or the governing body of the body or authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority, and includes the governing body of any such statutory authority but does not include a State-owned company; successor fund has the meaning it has in regulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth; superannuation fund means a regulated superannuation fund within the meaning of the SIS Act; Superannuation Guarantee Act means the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, as amended from time to time; Tasmanian Accumulation Scheme means the Tasmanian Accumulation Scheme established by the Trust Deed; transfer assets means the assets of the Fund that are determined by the Actuary under section 22(1) to be the transfer assets; transfer date means the date that is specified, in the notice under section 20(1) in relation to the initial default fund, as the date on which the notice takes effect; transferring members means all persons who are members of the Tasmanian Accumulation Scheme immediately before the transfer date, other than any Investment 12 Account member; Trust Deed means the Trust Deed, approved under section 7 of the Public Sector Superannuation Reform Act 1999 , as amended from time to time. (2) The Board may, before the transfer date, do either or both of the following: (a) declare a member to be an Investment 12 Account member; (b) declare a class of members to be Investment 12 Account members. (3) A reference in this Act to an Agency in which an employee is employed is – (a) if the employee holds an office under a provision of an Act, or regulations, that specifies that the holder of the office is an employee for the purposes of this Act – to be taken to be a reference to the Agency responsible for the administration of the Act, or the part of the Act, in which the provision appears or under which the provision is made; or (b) if the employeeis, by virtue of paragraph (f) of the definition of employee in subsection (1) , an employee for the purposes of this Act because he or she is a member of a board – to be taken to be a reference to the Agency responsible for the administration of the Act, or the part of the Act, in or under which the board is established. 4. Meaning of salary (1) A reference in this Act to salary, in relation to an employee, is to be taken as a reference to the salary or other discretionary benefits that are paid or payable to the employee, including – (a) overtime; and (b) allowances; and (c) bonuses in respect of work; and (d) lump sum payments in respect of accrued recreation leave or accrued long service leave on the termination of employment; and (e) any other payments made in lieu of notice on the termination of employment – as calculated by the Agency in which the employee is employed, having regard to the employee's awards and conditions of employment. (2) However, a reference to salary in this Act is not to be taken as including – (a) any reimbursement of expenses in respect of travelling or other work-related expenses; or (b) dividends; or (c) benefits, or other payments, subject to fringe benefits tax under the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth; or (d) any electorate or other allowance paid or payable, to a person who is a member of a House of Parliament, in accordance with Schedule 2 to the Parliamentary Salaries, Superannuation and Allowances Act 2012 . 5. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Superannuation Commission Division 1 - Superannuation Commission 6. Superannuation Commission (1) The Superannuation Commission is established. (2) The Commission – (a) is – (i) a body corporate with perpetual succession and has a seal; or (ii) if a notice under subsection (5)(a) declaring that the Commission is a corporation sole is in force – a corporation sole; and (b) may sue and be sued in its corporate name; and (c) may acquire, hold and dispose of real and personal property; and (d) may do all other things that a body corporate may do and that are necessary or convenient to be done in relation to the performance or exercise of the functions or powers of the Commission under this or any other Act. (3) The seal, if any, is to be kept and used as authorised by the Commission. (4) All courts and persons acting judicially must take judicial notice of the imprint of the seal on a document and presume that the document was duly sealed by the Commission. (5) The Minister may, by notice – (a) declare that the Commission is a corporation sole; or (b) revoke a notice under paragraph (a) . (6) A notice under subsection (5) – (a) is not a rule for the purposes of the Subordinate Legislation Act 1992 ; but (b) is a rule for the purposes of the Rules Publication Act 1953 . 7. Membership of Commission (1) The Commission consists of the person, or persons, appointed by the Treasurer under subsection (2) . (2) The Treasurer may appoint up to 3 persons to be members of the Commission. (3) The Treasurer is to appoint a member of the Commission as the chairperson of the Commission. (4) Schedule 1 has effect in relation to the membership of the Commission. (5) Schedule 2 has effect in relation to meetings of the Commission. (6) If a notice under section 6(5)(a) is in force – (a) a reference in this Act to the chairperson of the Commission is to be taken to be a reference to the single member of the Commission; and (b) Schedule 2 ceases to apply in relation to the Commission; and (c) any decision or action of the Commission as a body corporate, and any reference in a document or proceeding to the Commission as a body corporate, is to be taken to have been made or performed by, or to be a reference to, the Commission as a corporation sole. (7) If a notice under section 6(5)(a) is revoked by a notice under section 6(5)(b) , any decision or action of the Commission as a corporation sole, and any reference in a document or proceeding to the Commission as a corporation sole, is to be taken to have been made or performed by, or to be a reference to, the Commission as a body corporate. 8. Acting member of Commission (1) For the purposes of this section, a member of the Commission is absent if – (a) he or she is absent from duty; or (b) he or she is disqualified under section 13(2) from taking part in a consideration of, or the making of a decision in relation to, any matter or any other proceeding of the Commission in relation to the matter; or (c) he or she is otherwise incapable of performing the functions of the office of member of the Commission; or (d) section 13(6) applies. (2) The Treasurer may appoint a person to act as a member of the Commission during any particular, or every, period during which the member of the Commission is absent. (3) Except if section 7(6)(a) applies in relation to a person, the appointment of a person under subsection (2) to act in the office of the member of the Commission who is its chairperson is not an appointment to act in the office of chairperson. (4) The appointment of a person under subsection (2) is subject to, and has effect in accordance with, the terms and conditions (including remuneration and allowances) specified in the person's instrument of appointment. (5) If a vacancy, within the meaning of clause 5 of Schedule 1 , occurs in the office of a member of the Commission while a person appointed under subsection (2) is acting in the office of that member, that person may continue to act in the office of that member until the first of the following happens: (a) the period of 6 months commencing on the day on which the vacancy occurs ends; (b) the Treasurer appoints a person to that vacant office under section 7(2) or clause 6 of Schedule 1 ; (c) the office in which the person is acting is vacated on the grounds specified in clause 5(2)(f) of Schedule 1 . (6) Anything done by or in relation to a person purporting to act as a member of the Commission is not invalid merely because – (a) there is a defect or irregularity in relation to the appointment of that person; or (b) the occasion or the appointment of that person has not arisen; or (c) the appointment of that person has ceased to have effect; or (d) the occasion for that person to act as a member of the Commission has not arisen or has ceased. Division 2 - Functions and powers 9. Functions and powers of Commission (1) The Commission has the functions conferred on it by or under this Act, the regulations and any other Act. (2) The Commission has the powers necessary, desirable, or convenient, to perform its functions. 10. Duties of Commission In the administration of this Act, the Commission – (a) must not disclose information, the disclosure of which might adversely affect the financial position, or the commercial or other operations, of the Commission; and (b) must, after the transfer date, exercise a fiduciary responsibility over all the assets, investments and property of the Commission and the Fund; and (c) must have regard to the superannuation and employment policies of the Government; and (ca) must have regard to the Heads of Government Agreement, as amended from time to time, that was made on 28 May 1996 between the Commonwealth and Tasmania and that relates to the exemption of public sector superannuation schemes from the SIS Act; and (d) must take possession of all money, and other property, vested in the Commission under this Act. 11. Investment strategies of Commission (1) The Commission is, in determining the investment strategy in relation to the Fund, to have regard to any guidelines, in relation to investments, issued by the Treasurer. (2) The Commission is to inform the Treasurer of the proposed investment strategy in relation to the Fund that the Commission proposes to make. (3) The Commission is not subject to the direction of any Minister or other person in relation to any decision to be made by the Commission in relation to the investment strategy of the Fund or any particular investment of the Fund. 12. Delegation The Commission may delegate to a person made available to the Commission under section 14 , or a person or organisation engaged on contract under this Act, any of the Commission's functions or powers – (a) under this or any other Act; or (b) any instrument having effect under this or any other Act – other than this power of delegation. Division 3 - Miscellaneous 13. Disclosure of interest (1) If a person appointed to, or acting in, the office of a member of the Commission has a direct or indirect interest (pecuniary or otherwise) in a matter that is about to be considered by the person in his or her capacity as a member of the Commission, the person must disclose the nature of the interest to the Treasurer as soon as practicable after the relevant facts come to the person's knowledge. (2) Unless the Treasurer otherwise determines, a person who has made a disclosure under subsection (1) in relation to a matter must not – (a) be present during any consideration of, or the making of a decision in relation to, the matter under this Act or any other Act or during any other proceeding in relation to the matter under this Act or any other Act; or (b) take part in any consideration of, or the making of a decision in relation to, the matter. (3) For the purpose of making a decision under subsection (2) , the member of the Commission to whom the decision relates must not – (a) be present during any deliberation of the Commission for the purpose of making the decision; or (b) take part in making the decision. (4) Subsection (1) does not apply in respect of an interest that consists only of the receipt of a service that – (a) is also available to members of the public; and (b) is made available on the same terms as apply to members of the public. (5) A contravention of subsection (1) does not invalidate any act, proceeding or decision of the Commission. (6) If the Commission is a corporation sole and subsection (2) applies in relation to a matter, the Treasurer must appoint under section 8(2) another person to act in the office of the member of the Commission in relation to the matter. 14. Human resources to be made available to Commission (1) The Commission may arrange, with the Secretary of the Department, for State Service officers and State Service employees employed in the Department to be made available to the Commission for the purpose of enabling the Commission to perform and exercise its functions and powers. (2) On the written request of the Commission, the Secretary of the Department may arrange, with another Head of a State Service Agency, for State Service officers and State Service employees employed in that Agency to be made available to the Commission for the purpose of enabling the Commission to perform and exercise the Commission's functions and powers. (3) State Service officers and State Service employees made available under subsection (1) or (2) may serve the Commission in conjunction with State Service employment. (4) All expenses associated with the use by the Commission of the services of a person referred to in subsection (1) or (2) are to be met as determined by the Treasurer. 15. Commission may engage administrators, consultants &c. (1) The Commission may engage, or terminate the engagement of, any administrators, advisers, agents, contractors, consultants, or other persons or organisations, in relation to the performance or exercise of the Commission's functions or powers or otherwise in the administration of this Act. (2) The Commission may pay fees to, or otherwise remunerate, any administrators, advisers, agents, contractors, consultants, or other persons or organisations, engaged under subsection (1) . 15A. Secretary to be accountable authority for purposes of Audit Act 2008 Despite section 14 of the Audit Act 2008 , the Secretary of the Department responsible to the Minister for the administration of this Act is the accountable authority of the Commission for the purposes of the Audit Act 2008 . 16. Judicial notice All courts and persons acting judicially must take judicial notice of – (a) the official signature of a person who is or has been a member of the Commission; and (b) the fact that the person holds or has held the office of a member of the Commission. 17. Liability of Commission The Commission is not liable for any loss suffered by a person because of – (a) an election made by the person under the regulations; or (b) an investment decision made by or on behalf of the Commission; or (c) an investment choice exercised by the person; or (d) an election by the person to become a member of a complying superannuation scheme. PART 3 - Transitional Role of Board and Commission 18. Composition of Board in transitional period On and from the day on which this section commences until the day on which the Retirement Benefits Act 1993 is repealed – (a) the chairperson of the Commission is to be taken to be a member of the Board but sections 9 and 9A of that Act, and Schedule 1 to that Act, do not apply in relation to the chairperson as a member of the Board; and (b) the Board is to be taken to consist of the following members: (i) subject to paragraph (c) , the 7 members of whom the Board consists under section 8 of that Act; (ii) the chairperson of the Commission; and (c) the Minister, by notice to the Board, may determine that any vacancy in the Board is not required to be filled and, if such a determination is made, the number of members of the Board referred to in paragraph (b)(i) is reduced accordingly; and (d) the Minister may, by notice to a member of the Board, extend the term of the member's appointment to the Board and, if such a notice is issued in relation to a member, Schedule 1 to the Retirement Benefits Regulations 2005 does not apply in relation to the member; and (e) this section applies despite any inconsistency with a provision of the Retirement Benefits Act 1993 or the Retirement Benefits Regulations 2005. 19. Functions of Board and Commission in transitional period (1) On and from the commencement of this section until the day on which the Retirement Benefits Act 1993 is repealed, the functions of the Board include taking the action that may be necessary, or that the Board is directed by the Minister to take, in preparation for, or in order to effect, a transfer in compliance with a direction under section 22 . (2) The Minister may issue to the Board any direction the Minister thinks is required in preparation for, or in order to effect, a transfer in compliance with a direction under section 22 . (3) The Board must comply with a direction given to it under subsection (2) . (4) If a direction is given under subsection (2) to the Board, a member of the Board (including the chairperson of the Commission) or an officer, employee, or agent, of the Board is indemnified by the Crown against any liability incurred by him or her in relation to – (a) an action taken by him or her in relation to the direction; or (b) a failure by him or her to take an action in relation to the direction – if he or she took the action in good faith, or failed in good faith to take the action, in the belief that taking the action, or failing to take the action, was necessary or convenient to implement the direction. (5) The chairperson of the Commission must, as soon as practicable after the day on which the Retirement Benefits Act 1993 is repealed, prepare and submit to the Minister – (a) a statement of accounts in relation to the Fund in respect of so much of the financial year in which that day occurs as occurs before the day; and (b) an annual report in relation to the performance of the Board and the Fund during so much of the financial year in which that day occurs as occurs before the day. PART 4 - Default Funds Division 1 - Nomination of default funds 20. Default fund (1) The Minister, by notice in the Gazette, may nominate a superannuation fund to be adefault fund on and from the date on which the notice takes effect. (2) The Minister, as soon as practicable after the commencement of this section, must issue a notice under subsection (1) . (3) The Minister may issue more than one notice under subsection (1) . (4) The Minister may only nominate under subsection (1) a superannuation fund to be a default fund (other than the initial default fund) with the approval in writing of the Tasmanian Trades and Labor Council. (5) A notice under subsection (1) takes effect on a date, on or after the date on which the notice appears in the Gazette, that is specified in the notice as the date on which the notice is to take effect. (6) The Minister may only nominate under subsection (1) a superannuation fund to be a default fund that will be the initial default fund if the Minister is satisfied that the fund will be a successor fund in relation to a transfer of members to the superannuation fund from the Tasmanian Accumulation Scheme. (7) A notice under subsection (1) may include any provision necessary or convenient for consistency with the SIS Act. (8) The Minister may enter into a contract, agreement, or arrangement, with a superannuation fund, under which – (a) the Crown is required to nominate the superannuation fund to be a default fund in a notice under subsection (1) ; or (b) the Crown agrees, for a period specified in the contract, agreement or arrangement, not to nominate, in a notice under subsection (1) , another superannuation fund to be a default fund. 21. Employer contributions to be made to default fund if no chosen fund elected by employee (1) For the purposes of this section, a person is a relevant employee in relation to a default fund if – (a) where the fund is the initial default fund, the person is – (i) a transferring member; or (ii) an employee appointed or employed after the transfer date and before the date, if any, on which another superannuation fund becomes a default fund; or (b) where the fund is not the initial default fund – the person is an employee appointed or employed after the date on which the fund becomes a default fund and before the date, if any, on which the fund ceases to be a default fund. (2) If a person who is a relevant employee in relation to a default fund has not elected a chosen fund, within the meaning of the Superannuation Guarantee Act, the Agency manager of the Agency in which the employee is employed must – (a) make, on behalf of the Agency, employer superannuation contributions, in respect of that employee, to that default fund; and (b) make those contributions in the manner required by the governing rules of that default fund. (3) The rate of employer superannuation contributions to the default fund in respect of a relevant employee is to be calculated – (a) by reference to the salary of the relevant employee; and (b) in accordance with the relevant "charge percentage" specified in section 19 of the Superannuation Guarantee Act. Division 2 - Transfer of assets and members to initial default fund 22. Transfer to initial default fund of existing members and related assets (1) The Actuary must, by notice to the Minister and the Board, determine the transfer assets, being the amount of the assets of the Fund that the Actuary considers represents – (a) the benefits of the transferring members immediately before the transfer date; and (b) the proportion, of the reserves of the Fund, that relates to the Tasmanian Accumulation Scheme. (2) The Minister may, in writing, direct the Board to transfer to the initial default fund, with effect from the transfer date – (a) all transferring members; and (b) the transfer assets. (3) If the Board is given a direction under subsection (2) , the Board must – (a) transfer to the initial default fund, with effect from the transfer date, all