Southern State Superannuation Act 2009 (SA)

South Australia Southern State Superannuation Act 2009 An Act to continue the Triple S contributory superannuation scheme for persons employed in the public sector; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Continuation of Triple S scheme 5 Employer contribution percentage 6 Participating employers 7 Putative spouses 8 Restriction on publication of proceedings Part 2—Administration Division 1—The Board 9 Function of Board Division 2—The Southern State Superannuation Fund 10 The Fund 11 Investment of Fund Division 3—Accounts 12 Accounts 13 Accretions to accounts 14 Investment choice 15 Other accounts to be kept by Board 16 Reports 17 Report as to cost and funding of insurance benefits Division 4—Payment of benefits 18 Payment of benefits Part 3—Membership and contributions 19 Membership of scheme 20 Contributions 21 Payments by employers Part 3A—Portability and fund selection Division 1—Interpretation 21A Interpretation Division 2—Portability 21B Transfer of funds Division 3—Fund selection 21C Member may direct employer contributions to other fund 21D Effect of fund selection 21E Employer obligations 21F Matters affecting eligibility of funds 21G Person may elect to return to Triple S scheme 21H Immunity from liability 21I Employer to report to Board Part 4—Miscellaneous 22 Insurance benefits 23 Rollover of money from other funds or schemes 23A Unclaimed superannuation benefits 24 Employer benefits and contributions if person on leave without pay 25 Review of Board's decision 26 Power to obtain information 27 Delegation by Board 28 Confidentiality 29 Resolution of difficulties 30 Regulations Schedule 1—Transitional provisions Part 6—Transitional provisions 9 Interpretation 10 Southern State Superannuation (Employers) Fund 11 Balances of accounts 12 Former members of Police Superannuation Scheme 13 Children in receipt of pension under Police Superannuation Act 1990 14 Amounts preserved for certain contributors to Police Superannuation Scheme 15 Operation of nominations and elections under old scheme 16 Insurance and disability pension 16B Recognition of prior membership 17 Other provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Southern State Superannuation Act 2009. 3—Interpretation (1) In this Act, unless the contrary intention appears— actuary means a fellow or accredited member of the Institute of Actuaries of Australia; Board means the South Australian Superannuation Board continued in existence by the Superannuation Act 1988; co‑contribution means a payment made 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; contribution account means— (a) in relation to a member—the contribution account maintained by the Board under section 12 in the name of the member; (b) in relation to a spouse member—the contribution account (if any) maintained by the Board in the name of the spouse member; employer contribution percentage—see section 5; employing authority in relation to a person means— (a) the chief executive to whom the person is answerable on matters relating to his or her employment; or (b) if there is no chief executive—the authority, body or person to whom the person is answerable; employment to which this Act applies or employment—see subsection (3); Fund means the Southern State Superannuation Fund continued in existence by this Act; fund includes a scheme or account; fund selection—see section section 21C(5); invalidity means physical or mental incapacity to carry out the duties of employment; member means a person who is a member of the scheme under section 19 (but a reference in this Act or the regulations to a member does not include a reference to a spouse member); monetary salary means salary of a kind other than non‑monetary salary; non‑monetary salary, in relation to a person, means remuneration in any form resulting from the sacrifice by the person of part of his or her salary; participating employer means an employer with whom the Board has entered into an arrangement under section 6; police cadet means a person appointed under the Police Act 1998 to be a police cadet; police member means a police officer who is a police member of the Triple S scheme pursuant to regulations made under section 19(3)(b); Police Superannuation Scheme means the scheme of superannuation established by the Police Superannuation Act 1990; putative spouse—see section 7; 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 Southern State Superannuation Act 1994; rollover account means an account established and maintained by the Board as a rollover account in accordance with the requirements of this Act; salary in relation to a person includes all forms of remuneration (including non‑monetary salary) received by the person except— (a) remuneration related to overtime (other than remuneration related to overtime that is paid by way of an annual allowance); or (b) an amount paid in lieu of— (i) recreation leave; or (ii) long service leave; or (iii) any other kind of leave, on the termination of the person's employment; or (c) an amount paid to the person as a consequence of the termination of the person's employment; or (d) remuneration of a prescribed kind; Note— See subsection (2). salary sacrifice contribution in relation to a person means an amount or amounts allocated pursuant to an award or enterprise agreement of the whole or part of the person's non‑monetary salary for the purposes of the allocated amount or amounts being credited to the person's contribution account or, in the case of a person who has made a fund selection, to the person's selected fund; Southern State Superannuation Scheme or scheme means the scheme of superannuation continued in existence by this Act; 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; spouse account means— (a) a contribution account; or (b) a rollover account; or (c) a co‑contribution account, established and maintained by the Board for the benefit of a spouse member in accordance with the requirements of this Act; spouse member means a person who is a spouse member of the Triple S scheme pursuant to regulations made under section 19(3)(c); State Scheme means the scheme of superannuation established by the Superannuation Act 1988; 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; 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 by this Act. (2) For the purposes of determining the amount of salary received by a person 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 person in order to receive the non‑monetary salary. (3) This Act applies to employment by or on behalf of— (a) the Crown, or an instrumentality or agency of the Crown; or (b) an employer who has entered into an arrangement with the Board under section 6, and a reference in this Act to employment, in relation to a person, is a reference to employment of the person in employment to which this Act applies. 4—Continuation of Triple S scheme (1) The scheme of superannuation established by the repealed Act continues in existence under this Act (subject to any provision made by or under this Act). (2) The scheme will continue to be known as the Southern State Superannuation Scheme or the "Triple S scheme". 5—Employer contribution percentage (1) Subject to subsection (3), the employer contribution percentage applicable in respect of a person will be fixed by regulation. (2) A regulation made for the purposes of subsection (1) may fix different amounts for different classes of person. (3) The employer contribution percentage applicable in respect of a person in relation to whom an employer contribution percentage is not fixed by regulation under subsection (1) will be— (a) in the case of— (i) a person (other than a prescribed person) who is making contributions as a deduction from salary under section 20 at a rate of at least 4.5%; or (ii) a prescribed person who is making contributions as a deduction from salary under section 20 at a rate of at least 4.5%, or salary sacrifice contributions at a rate of at least 5.3%, (or both), 10% or a percentage equal to the charge percentage applicable under the Commonwealth Act to the employer of the person, whichever is the greater; and (b) in any other case—9% or a percentage equal to the charge percentage applicable under the Commonwealth Act to the employer of the person, whichever is the greater. (4) In this section— prescribed person means— (a) a police member (other than a police cadet or a police officer employed on a contract having a fixed term); or (b) a person— (i) who has ceased to be a member of the scheme by virtue of section 19(2)(b); but (ii) who would, if they were a member of the scheme, be a member to whom paragraph (a) applies; or (c) a person or a class of persons prescribed by the regulations for the purposes of this definition. 6—Participating employers (1) Subject to subsection (3), the Board may enter into an arrangement with an approved employer under which the employees of the employer become eligible to apply to be accepted as members of the scheme. (2) An arrangement under subsection (1)— (a) may modify the provisions of this Act or the regulations in their application to, or in relation to, employees to which the arrangement relates (but not so as to put those employees or their spouses in a more advantageous position than other members or spouse members); and (b) may be varied at any time by agreement between the Board and the approved employer. (3) An arrangement under subsection (1) or a variation under subsection (2) is not effective unless its terms are approved by the Minister. (4) In this section— approved employer means— (a) an instrumentality or agency of the Crown in right of the Commonwealth or any State or Territory; or (b) another authority, body or person, approved by the Minister for the purposes of this section. 7—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. 8—Restriction on publication of proceedings (1) Protected information is information relating to an application under section 7 (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 application relates; 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 judgments 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. Part 2—Administration Division 1—The Board 9—Function of Board The Board— (a) is responsible to the Minister for all aspects of the administration of this Act except the management and investment of the Fund; and (b) is to provide advice to the Minister about any matter referred to it by the Minister or any matter it sees fit to advise the Minister about in connection with its responsibilities under this Act. Division 2—The Southern State Superannuation Fund 10—The Fund (1) The Southern State Superannuation 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 from the Consolidated Account (which is appropriated to the necessary extent) or from a special deposit account established by the Treasurer for the purpose— (a) periodic contributions reflecting the contributions paid to the Treasurer by members and spouse members with respect to the relevant period; and (b) the amount of any co‑contributions paid or transferred to the Board on behalf of a member or spouse member (but received by the Treasurer on behalf of the Board); and (c) an amount or amounts equivalent to any amount or amounts rolled over from another superannuation fund or scheme to the Triple S scheme; and (d) payments to the Treasurer by employers under section 21; and (e) payments to the Treasurer by or on behalf of employers as required under the regulations. (5) All earnings arising from investment of the Fund must be paid into the Fund. (6) The following amounts will be paid from the Fund: (a) administrative costs and other expenses of or relating to the administration of this Act and the management and investment of the Fund; (b) any reimbursement of the Consolidated Account or a special deposit account that the Treasurer charges against the Fund under this Act, including reimbursement in respect of benefits payable under this Act or of insurance benefits payable under this Act; (c) the reimbursement of the Treasurer for an amount (if any) paid (whether before or after the commencement of this paragraph) by the Treasurer for a purpose referred to in paragraph (a). (7) The Superannuation Funds Management Corporation of South Australia must determine the value of the Fund as at the end of each financial year. 11—Investment of 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 3—Accounts 12—Accounts (1) Subject to this section, the Board must maintain— (a) a contribution account in the name of— (i) a member who is making or has made contributions to the scheme, or in relation to whom contributions are being or have been made by the member's employer; and (ii) a spouse member who is making or has made contributions to the scheme, or in relation to whom contributions are being or have been made by a member in accordance with the regulations; and (b) a rollover account in the name of— (i) a member or spouse member for whom an amount of money has been rolled over from another fund or scheme to the Triple S scheme; and (ii) a member of the Police Superannuation Scheme in respect of whom an amount of money rolled over from another fund or scheme has been accepted by the Police Superannuation Board and paid to the Treasurer under section 13B of the Police Superannuation Act 1990; and (c) a co‑contribution account in the name of— (i) a member or spouse member, or a member of the State Scheme, in respect of whom a co‑contribution has been paid to the Board; and (ii) a member of the Police Superannuation Scheme in respect of whom the amount of a co‑contribution has been transferred from that scheme to the Board; and (d) any other account that the Board is required to maintain under the regulations. (2) An account must be maintained in accordance with requirements specified in the regulations. (3) The regulations may make further provision in relation to the maintenance of accounts by the Board and, in particular, may— (a) provide that the Board is, or is not, required to maintain a particular type of account for particular members or spouse members, or particular classes of member or spouse member; or (b) specify details that are to be included in accounts, including amounts to be credited to, or debited against, accounts; or (c) specify adjustments that are to be made to accounts. (4) The Board must establish a scheme under which each member's or spouse member's beneficial interest in the Fund, as held in the accounts of the Board, is represented by 1 or more units (including, if relevant, parts of units), with each unit being an undivided beneficial interest in the Fund. 13—Accretions to accounts (1) Each contribution account, rollover account and co‑contribution account that has a credit balance will be adjusted from time to time by the Board to reflect movements in the value of units allocated to each account under the scheme established by the Board. (2) In determining movements in the value of each unit of beneficial interest held in the name of each member or spouse member, the Board must have regard to the earnings achieved on the class of investments in which the accounts of a member or spouse member are allocated. (3) If a member or member spouse has made a nomination under section 14, in determining movements in the value of each unit of beneficial interest held in the name of the member or spouse member, the Board must have regard to the earnings achieved on the class of investments, or the combination of classes of investments, nominated by the member or spouse member. 14—Investment choice (1) 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 members or spouse members, 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 adjustment to be made to accounts under section 13. (2) If a member or spouse member has not made a nomination under subsection (1), the Board will allocate the accounts of the member or spouse member to a class of investments according to a determination of the Board. 15—Other accounts to be kept by Board (1) The Board must, in respect of each financial year— (a) maintain proper accounts of— (i) receipts of members' contributions, spouse members' contributions and employer contributions paid under this Act; and (ii) payments to, on behalf of, or in respect of, members and spouse members; and (iii) payments made from members' contribution accounts to spouse accounts; and (iv) amounts transferred from spouse accounts to other accounts for the purpose of amalgamating accounts; and (b) prepare financial statements in relation to those receipts, payments and transfers; and (c) maintain other accounts and prepare other financial statements as required by the regulations. (1a) However, the Board is not required to maintain accounts of employer contributions paid to another fund pursuant to a fund selection. (2) The financial statements must include the information (if any) required by the regulations. (3) The Auditor‑General may at any time, and must at least once in each year— (a) audit the accounts and financial statements referred to in subsection (1); and (b) audit the other accounts to be maintained by the Board under this Act. 16—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. (2) The report must include a copy of the financial statements prepared by the Board in relation to receipts of members' contributions, spouse members' contributions and employer contributions, and relating to payments to, on behalf of, or in relation to, members and spouse members. (3) 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. 17—Report as to cost and funding of insurance benefits (1) The Minister must obtain a report on the cost and funding of insurance benefits (including disability pensions) provided through the scheme within 12 months after 30 June 2010 and thereafter within 12 months after the end of each triennium following that date. (2) Each report must be prepared by an actuary (not being a member of the Board) appointed by the Minister and must report on— (a) the cost of insurance benefits; and (b) the extent to which premiums paid by members and held by the Board are sufficient to meet the scheme's anticipated insurance liabilities, at the time of the report and in the foreseeable future. (3) 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. Division 4—Payment of benefits 18—Payment of benefits (1) A payment to be made under this Act to or on behalf of a member or spouse member, or to another person who has an entitlement to the payment of a benefit or other amount with respect to a superannuation interest, must be made by the Treasurer out of the Consolidated Account (which is appropriated to the necessary extent) or out of a special deposit account established by the Treasurer for that purpose. (2) If the payment includes an amount standing to the credit of a contribution account, 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 must reimburse the Consolidated Account or special deposit account by charging the Fund with that amount. (3) If the payment includes an invalidity or death insurance benefit, the Consolidated Account or special deposit account is to be reimbursed with the amount of the benefit by charging it against the Fund. (4) If, on the invalidity or death of a member who was a police officer, an amount greater than the aggregate of the balance of the member's contribution account and an insurance benefit (if any) is payable by way of benefits under the regulations to or in respect of the member, the amount payable will be taken, for the purposes of this section, to include the balance of the contribution account and the insurance benefit (if any). (5) This section does not apply in relation to a payment to be made to a person in connection with an investment service or some other product or service provided by the Board pursuant to regulations made under section 30(2)(g). Part 3—Membership and contributions 19—Membership of scheme (1) Subject to this section, a person— (a) in relation to whom the Crown, or an agency or instrumentality of the Crown— (i) is liable to pay a superannuation guarantee charge under the Commonwealth Act; or (ii) is not liable to pay a superannuation guarantee charge under the Commonwealth Act but pays an amount to the Treasurer as if it were required to pay the amount under section 21; or (b) who— (i) is employed by a participating employer; and (ii) has been accepted as a member of the scheme; or (c) who was a member of the Triple S scheme immediately before the repeal of the Southern State Superannuation Act 1994, is a member of the Triple S scheme. (2) However, a person— (a) who is— (i) a member of a scheme of superannuation established by or under some other Act; or (ii) a member of a scheme of superannuation established for the benefit of the employees of an agency or instrumentality of the Crown (not being a scheme referred to in subparagraph (i)); or (b) who— (i) makes a fund selection; and (ii) opts to have all amounts standing to the credit of accounts maintained by the Board on behalf of the person rolled over to a complying superannuation fund (within the meaning of Part 3A), is not, subject to section 21G and regulations under subsection (3), a member of the Triple S scheme. (3) The regulations may make further provision in relation to membership and spouse membership of the Triple S scheme and, in particular, may provide— (a) that particular persons, or particular classes of persons are, or are not, or have ceased to be, members of the scheme; or (b) that a police officer who is a member of the scheme is, or is not, a police member of the scheme; or (c) that a person who is or was the spouse of a member is, subject to conditions specified in the regulations, a spouse member of the scheme; or (d) that a specified provision of this Act does not apply, or applies subject to prescribed modifications, to a member or a class of members, or to a spouse member or a class of spouse members. 20—Contributions (1) Subject to subsection (1b) and regulations made under subsection (2), and to conditions (if any) prescribed by regulation— (a) a member may elect to make contributions to the Treasurer as a deduction from salary; and (b) a police member (other than a police cadet or a police officer employed on a contract having a fixed term) must, subject to subsection (1a), make contributions— (i) to the Treasurer; or (ii) if the member has made a fund selection in their capacity as a police member—to the fund selected for the purposes of that fund selection, as a deduction from salary at a rate that equals or exceeds the prescribed percentage; and Note— If police members are prescribed as designated members for the purposes of Part 3A, their ability to make a fund selection will be limited as they will only be able to select a fund that has been prescribed by regulation. (c) a member who is making contributions to the Treasurer as a deduction from salary may make additional monetary contributions to the Treasurer that are not related to the member's salary; and (d) a member whose employment has not terminated but who is not making contributions to the Treasurer as a deduction from salary may make monetary contributions to the Treasurer. (1a) Subsection (1)(b) does not apply to a police member who is making salary sacrifice contributions at a rate of at least 5.3%. (1b) A member who has made a fund selection— (a) may not make contributions to the Treasurer under subsection (1)(a) or (b) as a deduction from the salary received by the member from the employer to which the fund selection relates; but (b) may, if the Board is continuing to maintain a contribution account on behalf of the member, make contributions to the Treasurer under subsection (1)(d). (1c) Subsection (1b)(a) does not apply if the member has subsequently given a valid direction to their employer under section 21G(1). (2) The regulations may— (a) provide that particular members, or particular classes of member, are not entitled to make contributions under this section or must contribute at a specified rate; or (b) require specified members, or members of a specified class, to make contributions as a deduction from salary at a prescribed rate— (i) to the Treasurer; or (ii) if the member has made 1 or more fund selections— (A) to a fund selected by the member for the purposes of a fund selection; or (B) if the regulations so require, to a fund specified in the regulations, (and a regulation under this paragraph may prescribe different rates or specify different funds in respect of different members or different classes of member); or (c) require that a monetary contribution under subsection (1)(c) or (d) be equal to, or exceed, a specified amount; or (d) make provision for the payment of contributions by or on behalf of spouse members (subject to specified conditions). 21—Payments by employers (1) Within a period (to be determined by the Board) after salary is paid to a prescribed person, the person's employer must pay to the person's designated superannuation authority an amount calculated as follows: where— A is the amount to be paid ECP is the employer contribution percentage applicable in respect of the person for the period during which the salary was paid S is the amount of salary paid to the person. (1a) However, if— (a) the person has made a fund selection; and (b) the selected fund is precluded under a law of the Commonwealth from receiving contributions in respect of a salary that is higher than the maximum contribution base; and (c) the person's salary for the quarter in which the payment is being made exceeds the maximum contribution base applying for that quarter, the following provisions apply for the purposes of interpreting the formula in subsection (1): (d) ECP is a percentage equal to the charge percentage applicable under the Commonwealth Act to the employer of the person; (e) S is an amount equal to the maximum contribution base applying for that quarter. (2) If a prescribed person makes a salary sacrifice contribution, the employer must, within 7 days after salary is paid to the person, pay to the person's designated superannuation authority an amount (or arrange for the payment within that period to the person's designated superannuation authority of an amount) equivalent to the person's salary sacrifice contribution. (3) If an employer fails to pay the amount referred to in subsection (1) or (2) within the time allowed by that subsection, the employer is liable to pay to the Treasurer a penalty (not being greater than 10% of the amount unpaid) fixed by the Board. (3a) An employer may satisfy the requirement under this section to pay an amount on behalf of a prescribed pe