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STATUTES AMENDMENT (DIVISION OF SUPERANNUATION INTERESTS UNDER FAMILY LAW ACT) 2003

[BIL091-B.HAL]

House of AssemblyNo. 116

[As laid on the table and read a first time, 25 March 2003]

South Australia

[Prepared by the Parliamentary Counsel]

STATUTES AMENDMENT (DIVISION OF SUPERANNUATION BENEFITS UNDER FAMILY LAW ACT) BILL 2003

A Bill For

An Act to amend the Judges' Pensions Act 1971, the Parliamentary Superannuation Act 1974, the Police Superannuation Act 1990, the Southern State Superannuation Act 1994 and the Superannuation Act 1988.

[OPC-16]


Contents

Part 1—Preliminary

1.Short title

2.Commencement

3.Amendment provisions

Part 2—Amendment of Judges' Pensions Act 1971

4.Insertion of section 9A

9A.Spouse entitlement subject to any Family Law determination

5.Insertion of Part 2A

Part 2A—Family Law Act provisions

17B.Purpose of this Part

17C.Interpretation

17D.Accrued benefit multiple

17E.Value of interest

17F.Non-member spouse's entitlement

17G.Entitlement where pension is in growth phase

17H.Entitlement where pension is in payment phase

17I.Payment of non-member spouse's entitlement

17J.Reduction in Judge's entitlement

17K.Pension not payable to spouse on death of Judge if split has occurred

17L.Treasurer to comply with Commonwealth requirements

17M.Payment of benefit

17N.Regulations

Part 3—Amendment of Parliamentary Superannuation Act 1974

6.Insertion of Part 4A

Part 4A—Family Law Act provisions

23A.Purpose of this Part

23B.Interpretation

23C.Accrued benefit multiple

23D.Value of superannuation interest

23E.Non-member spouse's entitlement

23F.Non-member spouse's entitlement where pension is in growth phase

23G.Non-member spouse's entitlement where pension is in payment phase

23H.Payment of non-member spouse's entitlement

23I.Reduction in member's entitlement

23J.Pension not payable to spouse on death of member if split has occurred

23K.Board to comply with Commonwealth requirements

7.Insertion of section 26AAA

26AAA.Spouse entitlement subject to any Family Law determination

8.Insertion of section 39A

39A.Confidentiality

9.Amendment of section 40—Regulations

Part 4—Amendment of Police Superannuation Act 1990

10.Amendment of section 26—Death of contributor

11.Amendment of section 32—Benefits payable on contributor's death


12.Insertion of Part 5B

Part 5B—Family Law Act provisions

Division 1—Preliminary

38F.Purpose of this Part

38G.Interpretation

38H.Value of superannuation interest

38I.Board to comply with Commonwealth requirements

38J.Reduction in contributor's entitlement

38K.Benefit not payable to spouse on death of member if split has occurred

Division 2—New scheme contributors

38L.Application of Division

38M.Accrued benefit multiple

38N.Non-member spouse's entitlement

Division 3—Old scheme contributors

38O.Application of Division

38P.Accrued benefit multiple

38Q.Non-member spouse's entitlement

38R.Non-member spouse's entitlement where pension is in growth phase

38S.Non-member spouse's entitlement where pension is in payment phase

38T.Payment of non-member spouse's entitlement

13.Amendment of section 49—Confidentiality

14.Amendment of section 52—Regulations

Part 5—Amendment of Southern State Superannuation Act 1994

15.Amendment of section 3—Interpretation

16.Amendment of section 7—Contribution and rollover accounts

17.Amendment of section 12—Payment of benefits

18.Amendment of section 14—Membership

19.Amendment of section 21—Basic Invalidity/Death Insurance

20.Amendment of section 22—Application for additional invalidity/death insurance

21.Amendment of section 25—Contributions

22.Amendment of section 26—Payments by employers

23.Amendment of section 27—Employer contribution accounts

24.Amendment of section 35—Death of member

25.Insertion of Part 5A

Part 5A—Family Law Act provisions

35A.Purpose of this Part

35B.Interpretation

35C.Non-member spouse entitlement

35D.Payment of lump sum

35E.Reduction in member's entitlement

35F.Lump sum not payable to person who has received benefit under splitting instrument

35G.Board to comply with Commonwealth requirements

35H.Provision of information

26.Amendment of section 47A—Confidentiality

27.Amendment of section 49—Regulations

Part 6—Amendment of Superannuation Act 1988

28.Amendment of section 20B—Payment of benefits

29.Amendment of section 32—Death of contributor

30.Amendment of section 38—Death of contributor


31.Insertion of Part 5A

Part 5A—Family Law Act provisions

Division 1—Preliminary

43AB.Purpose of this Part

43AC.Interpretation

43AD.Value of superannuation interest

43AE.Board to comply with Commonwealth requirements

43AF.Reduction in member's entitlement

43AG.Benefit not payable to spouse on death of member 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

32.Amendment of section 55—Confidentiality

33.Amendment of section 59—Regulations


The Parliament of South Australia enacts as follows:


Part 1—Preliminary

Short title

1. This Act may be cited as the Statutes Amendment (Division of Superannuation Benefits Under Family Law Act) Act 2003.

Commencement

2. (1) This Act will come into operation on a day to be fixed by proclamation.

(2) Section 7(5) of the Acts Interpretation Act 1915 does not apply to the commencement of Part 2 of this Act.

Amendment provisions

3. In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Judges' Pensions Act 1971

Insertion of section 9A

4. After section 9 insert:

Spouse entitlement subject to any Family Law determination

9A. A pension is not payable to a spouse under section 6A(3), 8 or 9 in a case where section 17K applies.

Insertion of Part 2A

5. After Part 2 insert:

Part 2A—Family Law Act provisions

Purpose of this Part

17B. The purpose of this Part is to facilitate the division under the Family Law Act 1975 of the Commonwealth of interests between spouses who have separated.

Interpretation

17C. In this Part, unless the contrary intention appears—

"Commonwealth regulations" means the Family Law (Superannuation) Regulations 2001 (No. 303 as amended) of the Commonwealth;

"eligible person", in relation to an interest of a Judge under this Act, has the same meaning as in section 90MZB of the Family Law Act 1975 of the Commonwealth;

"flag lifting agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"growth phase" has the same meaning as in the Commonwealth regulations;

"Judge" includes a former Judge;

"member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"non-member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"operative time" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"payment phase" has the same meaning as in the Commonwealth regulations;

"payment split" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"relevant date" has the same meaning as in the Commonwealth regulations;

"scheme" means the pension scheme for Judges established under this Act;

"SIS Act" means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;

"Southern State Superannuation Fund" means the fund of that name established under the Southern State Superannuation Act 1994;

"splitting instrument" means—

(a)a superannuation agreement; or

(b)a flag lifting agreement that provides for a payment split; or

(c)a splitting order;

"splitting order" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"superannuation agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Accrued benefit multiple

17D. (1) For the purposes of the Commonwealth regulations, the accrued benefit multiple for a pension payable in respect of an interest of a Judge under this Act is determined as follows:

(a)if the Judge has not attained the age of 60 years at the prescribed date but will have served for at least 15 years on attaining that age, the accrued benefit multiple is determined in accordance with the following formula:

where—

T1is the number of days in the period beginning on the day on which the Judge joined the scheme and ending on the prescribed date

T2 is the number of days in the period beginning on the day on which the Judge joined the scheme and ending on the day on which the Judge will attain the age of 60 years;

(b)if the Judge has not attained the age of 60 years at the prescribed date and will not have served as a Judge for at least 15 years on attaining that age, the accrued benefit multiple is determined in accordance with the following formula:

where—

Pis the pension benefit payable to the Judge on retirement at the age of 60, expressed as a portion of annual salary

T1is the number of days in the period beginning on the day on which the Judge joined the scheme and ending on the prescribed date

T2is the number of days in the period beginning on the day on which the Judge joined the scheme and ending on the day on which the Judge will attain the age of 60 years;

(c)if, at the prescribed date, the Judge has attained the age of 60 years but has not yet attained the age of retirement, the accrued benefit multiple is determined in accordance with the following formula:

where—

Pis the amount of the pension benefit payable to the Judge at age of retirement, expressed as a portion of annual salary

T1is the number of days in the period beginning on the day on which the Judge joined the scheme and ending on the prescribed date

T2is the number of days in the period beginning on the day on which the Judge joined the scheme and ending on the day on which the Judge will attain the age of retirement.

(2) In addition to any other information that may be provided by the Treasurer in connection with this Part, the Treasurer may, on application, provide to an eligible person a statement of the value of an interest of a Judge, as at a particular date specified in the application.

(3) A statement under subsection (2) must relate to the capital value of the interest.

(4) For the purposes of this section, it will be assumed—

(a)that a person holding office as a Judge at the prescribed date who has not attained the age of 60 years at that date will continue to serve as a Judge until he or she attains the age of 60 years (and will then retire); and

(b)that a person holding office as a Judge at the prescribed date who has attained the age of 60 years at that date will continue to serve as a Judge until he or she attains the age of retirement.

(5) In this section—

"prescribed date" is the date that is relevant to the determination of an accrued benefit multiple in the particular circumstances.

Value of interest

17E. The regulations may prescribe methods or factors that are to be used to determine the value of any interest under this Act.

Non-member spouse's entitlement

17F. (1) Subject to subsection (2), the Treasurer must, on receipt of a splitting instrument, create an interest for the non-member spouse named in the instrument.

(2) If the member spouse has less than 10 years judicial service at the time of service of the splitting instrument on the Treasurer, the Treasurer will create the interest for the non-member spouse when—

(a)the member spouse attains 10 years of judicial service; or

(b)the member spouse ceases to be a Judge,

whichever first occurs.

(3) The form and value of the non-member spouse's interest will be determined on the basis of whether the member spouse's benefit is in the growth phase or the payment phase and by reference to the provisions of the instrument.

Entitlement where pension is in growth phase

17G. (1) If the Treasurer is served with a splitting instrument in respect of a pension that is in the growth phase, the non-member spouse is not entitled to receive his or her entitlement in the form of a pension commencing at the same time as the member spouse's pension under this Act but is, instead, (subject to section 17F(2)) entitled to have a lump sum determined under this section paid on his or her behalf in accordance with this Part.

(2) The lump sum will be determined by applying the methods and factors prescribed by the regulations to the non-member spouse's notional pension.

(3) The amount of the notional pension of a non-member spouse will be determined—


(a)where the splitting instrument specifies a percentage of the member spouse's pension for the purposes of the split—by applying that percentage split to the member spouse's pension interest under this Act based on the relevant accrued benefit multiple;

(b)where the splitting instrument specifies a lump sum amount for the purposes of the split—by applying the methods and factors prescribed by the regulations to the amount of the lump sum.

(4) The valuation factors used for the purposes of this section must take into account the contingencies that are relevant to the payment of a pension under this Act to the member spouse.

(5) The value of a lump sum payable to a non-member spouse under this section must not exceed the value of the member spouse's interest.

Entitlement where pension is in payment phase

17H. (1) If the Treasurer is served with a splitting instrument in respect of a pension that is in the payment phase, the Treasurer must split the pension between the member spouse and non-member spouse in accordance with the instrument, with effect from the operative time.

(2) The non-member spouse may, by notice in writing given to the Treasurer within the prescribed period, elect to have the whole of his or her pension commuted to a lump sum.

(3) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement under subsection (1).

(4) If the non-member spouse dies while entitled to, or in receipt of, a pension under this section, the non-member spouse's legal representative may, by notice in writing given to the Treasurer within the prescribed period, elect to have the pension commuted to a lump sum.

(5) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement.

(6) In this section—

"legal representative", in relation to a deceased non-member spouse, means a person—

(a)holding office as executor of the will of the deceased non-member spouse where probate of the will has been granted or resealed in South Australia or any other State or a Territory; or

(b)holding office in South Australia or any other State or a Territory as administrator of the estate of the deceased non-member spouse.


Payment of non-member spouse's entitlement

17I. (1) If the interest of a non-member spouse created under this Part after service of a splitting instrument or after the commutation of a pension payable to the non‑member spouse is a lump sum, the interest will, according to the election of the non‑member spouse—

(a)be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or

(b)be rolled over to the credit of the non-member spouse in an account (which may need to be established) in the name of the non-member spouse in the Southern State Superannuation Fund; or

(c)be rolled over or transferred to some other superannuation fund or scheme approved by the Treasurer.

(2) The Treasurer must take the action required under subsection (1) within 28 days after receiving the relevant election.

(3) However, if an election is not made by the non-member spouse before the end of 28 days after the Treasurer gives notice to the non-member spouse in the manner contemplated by the regulations, the Treasurer must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (1)(b).

(4) If the interest of a non-member spouse created under this Part after service of a splitting instrument is in the form of a pension (and the non-member spouse has not directed that the pension be commuted to a lump sum), the Treasurer must split the relevant pension within the prescribed period after receipt of the splitting instrument (with effect from the relevant date), and begin to make the payments in accordance with the regulations.

Reduction in Judge's entitlement

17J. Despite the other provisions of this Act, if a payment split is payable with respect to the interest of a Judge, there is a corresponding reduction in the entitlement of the Judge under this Act.

Pension not payable to spouse on death of Judge if split has occurred

17K. If a Judge dies and is survived by a spouse who has received, is receiving or is entitled to receive a benefit under a splitting instrument, the spouse is not entitled to a benefit under this Act in relation to the deceased Judge (except in accordance with the instrument).

Treasurer to comply with Commonwealth requirements

17L. The Treasurer must comply with the requirements imposed under Part VIIIB of the Family Law Act 1975 of the Commonwealth as if the Treasurer were the trustee of the scheme.

Payment of benefit

17M. (1) An amount payable under this Part is payable by the Treasurer from the Consolidated Account (which is appropriated to the necessary extent) or from a special deposit account established by the Treasurer for that purpose.


(2) In this section—

"special deposit account" means a special deposit account established under section 8 of the Public Finance and Audit Act 1987.

Regulations

17N. (1) The Governor may make such regulations as are contemplated by this Part or are necessary or expedient for the purposes of this Part.

(2) Without limiting subsection (1), the regulations may—

(a)modify the operation of any provision of this Act in prescribed circumstances in order to ensure that this Act operates in a manner that is consistent with, and complementary to, the requirements of the Family Law Act 1975 of the Commonwealth;

(b)prescribe fees payable to the Treasurer in respect of matters in relation to which fees may be charged under regulation 59 of the Commonwealth regulations.

(3) Any fee prescribed under subsection (2)(b) that is payable by a member spouse or non-member spouse and has not been paid within 1 month of the amount becoming payable may be deducted by the Treasurer—

(a)if the outstanding fee is payable by the non-member spouse—from an interest that is to be rolled over or transferred to a fund for the benefit of the non‑member spouse; or

(b)in any case—

(i)from a pension payable to the person in default under this Act; or

(ii)from any other benefit payable to the person in default under this Act.

Part 3—Amendment of Parliamentary Superannuation Act 1974

Insertion of Part 4A

6. After Part 4 insert:

Part 4A—Family Law Act provisions

Purpose of this Part

23A. The purpose of this Part is to facilitate the division under the Family Law Act 1975 of the Commonwealth of superannuation interests between spouses who have separated.

Interpretation

23B. In this Part, unless the contrary intention appears—

"Commonwealth regulations" means the Family Law (Superannuation) Regulations 2001 (No. 303 as amended) of the Commonwealth;

"eligible person", in relation to the superannuation interest of a member, has the same meaning as in section 90MZB of the Family Law Act 1975 of the Commonwealth;

"flag lifting agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"growth phase" has the same meaning as in the Commonwealth regulations;

"member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"non-member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"operative time" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"payment phase" has the same meaning as in the Commonwealth regulations;

"payment split" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"relevant date" has the same meaning as in the Commonwealth regulations;

"scheme" means the superannuation scheme for members under this Act;

"SIS Act" means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;

"Southern State Superannuation Fund" means the fund of that name established under the Southern State Superannuation Act 1994;

"splitting instrument" means—

(a)a superannuation agreement; or

(b)a flag lifting agreement that provides for a payment split; or

(c)a splitting order;

"splitting order" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"superannuation agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Accrued benefit multiple

23C. (1) For the purposes of the Commonwealth regulations, the accrued benefit multiple for a pension payable in respect of a superannuation interest of a member is determined as follows:


(a)if the member has not attained 6 years of service at the prescribed date:

where—

T1is the number of days in the period beginning on the day on which the member joined the scheme and ending on the prescribed date

T2is the number of days in the period beginning on the day on which the member joined the scheme and ending on the sixth anniversary of that day;

(b)if the member has attained 6 years of service at the prescribed date:

where—

T1is the number of days in the period beginning on the day immediately following the sixth anniversary of the day on which the member joined the scheme and ending on the prescribed date or on the 14 year 1 month anniversary of the day on which the member attained 6 years of service, whichever is the earlier

T2is the number of days in the period beginning on the day immediately following the sixth anniversary of the day on which the member joined the scheme and ending on the 14 year 1 month anniversary of the day on which the member attained 6 years of service.

(2) In addition to any other information that may be provided by the Board in connection with this Part, the Board may, on application, provide to an eligible person a statement of the value of a superannuation interest of a member spouse, as at a particular date specified in the application.

(3) A statement under subsection (2) must relate to the capital value of the superannuation interest.

(4) In this section—

"prescribed date" is the date that is relevant to the determination of an accrued benefit multiple in the particular circumstances.

Value of superannuation interest

23D. The regulations may prescribe methods or factors that are to be used to determine the gross value of any superannuation interest.


Non-member spouse's entitlement

23E. (1) Subject to subsection (2), the Board must, on service of a splitting instrument, create an interest for the non-member spouse named in the instrument.

(2) If the member spouse has less than 6 years service at the time of service of the splitting instrument on the Board, the Board will create the interest for the non-member spouse when—

(a)the member spouse attains 6 years of service; or

(b)the member spouse ceases to be a member of the Parliament,

whichever first occurs.

(3) The form and value of the non-member spouse's interest will be determined on the basis of whether the superannuation interest is in the growth phase or the payment phase, by the nature of the member spouse's superannuation interest, and by reference to the provisions of the instrument.

Non-member spouse's entitlement where pension is in growth phase

23F. (1) If the Board is served with a splitting instrument in respect of a pension that is in the growth phase, the non-member spouse is not entitled to receive his or her entitlement in the form of a pension commencing at the same time as the member spouse's pension under this Act but is, instead, (subject to section 23E(2)) entitled to have a lump sum determined under this section paid on his or her behalf in accordance with this Part.

(2) The lump sum will be determined by applying the methods and factors prescribed by the regulations to the non-member spouse's notional pension.

(3) The amount of the notional pension of a non-member spouse will be determined—

(a)where the splitting instrument specifies a percentage of the member spouse's pension for the purposes of the split—by applying that percentage split to the member spouse's superannuation entitlement based on the relevant accrued benefit multiple;

(b)where the splitting instrument specifies a lump sum amount for the purposes of the split—by applying the methods and factors prescribed by the regulations to the amount of the lump sum.

(4) The valuation factors used for the purposes of this section must take into account the contingencies that are relevant to the payment of a retirement pension under this Act to the member spouse.

(5) The value of a lump sum payable to a non-member spouse under this section must not exceed the value of the member spouse's interest.


Non-member spouse's entitlement where pension is in payment phase

23G. (1) If the Board is served with a splitting instrument in respect of a pension that is in the payment phase, the Board must divide the pension between the member spouse and non-member spouse in accordance with the instrument, with effect from the operative time.

(2) The non-member spouse may, by notice in writing given to the Board within the prescribed period, elect to have the whole of his or her pension commuted to a lump sum.

(3) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement under subsection (1).

(4) If the non‑member spouse is taking his or her entitlement as a pension and there is a reduction in the member spouse's pension under this Act, there will be a corresponding reduction in the non-member spouse's pension.

(5) If the non-member spouse is taking his or her entitlement as a pension and the payment of the member spouse's pension ceases, there will be a corresponding cessation in the payment of the non-member spouse's pension.

(6) If the non-member spouse dies while entitled to, or in receipt of, a pension under this section, the non-member spouse's legal representative may, by notice in writing given to the Board within the prescribed period, elect to have the pension commuted to a lump sum.

(7) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement.

(8) In this section—

"legal representative", in relation to a deceased non-member spouse, means a person—

(a)holding office as executor of the will of the deceased non-member spouse where probate of the will has been granted or resealed in South Australia or any other State or a Territory; or

(b)holding office in South Australia or any other State or a Territory as administrator of the estate of the deceased non-member spouse.

Payment of non-member spouse's entitlement

23H. (1) If the interest of a non-member spouse created under this Part after service of a splitting instrument or after the commutation of a pension payable to the non‑member spouse is a lump sum, the interest will, according to the election of the non‑member spouse—

(a)be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or

(b)be rolled over to the credit of the non-member spouse in an account (which may need to be established) in the name of the non-member spouse in the Southern State Superannuation Fund; or

(c)be rolled over or transferred to some other superannuation fund or scheme approved by the Board.

(2) The Board must take the action required under subsection (1) within 28 days after receiving the relevant election.

(3) However, if an election is not made by the non-member spouse before the end of 28 days after the Board gives notice to the non-member spouse in the manner contemplated by the regulations, the Board must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (1)(b).

(4) If the interest of a non-member spouse created under this Part after service of a splitting instrument is a pension (and the non-member spouse has not directed that the pension be commuted to a lump sum), the Board must split the relevant pension within the prescribed period after receipt of the splitting instrument (with effect from the relevant date), and begin to make the payments in accordance with the regulations (subject to any cessation of payment of the member spouse's pension).

Reduction in member's entitlement

23I. (1) Despite the other provisions of this Act, if a payment split is payable with respect to the superannuation interest of a member, there is a corresponding reduction in the entitlement of the member under this Act.

(2) A reduction in the entitlement of a member will be given effect as follows:

(a)the member's contribution account will be subject to a charge that takes effect by reducing the balance of that account at the operative time (insofar as a balance exists) by a percentage equal to the percentage that the non-member's share in the relevant superannuation interest bears to the total value of the member's accrued superannuation benefit at the operative time (and any method or factor prescribed under section 23D that is relevant to determining the value of that benefit will be applied); and

(b)except with respect to a pension in the payment phase, any entitlement in respect of a pension in the growth phase and any component in the nature of an employer-funded component of a superannuation benefit payable to the member after the creation of the relevant interest for the benefit of the non-member spouse will, immediately before the time of payment, or as prescribed by the regulations, be subject to a reduction in the manner prescribed by the regulations; and

(c)any pension in the payment phase will be reduced in accordance with the split (or the value of the split) under the relevant splitting agreement.

(3) A reduction in the entitlement of a member will not extend to any superannuation benefit that is not a splittable payment under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

(4) If 2 or more reductions must be made with respect to an entitlement of a member because 2 or more splitting instruments have been served on the Board, the Board may determine to apply the reductions separately, or in aggregate.


Pension not payable to spouse on death of member if split has occurred

23J. If a member or former member dies and is survived by a spouse who has received, is receiving or is entitled to receive a benefit under a splitting instrument, the spouse is not entitled to a benefit under this Act in respect of the deceased member (except in accordance with the instrument) and will not be considered to be a spouse of the deceased person for the purposes of section 36A (if relevant).

Board to comply with Commonwealth requirements

23K. The Board must comply with the requirements imposed on the Board under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Insertion of section 26AAA

7. Immediately after section 26 insert:

Spouse entitlement subject to any Family Law determination

26AAA. A surviving spouse will not be entitled to a benefit under this Division where section 23J applies to the spouse and the amount of any benefit payable to any other spouse must take into account any reduction that has been made under section 23I.

Insertion of section 39A

8. After section 39 insert:

Confidentiality

39A. (1) A member or former member of the Board or the board of directors of the Superannuation Funds Management Corporation of South Australia, or a person employed or formerly employed in the administration of this Act, must not divulge information as to the entitlements or benefits of any person under this Act except—

(a)as required by or under any Act of the State or the Commonwealth; or

(b)to, or with the consent of, that person; or

(c)to an employee of either House of Parliament of the State for purposes related to the administration of this Act; or

(d)to any other person for purposes related to the administration of this Act; or

(e)as may be required by a court.

Maximum penalty:$10 000.

(2) A member or former member of the Board or the board of directors of the Superannuation Funds Management Corporation of South Australia, or a person employed or formerly employed in the administration of this Act, must not divulge information if to do so is inconsistent with a requirement imposed on the trustee of an eligible superannuation plan under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Maximum penalty:$10 000.


(3) This section does not prevent the disclosure of statistical or other information related to members generally or to a class of members rather than to an individual member.

Amendment of section 40—Regulations

9. Section 40—after its present contents (now to be designated as subsection (1)) insert:

(2) Without limiting subsection (1), the regulations may—

(a)make any provision that is necessary in view of the provisions of Part VIIIB of the Family Law Act 1975 of the Commonwealth, including by modifying the operation of any provision of this Act in prescribed circumstances in order to ensure that this Act operates in a manner that is consistent with, and complementary to, the requirements of that Commonwealth Act;

(b)prescribe fees payable to the Board in respect of matters in relation to which fees may be charged under regulation 59 of the Commonwealth regulations (as defined in Part 4A).

(3) Any fee prescribed under subsection (2)(b) that is payable by a member or spouse and has not been paid within 1 month of the amount becoming payable may be deducted by the Board—

(a)if the outstanding fee is payable by a member—

(i)from the member's contribution account; or

(ii)from any benefit payable to the member under this Act; or

(b)if the outstanding fee is payable by the spouse of a member—

(i)from any interest that is to be rolled over or transferred to a fund for the benefit of the spouse; or

(ii)from any other benefit payable to the spouse under this Act.

(4) In subsection (3)—

"spouse" includes former spouse.

Part 4—Amendment of Police Superannuation Act 1990

Amendment of section 26—Death of contributor

10. Section 26—after subsection (2) insert:

(2a) However, a surviving spouse will not be entitled to a benefit under this section if section 38K applies to the spouse.


Amendment of section 32—Benefits payable on contributor's death

11. Section 32—after subsection (1a) insert:

(1b) However, a surviving spouse will not be entitled to a benefit under this section if section 38K applies to the spouse and the amount of any benefit payable to a person must take into account any reduction that has been made under section 38J.

Insertion of Part 5B

12. After Part 5A insert:

Part 5B—Family Law Act provisions

Division 1—Preliminary

Purpose of this Part

38F. The purpose of this Part is to facilitate the division under the Family Law Act 1975 of the Commonwealth of superannuation interests between spouses who have separated.

Interpretation

38G. In this Part, unless the contrary intention appears—

"age of retirement" has the meaning assigned by the regulations;

"Commonwealth regulations" means the Family Law (Superannuation) Regulations 2001 (No. 303 as amended) of the Commonwealth;

"defined benefit interest" means—

(a)a benefit or superannuation interest that is a function of salary and membership or service; or

(b)an interest brought within the ambit of this definition by the regulations;

"eligible person", in relation to a superannuation interest of a contributor, has the same meaning as in section 90MZB of the Family Law Act 1975 of the Commonwealth;

"flag lifting agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"growth phase" has the same meaning as in the Commonwealth regulations;

"member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"non-member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"operative time" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"payment phase" has the same meaning as in the Commonwealth regulations;

"payment split" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"relevant date" has the same meaning as in the Commonwealth regulations;

"SIS Act" means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;

"Southern State Superannuation Fund" means the fund of that name established under the Southern State Superannuation Act 1994;

"splitting instrument" means—

(a)a superannuation agreement; or

(b)a flag lifting agreement that provides for a payment split; or

(c)a splitting order;

"splitting order" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"superannuation agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Value of superannuation interest

38H. The regulations may prescribe methods or factors that are to be used to determine the gross value of the following superannuation interests:

(a)a defined benefit interest;

(b)a superannuation interest that has been preserved following the cessation of employment;

(c)any other interest of a prescribed kind.

Board to comply with Commonwealth requirements

38I. The Board must comply with the requirements imposed on the Board under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Reduction in contributor's entitlement

38J. (1) Despite the other provisions of this Act, if a payment split is payable with respect to the superannuation interest of a contributor, there is a corresponding reduction in the entitlement of the contributor under this Act.


(2) A reduction in the entitlement of a contributor will be given effect as follows:

(a)the contributor's contribution account will be subject to a charge that takes effect by reducing the balance of that account at the operative time (insofar as a balance exists) by a percentage equal to the percentage that the non-member spouse's share in the relevant superannuation interest bears to the total value of the contributor's accrued superannuation benefit at the operative time (and any method or factor prescribed under section 38H that is relevant to determining the value of that benefit will be applied); and

(b)except with respect to a pension in the payment phase, any entitlement in respect of a pension in the growth phase and any employer-funded component of a superannuation benefit payable to the contributor after the creation of the relevant interest for the benefit of the non-member spouse will, immediately before the time of payment, or as prescribed by the regulations, be subject to a reduction that takes effect by reducing—

(i)the number of contribution points; and

(ii)factor "M" in a formula under this Act (insofar as this is relevant to a determination of an employer-funded component in the particular case),

to the extent necessary to take into account, to its full extent, the employer-funded component of the value of the non-member spouse's interest (and any method or factor prescribed under section 38H that is relevant to making such a reduction will be applied); and

(c)any pension in the payment phase will be reduced in accordance with the split (or the value of the split) under the relevant splitting instrument.

(3) A reduction in the entitlement of a contributor will not extend to any superannuation benefit that is not a splittable payment under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

(4) A reduction in contribution points in connection with the operation of this Part does not affect the aggregate of contribution points that applies under section 18.

(5) If 2 or more reductions must be made with respect to an entitlement of a contributor because 2 or more splitting instruments have been served on the Board, the Board may determine to apply the reductions separately, or in aggregate.

Benefit not payable to spouse on death of member if split has occurred

38K. If a contributor dies and is survived by a spouse who has received, is receiving or is entitled to receive a benefit under a splitting instrument, the spouse is not entitled to a benefit under this Act in relation to the deceased contributor (except in accordance with the instrument) and will not be considered to be a spouse of the contributor for the purposes of section 41 (if relevant).


Division 2—New scheme contributors

Application of Division

38L. This Division applies only to the division of superannuation interests in respect of member spouses who are new scheme contributors.

Accrued benefit multiple

38M. (1) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a lump sum is the multiple of annual salary that the member spouse would be entitled to receive at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) with the member spouse's accrued contribution points and contribution period as at that day.

(2) In addition to any other information that may be provided by the Board in connection with this Part, the Board may, on application, provide to an eligible person a statement of the value of a superannuation interest of a member spouse who is a new scheme contributor, as at a particular date specified in the application.

(3) In this section—

"prescribed date" is that date that is relevant to the determination of an accrued benefit multiple in the particular circumstances.

Non-member spouse's entitlement

38N. (1) The Board must, on service of a splitting instrument in respect of a lump sum benefit, create an interest for the non-member spouse named in the instrument in accordance with the provisions of the instrument, with effect from the operative time.

(2) The value of the non-member spouse's interest will be determined by reference to the provisions of the instrument but in any event may not exceed the value of the member spouse's interest.

(3) The interest of a non-member spouse under subsection (1) will, according to the election of the non-member spouse—

(a)be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or

(b)be rolled over to the credit of the non-member spouse in an account (which may need to be established) in the name of the non-member spouse in the Southern State Superannuation Fund; or

(c)be rolled over or transferred to some other superannuation fund or scheme approved by the Board.

(3) The Board must take the action required under subsection (3) within 28 days after receiving the relevant election.

(4) However, if an election is not made by the non-member spouse before the end of 28 days after the Board gives notice to the non-member spouse in the manner contemplated by the regulations, the Board must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (3)(b).

Division 3—Old scheme contributors

Application of Division

38O. This Division applies only to the division of superannuation interests in respect of member spouses who are old scheme contributors.

Accrued benefit multiple

38P. (1) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a pension is the percentage of annual salary that the member spouse would be entitled to receive as a pension at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) with the member spouse's accrued contribution points and contribution period as at that day.

(2) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a lump sum that is a defined benefit interest is the multiple of annual salary that the member spouse would be entitled to receive at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) and was taking his or her entitlement under the Act on that day.

(3) In addition to any other information that may be provided by the Board in connection with this Part, the Board may, on application, provide to an eligible person a statement of the value of a superannuation interest of a member spouse who is an old scheme contributor, as at a particular date specified in the application.

(4) In the case of a superannuation interest payable as a pension, a statement under subsection (3) must relate to the capital value of the superannuation interest.

(5) The regulations may prescribe methods or factors that are to be used to determine the capital value of a superannuation interest under subsection (4).

(6) In this section—

"prescribed date" is the date that is relevant to the determination of an accrued benefit multiple in the particular circumstances.

Non-member spouse's entitlement

38Q. (1) The Board must, on service of a splitting instrument, create an interest for the non-member spouse named in the instrument, with effect from the operative time.

(2) The form and value of the non-member spouse's interest will be determined on the basis of whether the superannuation interest is in the growth phase or the payment phase, by the nature of the member spouse's superannuation interest, and by reference to the provisions of the instrument.

Non-member spouse's entitlement where pension is in growth phase

38R. (1) If the Board is served with a splitting instrument in respect of a pension that is in the growth phase, the non-member spouse is not entitled to receive his or her entitlement in the form of a pension commencing at the termination of the member spouse's period of service but is, instead, entitled to have a lump sum determined under this section paid on his or her behalf in accordance with this Part.

(2) The lump sum will be determined by applying the methods and factors prescribed by the regulations to the non-member spouse's notional pension.

(3) The amount of the notional pension of a non-member spouse will be determined—

(a)where the splitting instrument specifies a percentage of the member spouse's pension for the percentage of the split—by applying that percentage split to the member's superannuation entitlement based on the relevant accrued benefit multiple;

(b)where the splitting instrument specifies a lump sum for the purposes of the split—by applying the methods and factors prescribed by the regulations to the amount of the lump sum.

(4) The valuation factors used for the purposes of this section must take into account the contingencies that are relevant to the payment of a retirement pension under this Act to the member spouse.

(5) The value of a lump sum payable to a non-member spouse under this section must not exceed the value of the member spouse's interest.

Non-member spouse's entitlement where pension is in payment phase

38S. (1) If the Board is served with a splitting instrument in respect of a pension that is in the payment phase, the Board must divide the pension between the member spouse and non-member spouse in accordance with the instrument, with effect from the operative time.

(2) The non-member spouse may, by notice in writing given to the Board within the prescribed period, elect to have the whole of his or her pension commuted to a lump sum.

(3) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement under subsection (1).

(4) If the non-member spouse is taking his or her entitlement as a pension and there is a reduction in the member spouse's pension under this Act, there will be a corresponding reduction in the non-member spouse's pension.

(5) If the non-member spouse is taking his or her entitlement as a pension and the payment of the member spouse's pension ceases, there will be a corresponding cessation in the payment of the non-member spouse's pension.

(6) If the non-member spouse dies while entitled to, or in receipt of, a pension under this section, the non-member spouse's legal representative may, by notice in writing given to the Board within the prescribed period, elect to have the pension commuted to a lump sum.

(7) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement.


(8) In this section—

"legal representative", in relation to a deceased non-member spouse, means a person—

(a)holding office as executor of the will of the deceased non-member spouse where probate of the will has been granted or resealed in South Australia or any other State or a Territory; or

(b)holding office in South Australia or any other State or a Territory as administrator of the estate of the deceased non-member spouse.

Payment of non-member spouse's entitlement

38T. (1) If the interest of a non-member spouse created under this Part after service of a splitting instrument or after the commutation of a pension payable to the non‑member spouse is a lump sum, the interest will, according to the election of the non‑member spouse—

(a)be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or

(b)be rolled over to the credit of the non-member spouse in an account (which may need to be established) in the name of the non-member spouse in the Southern State Superannuation Fund; or

(c)be rolled over or transferred to some other superannuation fund or scheme approved by the Board.

(2) The Board must take the action required under subsection (1) within 28 days after receiving the relevant election.

(3) However, if an election is not made by the non-member spouse before the end of 28 days after the Board gives notice to the non-member spouse in the manner contemplated by the regulations, the Board must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (1)(b).

(4) If the interest of a non-member spouse created under this Part after service of a splitting instrument is a pension (and the non-member spouse has not directed that the pension be commuted to a lump sum), the Board must split the relevant pension within the prescribed period after receipt of the splitting instrument (with effect from the relevant date), and begin to make the payments in accordance with the regulations (subject to any cessation of the payment of the member spouse's pension).


Amendment of section 49—Confidentiality

13. Section 49—after subsection (1) insert:

(1a) A member or former member of the Board or the board of directors of the Superannuation Funds Management Corporation of South Australia, or a person employed or formerly employed in the administration of this Act, must not divulge information if to do so is inconsistent with a requirement imposed on the trustee of an eligible superannuation plan under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Maximum penalty:$10 000.

Amendment of section 52—Regulations

14. Section 52—after subsection (2) insert:

(3) Without limiting subsection (1), the regulations may—

(a)make any provision that is necessary in view of the provisions of Part VIIIB of the Family Law Act 1975 of the Commonwealth, including by modifying the operation of any provision of this Act in prescribed circumstances in order to ensure that this Act operates in a manner that is consistent with, and complementary to, the requirements of that Commonwealth Act;

(b)prescribe fees payable to the Board in respect of matters in relation to which fees may be charged under regulation 59 of the Commonwealth regulations (as defined in Part 5B).

(4) Any fee prescribed under subsection (3)(b) that is payable by a contributor or spouse and has not been paid within 1 month of the amount becoming payable may be deducted by the Board—

(a)if the outstanding fee is payable by the contributor—

(i)from the contributor's contribution account; or

(ii)from any benefit payable to the contributor under this Act;

(b)if the outstanding fee is payable by the spouse of a contributor—

(i)from any interest that is to be rolled over or transferred to a fund for the benefit of the spouse; or

(ii)from any other benefit payable to the spouse under this Act.

(5) In subsection (4)—

"spouse" includes former spouse.


Part 5—Amendment of Southern State Superannuation Act 1994

Amendment of section 3—Interpretation

15. (1) Section 3(1), definition of "rollover account"—delete the definition and substitute:

"rollover account" means an account established and maintained by the Board as a rollover account in accordance with the requirements of this Act;

(2)Section 3—after subsection (7) insert:

(8) For the purposes of this Act, an amount of money rolled over for payment into the Fund under the provisions of another Act that operate in conjunction with Part VIIIB of the Family Law Act 1975 of the Commonwealth will, subject to this Act, be taken to be money rolled over from a superannuation scheme to the Triple S scheme.

Amendment of section 7—Contribution and rollover accounts

16. Section 7—after subsection (2b) insert:

(3) The Board may, in an appropriate case, debit against—

(a)a member's contribution account; or

(b)a member's rollover account,

(or both), an administrative charge fixed by the Board.

(4) The Board may, for the purposes of subsection (3), fix different charges depending on the balance of members' accounts or any other relevant factor.

Amendment of section 12—Payment of benefits

17. Section 12(1)—delete "a spouse of a deceased member or to a deceased member's estate" and substitute:

any other person who has an entitlement to the payment of a benefit or other amount with respect to a superannuation interest

Amendment of section 14—Membership

18. Section 14—after subsection (9) insert:

(10) If—

(a)a person who is not a member of the Triple S scheme has an entitlement to a lump sum under Part 5A of this Act or under the provisions of another Act that correspond to that Part; and

(b)that entitlement is to be retained in the Fund, or rolled over for payment into the Fund (as the case may be),

then that person becomes a member of the Triple S scheme by force of this subsection.


(11) The Governor may, by regulation, make any provision in connection with the operation of subsection (10), including by providing that a specified provision of this Act does not apply to a person who becomes a member of the Triple S scheme by virtue of that subsection, or applies to such a person subject to any modification prescribed by the regulations.

Amendment of section 21—Basic Invalidity/Death Insurance

19. Section 21(2)—delete "or (6)" and substitute:

, (6) or (10)

Amendment of section 22—Application for additional invalidity/death insurance

20. Section 22(1b)—delete "or (6)" and substitute:

, (6) or (10)

Amendment of section 25—Contributions

21. Section 25(2)—delete "or (6)" and substitute:

, (6) or (10)

Amendment of section 26—Payments by employers

22. Section 26—after subsection (2) insert:

(2a) This section does not apply in relation to a person who is a member of the scheme by virtue of section 14(10).

Amendment of section 27—Employer contribution accounts

23. Section 27—after subsection (10) insert:

(11) This section does not apply in relation to a person who is a member of the scheme by virtue of section 14(10).

Amendment of section 35—Death of member

24. Section 35—after subsection (2) insert:

(2a) However, a surviving spouse will not be entitled to a benefit under this section if section 35F applies to the spouse.

Insertion of Part 5A

25. After Part 5 insert:

Part 5A—Family Law Act provisions

Purpose of this Part

35A. The purpose of this Part is to facilitate the division under the Family Law Act 1975 of the Commonwealth of superannuation interests between spouses who have separated.


Interpretation

35B. In this Part, unless the contrary intention appears—

"Commonwealth regulations" means the Family Law (Superannuation) Regulations 2001 (No. 303 as amended) of the Commonwealth;

"eligible person", in relation to a superannuation interest of a member, has the same meaning as in section 90MZB of the Family Law Act 1975 of the Commonwealth;

"flag lifting agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"non-member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"operative time" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"payment split" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"splitting instrument" means—

(a)a superannuation agreement; or

(b)a flag lifting agreement that provides for a payment split; or

(c)a splitting order;

"splitting order" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"superannuation agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Non-member spouse entitlement

35C. (1) The Board must, on service of a splitting instrument, create an interest for the non-member spouse named in the instrument in accordance with the provisions of the instrument, with effect from the operative time.

(2) The value of the non-member spouse's interest will be determined by reference to the provisions of the instrument but in any event may not exceed the value of the member spouse's interest.


Payment of lump sum

35D. (1) The interest of a non-member spouse under section 35C will, according to the election of the non-member spouse—

(a)be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or

(b)be retained to the credit of the non-member spouse in an account in the name of the non-member spouse in the Fund; or

(c)be rolled over or transferred to some other superannuation fund or scheme approved by the Board.

(2) The Board must, if necessary, establish a rollover account so as to provide for the requirements of subsection (1)(b).

(3) The Board must take the action required under subsection (1) within 28 days after receiving the relevant election.

(4) However, if an election is not made by the non-member spouse before the end of 28 days after the Board gives notice to the non-member spouse in the manner contemplated by the regulations, the Board must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (1)(b).

Reduction in member's entitlement

35E. (1) Despite the other provisions of this Act, if a payment split is payable with respect to the superannuation interest of a member, there is a corresponding reduction in the entitlement of the member under this Act.

(2) A reduction in the entitlement of a member will be given effect in accordance with the scheme set out in the regulations.

(3) A reduction in the entitlement of a member will not extend to any superannuation benefit that is not a splittable payment under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

(4) If 2 or more reductions must be made with respect to an entitlement of a member because 2 or more splitting instruments have been served on the Board, the Board may determine to apply the reductions separately, or in aggregate.

Lump sum not payable to person who has received benefit under splitting instrument

35F. If a member dies and is survived by a spouse who has received, is receiving or is entitled to receive a benefit under a splitting instrument, the spouse is not entitled to a benefit under this Act in respect of the deceased member (except in accordance with the instrument) and will not be considered to be a spouse of the deceased member for the purposes of section 43 (if relevant).

Board to comply with Commonwealth requirements

35G. The Board must comply with the requirements imposed on the Board under Part VIIIB of the Family Law Act 1975 of the Commonwealth.


Provision of information

35H. In addition to any other information that may be provided by the Board in connection with this Part, the Board may, on application, provide to an eligible person a statement of the value of a superannuation interest of a member spouse, as at a particular date specified in the application.

Amendment of section 47A—Confidentiality

26. Section 47A—after subsection (1) insert:

(1a) A member or former member of the Board or the board of directors of the Superannuation Funds Management Corporation of South Australia, or a person employed or formerly employed in the administration of this Act, must not divulge information if to do so is inconsistent with a requirement imposed on the trustee of an eligible superannuation plan under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Maximum penalty:$10 000.

Amendment of section 49—Regulations

27. Section 49—after subsection (2) insert:

(3) Without limiting subsection (1), the regulations may—

(a)make any provision that is necessary in view of the provisions of Part VIIIB of the Family Law Act 1975 of the Commonwealth, including by modifying the operation of any provision of this Act in prescribed circumstances in order to ensure that this Act operates in a manner that is consistent with, and complementary to, the requirements of that Commonwealth Act;

(b)prescribe fees payable to the Board in respect of matters in relation to which fees may be charged under regulation 59 of the Commonwealth regulations (as defined under Part 5A).

(4) Any fee prescribed under subsection (3)(b) that is payable by a member or spouse and has not been paid within 1 month of the amount becoming payable may be deducted by the Board—

(a)if the outstanding fee is payable by the member—

(i)from the member's contribution account; or

(ii)from any benefit payable to the member under this Act;

(b)if the outstanding fee is payable by the spouse of a member—

(i)from any interest that is to be rolled over or transferred to a fund for the benefit of the spouse; or

(ii)from any other benefit payable to the spouse under this Act.


(5) In subsection (4)—

"spouse" includes former spouse.

Part 6—Amendment of Superannuation Act 1988

Amendment of section 20B—Payment of benefits

28. Section 20B(1)—delete "Any payment to be made under this Act to a contributor, a deceased contributor's estate, or a spouse or child of a deceased contributor, must be made" and substitute:

Any benefit or other entitlement payable under this Act must be paid

Amendment of section 32—Death of contributor

29. Section 32—after subsection (2) insert:

(2a) However, a surviving spouse will not be entitled to a benefit under this section if section 43AG applies to the spouse.

Amendment of section 38—Death of contributor

30. Section 38—after subsection (1a) insert:

(1b) However, a surviving spouse will not be entitled to a benefit under this section if section 43AG applies to the spouse and the amount of any benefit payable to a person must take into account any reduction that has been made under section 43AF.

Insertion of Part 5A

31. The following Part is inserted after Part 5 of the principal Act:

Part 5A—Family Law Act provisions

Division 1—Preliminary

Purpose of this Part

43AB. The purpose of this Part is to facilitate the division under the Family Law Act 1975 of the Commonwealth of superannuation interests between spouses who have separated.

Interpretation

43AC. In this Part, unless the contrary intention appears—

"Commonwealth regulations" means the Family Law (Superannuation) Regulations 2001 (No. 303 as amended) of the Commonwealth;

"defined benefit interest" means a benefit or superannuation interest that is a function of salary and membership or service;

"eligible person", in relation to a superannuation interest of a contributor, has the same meaning as in section 90MZB of the Family Law Act 1975 of the Commonwealth;


"flag lifting agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"growth phase" has the same meaning as in the Commonwealth regulations;

"member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"non-member spouse" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"operative time" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"payment phase" has the same meaning as in the Commonwealth regulations;

"payment split" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"relevant date" has the same meaning as in the Commonwealth regulations;

"SIS Act" means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;

"Southern State Superannuation Fund" means the fund of that name established under the Southern State Superannuation Act 1994;

"splitting instrument" means—

(a)a superannuation agreement; or

(b)a flag lifting agreement that provides for a payment split; or

(c)a splitting order;

"splitting order" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth;

"superannuation agreement" has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Value of superannuation interest

43AD. The regulations may prescribe methods or factors that are to be used to determine the gross value of the following superannuation interests:

(a)a defined benefit interest;

(b)a superannuation interest that has been preserved under section 39;

(c)any other interest of a prescribed kind.


Board to comply with Commonwealth requirements

43AE. The Board must comply with the requirements imposed on the Board under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Reduction in member's entitlement

43AF. (1) Despite the other provisions of this Act, if a payment split is payable with respect to the superannuation interest of a contributor, there is a corresponding reduction in the entitlement of the contributor under this Act.

(2) A reduction in the entitlement of a contributor will be given effect as follows:

(a)the contributor's contribution account will be subject to a charge that takes effect by reducing the balance of that account at the operative time (insofar as a balance exists) by a percentage equal to the percentage that the non-member spouse's share in the relevant superannuation interest bears to the total value of the contributor's accrued superannuation benefit at the operative time (and any method or factor prescribed under section 43AD that is relevant to determining the value of that benefit will be applied); and

(b)except with respect to a pension in the payment phase, any entitlement in respect of a pension in the growth phase and any employer-funded component of a superannuation benefit payable to the contributor after the creation of the relevant interest for the benefit of the non‑member spouse will, immediately before the time of payment, or as prescribed by the regulations, be subject to a reduction that takes effect by reducing—

(i)the number of contribution points; and

(ii)factors "M" and "n" in a formula under this Act (insofar as they are relevant to a determination of an employer-funded component in the particular case),

to the extent necessary to take into account, to its full extent, the employer-funded component of the value of the non‑member spouse's interest (and any method or factor prescribed under section 43AD that is relevant to making such a reduction will be applied); and

(c)any pension in the payment phase will be reduced in accordance with the split (or the value of the split) under the relevant splitting instrument.

(3) A reduction in the entitlement of a contributor will not extend to any superannuation benefit that is not a splittable payment under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

(4) A reduction in contribution points in connection with the operation of this Part does not affect the aggregate of contribution points that applies under section 24.

(5) If 2 or more reductions must be made with respect to an entitlement of a contributor because 2 or more splitting instruments have been served on the Board, the Board may determine to apply the reductions separately, or in aggregate.


Benefit not payable to spouse on death of member if split has occurred

43AG. If a contributor dies and is survived by a spouse who has received, is receiving, or is entitled to receive a benefit under a splitting instrument, the spouse is not entitled to a benefit under this Act in respect of the deceased contributor (except in accordance with the instrument) and will not be considered to be a spouse of the deceased contributor for the purposes of section 46 (if relevant).

Division 2—New scheme contributors

Application of Division

43AH. This Division applies only to the division of superannuation interests in respect of member spouses who are new scheme contributors.

Accrued benefit multiple

43AI. (1) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a lump sum is the multiple of annual salary that the member spouse would be entitled to receive at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) with the member spouse's accrued contribution points and contribution period as at that day.

(2) In addition to any other information that may be provided by the Board in connection with this Part, the Board may, on application, provide to an eligible person a statement of the value of a superannuation interest of a member spouse who is a new scheme contributor, as at a particular date specified in the application.

(3) In this section—

"prescribed date" is the date that is relevant to the determination of an accrued benefit multiple in the particular circumstances.

Non-member spouse's entitlement

43AJ. (1) The Board must, on service of a splitting instrument in respect of a lump sum benefit, create an interest for the non-member spouse named in the instrument in accordance with the provisions of the instrument, with effect from the operative time.

(2) The value of the non-member spouse's interest will be determined by reference to the provisions of the instrument but in any event may not exceed the value of the member spouse's interest.

(3) The interest of a non-member spouse under subsection (1) will, according to the election of the non-member spouse—

(a)be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or

(b)be rolled over to the credit of the non-member spouse in an account (which may need to be established) in the name of the non-member spouse in the Southern State Superannuation Fund; or

(c)be rolled over or transferred to some other superannuation fund or scheme approved by the Board.

(4) The Board must take the action required under subsection (3) within 28 days after receiving the relevant election.

(5) However, if an election is not made by the non-member spouse before the end of 28 days after the Board gives notice to the non-member spouse in the manner contemplated by the regulations, the Board must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (3)(b).

Division 3—Old scheme contributors

Application of Division

43AK. This Division applies only to the division of superannuation interests in respect of member spouses who are old scheme contributors.

Accrued benefit multiple

43AL. (1) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a pension is the percentage of annual salary that the member spouse would be entitled to receive as a pension at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) with the member spouse's accrued contribution points and contribution period as at that day.

(2) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a lump sum that is a defined benefit interest is the multiple of annual salary that the member spouse would be entitled to receive at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) and was taking his or her entitlement under the Act on that day.

(3) In addition to any other information that may be provided by the Board in connection with this Part, the Board may, on application, provide to an eligible person a statement of the value of a superannuation interest of a member spouse who is an old scheme contributor, as at a particular date specified in the application.

(4) In the case of a superannuation interest payable as a pension, a statement under subsection (3) must relate to the capital value of the superannuation interest.

(5) The regulations may prescribe methods or factors that are to be used to determine the capital value of a superannuation interest under subsection (4).

(6) In this section—

"prescribed date" is the date that is relevant to the determination of an accrued benefit multiple in the particular circumstances.

Non-member spouse's entitlement

43AM. (1) The Board must, on service of a splitting instrument, create an interest for the non-member spouse named in the instrument, with effect from the operative time.


(2) The form and value of the non-member spouse's interest will be determined on the basis of whether the superannuation interest is in the growth phase or the payment phase, by the nature of the member spouse's superannuation interest, and by reference to the provisions of the instrument.

Non-member spouse's entitlement where pension is in growth phase

43AN. (1) If the Board is served with a splitting instrument in respect of a pension that is in the growth phase, the non-member spouse is not entitled to receive his or her entitlement in the form of a pension commencing at the same time as the member spouse's pension under this Act but is, instead, entitled to have a lump sum determined under this section paid on his or her behalf in accordance with this Part.

(2) The lump sum will be determined by applying the methods and factors prescribed by the regulations to the non-member spouse's notional pension.

(3) The amount of the notional pension of a non-member spouse will be determined—

(a)where the splitting instrument specifies a percentage of the member spouse's pension for the purposes of the split—by applying that percentage split to the member spouse's superannuation entitlement based on the relevant accrued benefit multiple;

(b)where the splitting instrument specifies a lump sum amount for the purposes of the split—by applying the methods and factors prescribed by the regulations to the amount of the lump sum.

(4) The valuation factors used for the purposes of this section must take into account the contingencies that are relevant to the payment of a retirement pension under this Act to the member spouse.

(5) The value of a lump sum payable to a non-member spouse under this section must not exceed the value of the member spouse's interest.

Non-member spouse's entitlement where pension is in payment phase

43AO. (1) If the Board is served with a splitting instrument in respect of a pension that is in the payment phase, the Board must split the pension between the member spouse and non-member spouse in accordance with the instrument, with effect from the operative time.

(2) The non-member spouse may, by notice in writing given to the Board within the prescribed period, elect to have the whole of his or her pension commuted to a lump sum.

(3) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement under subsection (1).

(4) If the non-member spouse is taking his or her entitlement as a pension and there is a reduction in the member spouse's pension under this Act, there will be a corresponding reduction in the non-member spouse's pension.


(5) If the non-member spouse is taking his or her entitlement as a pension and the payment of the member spouse's pension ceases, there will be a corresponding cessation in the payment of the non-member spouse's pension.

(6) If the non-member spouse dies while entitled to, or in receipt of, a pension under this section, the non-member spouse's legal representative may, by notice in writing given to the Board within the prescribed period, elect to have the pension commuted to a lump sum.

(7) The lump sum will be determined by applying the factors prescribed by the regulations to the non-member spouse's entitlement.

(8) In this section—

"legal representative", in relation to a deceased non-member spouse, means a person—

(a)holding office as executor of the will of the deceased non-member spouse where probate of the will has been granted or resealed in South Australia or any other State or a Territory; or

(b)holding office in South Australia or any other State or a Territory as administrator of the estate of the deceased non-member spouse.

Payment of non-member spouse's entitlement

43AP. (1) If the interest of a non-member spouse created under this Division after service of a splitting instrument or after the commutation of a pension payable to the non‑member spouse is a lump sum, the interest will, according to the election of the non‑member spouse—

(a)be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or

(b)be rolled over to the credit of the non-member spouse in an account (which may need to be established) in the name of the non-member spouse in the Southern State Superannuation Fund; or

(c)be rolled over or transferred to some other superannuation fund or scheme approved by the Board.

(2) The Board must take the action required under subsection (1) within 28 days after receiving the relevant election.

(3) However, if an election is not made by the non-member spouse before the end of 28 days after the Board gives notice to the non-member spouse in the manner contemplated by the regulations, the Board must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (1)(b).


(4) If the interest of a non-member spouse created under this Division after service of a splitting instrument is a pension (and the non-member spouse has not directed that the pension be commuted to a lump sum), the Board must split the relevant pension within the prescribed period after receipt of the splitting instrument (with effect from the relevant date), and begin to make the payments in accordance with the regulations (subject to any cessation of the payment of the member spouse's pension).

Amendment of section 55—Confidentiality

32. Section 55—after subsection (1) insert:

(1a) A member or former member of the Board or the board of directors of the Superannuation Funds Management Corporation of South Australia, or a person employed or formerly employed in the administration of this Act, must not divulge information if to do so is inconsistent with a requirement imposed on the trustee of an eligible superannuation plan under Part VIIIB of the Family Law Act 1975 of the Commonwealth.

Maximum penalty:$10 000.

Amendment of section 59—Regulations

33. (1) Section 59(1a)—after paragraph (b) insert:

(c)make any provision that is necessary in view of the provisions of Part VIIIB of the Family Law Act 1975 of the Commonwealth, including by modifying the operation of any provision of this Act in prescribed circumstances in order to ensure that this Act operates in a manner that is consistent with, and complementary to, the requirements of that Commonwealth Act;

(d)prescribe fees payable to the Board in respect of matters in relation to which fees may be charged under regulation 59 of the Commonwealth regulations (as defined in Part 5A).

(2)Section 59—after subsection (2) insert:

(3) Any fee prescribed under subsection (1a)(d) that is payable by a contributor or spouse and has not been paid within 1 month of the amount becoming payable may be deducted by the Board—

(a)if the outstanding fee is payable by the contributor—

(i)from the contributor's contribution account; or

(ii)from any benefit payable to the contributor under this Act;

(b)if the outstanding fee is payable by the spouse of a contributor—

(i)from any interest that is to be rolled over or transferred to a fund for the benefit of the spouse; or

(ii)from any other benefit payable to the spouse under this Act.


(4) In subsection (3)—

"spouse" includes former spouse.

 


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