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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Fund Selection and Other
Superannuation Matters) Bill 2020
A BILL FOR
An Act to amend the
Southern
State Superannuation Act 2009
and the
Superannuation
Act 1988
.
Contents
Part 2—Amendment
of Southern State Superannuation Act 2009
4Amendment of section
3—Interpretation
5Amendment of section 5—Employer
contribution percentage
6Amendment of section 15—Other accounts to
be kept by Board
7Amendment of section 19—Membership of
scheme
8Amendment of section
20—Contributions
9Amendment of section 21—Payments by
employers
Part 3A—Portability and fund
selection
21CMember may direct employer
contributions to other fund
21FMatters affecting eligibility of
funds
21HPerson may elect
to return to Triple S scheme
21JEmployer to
report to Board
11Amendment of section 24—Employer
benefits and contributions if person on leave without pay
12Amendment of section
28—Confidentiality
13Amendment of section
30—Regulations
14Amendment of Schedule 1—Transitional
provisions
Part 3—Amendment
of Superannuation Act 1988
15Amendment of section 8—Board's
membership
17Amendment of section
10—Staff of Board
18Amendment of section
21—Reports
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Fund Selection and
Other Superannuation Matters) Act 2020.
(1) Subject to this section, this Act comes into operation on the day on
which it is assented to by the Governor.
(2)
Part 2
and
Part 3
(other than
section 17
) come into operation on a day to be fixed by proclamation.
(3) Section 7(5) of the
Acts
Interpretation Act 1915
does not apply to this Act.
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 Southern State Superannuation
Act 2009
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of Fund
insert:
fund includes a scheme or account;
fund selection—see section 21C(5);
(2) Section 3(1), definition of non-monetary
salary—delete "member" wherever occurring and substitute in each
case:
person
(3) Section 3(1), definition of salary—delete "member"
wherever occurring and substitute in each case:
person
(4) Section 3(1), definition of salary, (b) and
(c)—delete "member's" wherever occurring and substitute in each
case:
person's
(5) Section 3(1), definition of salary sacrifice
contribution—delete "member" and substitute:
person
(6) Section 3(1), definition of salary sacrifice
contribution—delete "member's" wherever occurring and substitute
in each case:
person's
(7) Section 3(1), definition of salary sacrifice
contribution—after "contribution account" insert:
or, in the case of a person who has made a fund selection, to the person's
selected fund
(8) Section 3(2)—delete "member" wherever occurring and substitute
in each case:
person
5—Amendment
of section 5—Employer contribution percentage
(1) Section 5(3)(a)(i)—delete "to the Treasurer"
(2) Section 5(3)(a)(ii)—delete "to the Treasurer"
6—Amendment
of section 15—Other accounts to be kept by Board
Section 15—after subsection (1) insert:
(1a) However, the Board is not required to maintain accounts of employer
contributions paid to another fund pursuant to a fund selection.
7—Amendment
of section 19—Membership of scheme
Section 19(2)—delete subsection (2) and substitute:
(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 the person's
selected fund,
is not, subject to section 21H and regulations under
subsection (3), a member of the Triple S scheme.
8—Amendment
of section 20—Contributions
(1) Section 20(1)—after "Subject to" insert:
subsection (1b) and
(2) Section 20(1)(b)—delete paragraph (b) and substitute:
(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—to the selected
fund,
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.
(3) Section 20—after subsection (1a) insert:
(1b) A member who has
made a fund selection—
(a) may not make
contributions to the Treasurer under subsection (1)(a) or (b);
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 21H(1).
(4) Section 20(2)(b)—after "Treasurer" insert:
, or, if the member has made a fund selection, to the member's selected
fund,
9—Amendment
of section 21—Payments by employers
(1) Section 21(1)—delete "member" first occurring and
substitute:
prescribed person
(2) Section 21(1)—delete "the member's employer must pay to the
Treasurer" and substitute:
the person's employer must pay to the person's designated superannuation
authority
(3) Section 21(1), definition of ECP—delete "member"
and substitute:
person
(4) Section 21(1), definition of S—delete "member" and
substitute:
person
(5) Section 21—after subsection (1) insert:
(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.
(6) Section 21(2)—delete "member" first occurring and
substitute:
prescribed person
(7) Section 21(2)—delete "member" second occurring and
substitute:
person
(8) Section 21(2)—delete "Treasurer" wherever occurring and
substitute in each case:
person's designated superannuation authority
(9) Section 21(2)—delete "member's" and substitute:
person's
(10) Section 21(3a) and (3b)—delete subsections (3a) and (3b) and
substitute:
(3a) An employer may satisfy the requirement under this section to pay an
amount on behalf of a prescribed person by paying the amount to an approved
clearing house, provided that—
(a) the approved clearing house then makes the contribution, as agent for
the employer, to the person's designated superannuation authority; and
(b) any other conditions prescribed by regulation are complied
with.
(11) Section 21(5)—before the definition of employer
insert:
approved clearing house means a body that is an approved
clearing house for the purposes of the Commonwealth Act;
designated superannuation authority—a prescribed
person's designated superannuation authority is—
(a) in the case of a person whose superannuation arrangements have been
transferred to another fund under section 21C—that fund;
and
(b) in any other case—the Treasurer;
(12) Section 21(5), definition of employer—delete
"member" wherever occurring and substitute in each case:
prescribed person
(13) Section 21(5), definition of prescribed
scheme—delete the definition and substitute:
maximum contribution base means the maximum contribution base
determined under the Commonwealth Act;
prescribed person means—
(a) a member; or
(b) a former member whose superannuation arrangements have been
transferred to another fund under section 21C.
After Part 3 insert:
Part 3A—Portability and fund
selection
Division 1—Interpretation
21A—Interpretation
In this Part—
complying fund means—
(a) a complying superannuation fund; or
(b) an RSA;
complying superannuation fund has the meaning given by
section 45 of the Superannuation Industry (Supervision)
Act 1993 of the Commonwealth;
designated member means a member of a class prescribed by
regulation for the purposes of this definition;
eligible fund—a fund is an eligible fund for the
purposes of a fund selection if—
(a) it is a complying fund; and
(b) the employer of the person who made the selection is able to
contribute to the fund for the benefit of the person at the time the selection
is made; and
(c) in the case of a selection made, or purportedly made, by a designated
member—it is a fund prescribed by regulation for the purposes of this
definition;
existing member means a person who was a member of the Triple
S scheme before the commencement of this Part;
fund selection notice—see
section 21C(3)
;
new member means a person who becomes a member of the Triple
S scheme after the commencement of this Part;
RSA has the same meaning as in the Retirement Savings
Accounts Act 1997 of the Commonwealth;
selected fund, of a person who has made a fund selection,
means the fund specified by the person in the fund selection notice given to the
person's employer;
successor fund has the same meaning as in the Income Tax
Assessment Act 1997 of the Commonwealth.
Division 2—Portability
21B—Transfer of funds
(1) Subject to this
section, amounts standing to the credit of 1 or more accounts maintained by the
Board on behalf of a member may, at the option of the member, in accordance with
the regulations, be transferred to another complying fund.
(2) The combined
balance of accounts maintained by the Board on behalf of a member for whom
amounts are transferred under
subsection (1)
must, immediately after the amounts are transferred, be equal to, or
greater than, the applicable minimum amount for the member.
(3) For the purposes of
subsection (2)
, the applicable minimum amount for a member
is—
(a) in the case of—
(i) a police member; or
(ii) a member of a class prescribed by regulation for the purposes of this
subsection,
the minimum amount prescribed by regulation; and
(b) in the case of any
other member—the minimum amount determined by the Board.
(4) The Board may, for the purposes of
subsection (3)(b)
, determine that different minimum amounts apply to different members or
classes of member.
(5) Amounts standing to the credit of accounts maintained by the Board on
behalf of a member cannot be transferred under this section if—
(a) the member is prevented from dealing with their superannuation
interests by an instrument in force under the Family Law Act 1975 of
the Commonwealth; or
(b) the combined balance of accounts maintained by the Board on behalf of
the member is less than the applicable minimum amount for the member for the
purposes of
subsection (2)
; or
(c) the member has a liability that arose under this Act.
(6) However, the Board may determine to permit a member to transfer
amounts standing to the credit of the member's accounts despite the member
having a liability that arose under this Act if the Board is satisfied that the
liability will be discharged in full.
(7) Regulations made for the purposes of this section—
(a) may include conditions and limitations that apply to all members or to
specified members or classes of member; and
(b) may exclude specified members or classes of member from the operation
of this section.
Division 3—Fund selection
21C—Member may direct employer contributions to
other fund
(1) This section
applies to a person who is a member of the Triple S scheme if—
(a) the person's employer is required to pay an amount to the Treasurer on
behalf of the person under section 21; and
(b) the person is not a member of the scheme solely by virtue of an
arrangement under section 6 with a participating employer; and
(c) the person is not
excluded from the operation of this section by the regulations.
(2) A regulation made for the purposes of
subsection (1)(c)
may exclude specified persons, or classes of persons, from the operation
of this section.
(3) Subject to this
section, a person to whom this section applies may, by giving a notice (a
fund selection notice) to the person's employer, direct the
employer to make payments required to be made by the employer on behalf of the
person under section 21 to an eligible fund specified in the
notice.
(4) A fund selection notice must—
(a) be in a form approved by the Board; and
(b) contain or be accompanied by such information (if any) as may be
required by the Board or the employer; and
(c) comply with any other requirements set out in the
regulations.
(5) A person who gives a valid direction under
subsection (3)
makes a fund selection for the purposes of this
Act.
(6) A person who has made a fund selection may, by giving a further fund
selection notice to their employer, vary the selection so as to select another
eligible fund.
(7) Only 1 fund may apply in relation to a person under this section
at any 1 time.
(8) Transfer of the superannuation interests of a person who has made a
fund selection from their selected fund to a successor fund does not, if the
successor fund is an eligible fund, affect the person's fund
selection.
(9) An employer may not charge a fee in connection with the making of a
fund selection by a person.
(10) A person who was, on the commencement of this section, a member of a
prescribed scheme (within the meaning of section 21 as in force immediately
before the commencement of section 9 of the
Statutes
Amendment (Fund Selection and Other Superannuation Matters)
Act 2020
) will be taken to have made a fund selection for the purposes of this
Act.
(11) The regulations may make further provision in relation to procedural
and other matters associated with a person's right to make a fund selection
under this Division.
21D—Effect of fund selection
(1) If a person makes a fund selection, the liability of the person's
employer to make payments on behalf of the person under section 21 will be
determined in accordance with that section.
(2) All amounts
standing to the credit of accounts maintained by the Board on behalf of a member
who has made a fund selection may, at the option of the member, be rolled over
to the member's selected fund unless—
(a) the member is prevented from dealing with their superannuation
interests by an instrument in force under the Family Law Act 1975 of
the Commonwealth; or
(b) the member has a liability that arose under this Act.
(3) However, the Board may determine to permit a member to roll over
amounts standing to the credit of the member's accounts despite the member
having a liability that arose under this Act if the Board is satisfied that the
liability will be discharged in full.
(4) An amount standing to the credit of a spouse account maintained by the
Board on behalf of the spouse of a person who ceases to be a member by virtue of
subsection (2)
must be preserved in accordance with the regulations.
(5) If a new member
makes a fund selection within 7 days, or such other period as may be
prescribed by regulation, after becoming a member of the Triple S
scheme—
(a) the member's selection takes effect immediately; and
(b) the member's employer must, as soon as possible, commence making
payments required under section 21 to the selected fund (and is not
required to make a payment to the Treasurer); and
(c) the member will be taken to have been covered by invalidity and death
insurance provided under this Act, to the extent set out in the regulations,
from the commencement of their employment until the end of the day on which the
first contribution to the selected fund is made by the employer.
(6) A new member who
does not make a fund selection within the period applying for the purposes of
subsection (5)
is not entitled to give a direction under
section 21C(3)
unless they have been a member of the Triple S scheme for—
(a) 6 months; or
(b) if another period is prescribed by regulation for the purposes of this
definition—that period.
(7) The regulations may prescribe variations to the procedures set out in
subsections (5)
and
(6)
.
(8) If an existing member makes a fund selection, the member's employer
must (unless the circumstances specified in
section 21E(1)(c)
apply) commence making contributions required under section 21 to the
member's selected fund within 2 months, or such other period as may be
prescribed by regulation, following the day on which the fund selection notice
is received by the employer.
(9) An employer may
refuse to comply with a direction given under
section 21C(3)
made by a person within 12 months of the giving of a previous fund
selection made by the person (and, in that case, the direction will be taken to
have been invalid for the purposes of this Act).
(10)
Subsection (9)
does not apply in relation to a direction given under
section 21F(c)
.
21E—Employer obligations
(1) Subject to
subsection (2)
, an employer of a person to whom
section 21C
applies may provide a fund selection notice to the person at any time but
must provide the person with a fund selection notice as follows:
(a) in the case of
a person who requests the notice from the employer, the notice must be provided
to the person not more than 28 days after the request;
(b) in the case of
person who is a new member, the notice must be provided to the person
immediately on the commencement of the person's employment;
(c) if the employer
becomes aware that it is not possible to contribute to the person's selected
fund (whether the person is a new member or an existing member), or that the
person's selected fund is not an eligible fund, the notice must be provided to
the person not more than 28 days after the employer becomes aware of that
fact.
(2)
Subsection (1)
does not apply in prescribed circumstances.
(3) If a person who makes a fund selection has not previously given a
direction under
section 21C(3)
, the person's employer must notify the Board that the direction has been
given.
21F—Matters affecting eligibility of
funds
If—
(a) a person has given a direction under
section 21C(3)
; and
(b) the person's specified fund—
(i) ceases to exist; or
(ii) ceases to accept contributions under this Part; or
(iii) ceases to be an eligible fund; and
(c) the person does
not, within the prescribed period, give their employer a new fund selection
notice specifying a different eligible fund,
section 21 applies as if a fund selection had not been made by the
person.
21G—Change in employer
(a) a person has given a direction under
section 21C(3)
; and
(b) the person subsequently commences employment with another employer;
and
(c) the other employer is an employer who is required to make payments on
behalf of the person under section 21,
the following provisions apply:
(d) if employment with
the other employer commences within the prescribed period after the person's
employment with the first employer ends—the person's direction continues
to operate despite the change in employers;
(e) in any other case—section 21 applies as if a fund selection
had not been made by the person.
(2) A regulation made
for the purposes of
subsection (1)(d)
may prescribe different periods that apply in respect of different persons
or classes of person.
21H—Person may elect to return to Triple S
scheme
(1) A person who
has made a fund selection may, by giving a further notice to the person's
employer, direct the employer to make payments required to be made by the
employer on behalf of the person under section 21 to the Triple S
scheme.
(2) A notice under
subsection (1)
must—
(a) be in a form approved by the Board; and
(b) contain or be accompanied by such information (if any) as may be
required by the Board or the employer; and
(c) comply with any other requirements set out in the
regulations.
(3) If a person gives a direction under
subsection (1)
—
(a) the person will, if their membership of the Triple S scheme has ceased
under
section 21D
but they are eligible to be a member of the scheme, become a member of the
scheme; and
(b) the person's employer must commence making contributions required
under section 21 to the Treasurer as the designated superannuation
authority within 2 months, or such other period as may be prescribed by
regulation, following the day on which the notice is received by the employer;
and
(c) the notice takes effect on the day the first such contribution is
made.
21I—Immunity from liability
No liability attaches to an employer or the Board in connection with any
action taken in compliance with a direction under this Division.
21J—Employer to report to
Board
(1) An employer of a
person who has made a fund selection must report to the Board on matters
relating to the fund selection as required by the Board.
(2) A report under
subsection (1)
must be in the form, and contain the information, determined by the
Board.
11—Amendment
of section 24—Employer benefits and contributions if person on leave
without pay
(1) Section 24—delete "member" first occurring and
substitute:
person whose employer is required to pay an amount to the Treasurer on
behalf of the person under section 21
(2) Section 24—delete "member" second and third occurring and
substitute in each case:
person
12—Amendment
of section 28—Confidentiality
Section 28(1)(ca)—delete paragraph (ca) and substitute:
(ca) to a person responsible for the administration of a
fund—
(i) that is a selected fund for the purposes of a fund selection;
or
(ii) to which amounts are to be, or have been, transferred on behalf of a
member under Part 3A,
for purposes related to the administration of this Act; or
13—Amendment
of section 30—Regulations
Section 30—after subsection (4) insert:
(4a) However, charges may not be fixed in connection with the making of a
fund selection.
14—Amendment
of Schedule 1—Transitional provisions
(1) Schedule 1, clause 12(1)—after "repealed Act" insert:
if the member has not made a fund selection
(2) Schedule 1, clause 12(3)—after paragraph (b) insert:
and
(c) if amounts standing to the credit of 1 or more accounts
maintained by the Board on behalf of a member have been transferred to another
fund under section 21B, the benefits to which the member would, but for
subclause (2), be entitled under the regulations are to be determined as if
no such transfer had occurred.
Part 3—Amendment
of Superannuation
Act 1988
15—Amendment
of section 8—Board's membership
Section 8(2)—after "
Southern
State Superannuation Act 2009
" insert:
(other than as chief executive officer of the Board)
After section 9 insert:
9A—Chief executive officer
(1) The Governor must appoint a person nominated by the Board to be the
chief executive officer of the Board.
(2) The Board may nominate 1 of their number or any other suitable
person.
(3) The chief executive officer will be appointed for a term, not
exceeding 5 years, specified in the instrument of appointment and will, at
the expiration of the term of appointment, be eligible for
reappointment.
(4) The Governor
may remove the chief executive officer from office—
(a) for misconduct; or
(b) for failure or
incapacity to carry out the duties of their office satisfactorily; or
(c) without limiting
paragraph (b)
—for non-compliance by the chief executive officer with a duty
imposed by this or any other Act.
(5) The office of the chief executive officer becomes vacant if
they—
(a) die; or
(b) complete a term of office and are not reappointed; or
(c) resign by written notice to the Minister; or
(d) become bankrupt or apply to take the benefit of a law for the relief
of insolvent debtors; or
(e) are convicted of an indictable offence or sentenced to imprisonment
for an offence; or
(f) in the case of a chief executive officer who is also a member of the
Board—cease to be a member; or
(g) are removed from office under
subsection (4)
.
(6) The chief executive officer is entitled to be paid such remuneration,
allowances and expenses as the Board determines.
(7) The chief executive officer is an employee of the Board and is
responsible to the Board for the day to day conduct of the business of the
Board.
17—Amendment
of section 10—Staff of Board
(1) Section 10(1)—after "this" insert:
or any other
(2) Section 10—after subsection (3) insert:
(4) A person appointed
under subsection (1) may assist in the administration of other
superannuation schemes or funds established or administered by the Board, or
otherwise assist the Board in the performance or exercise of any other functions
or powers.
(5) Without limiting
subsection (4)
, a person appointed under subsection (1) may also assist in the
administration of other superannuation schemes established for the benefit of
members or former members of the Parliament of the State or the South Australian
public sector.
(6) The Board is declared not to be a national system employer for the
purposes of the Fair Work Act 2009 of the Commonwealth.
18—Amendment
of section 21—Reports
Section 21—after subsection (1) insert:
(2) A report under subsection (1) must include the prescribed
information relating to the remuneration of the chief executive officer of the
Board.