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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
State Superannuation Amendment Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 3
Part 2 -- Amendments to allow
for transfer
4. Long title replaced 4
5. Section 3 amended 4
6. Part heading and Division inserted and
consequential amendments 5
Part 3 -- Schemes administered by the Board
Division 1 -- Preliminary
4E. Terms used in this Part and Schedules 5
7. Section 7B amended 7
8. Section 13 amended 7
9. Section 28 amended 7
10. Section 29 amended 7
11. Section 33B amended 8
12. Section 33C repealed 8
13. Section 35 amended 8
14. Section 38 amended 8
15. Section 40 amended 11
16. Parts 4 and 5 inserted 12
Part 4 -- GESB Superannuation
Division 1 -- Preliminary
41. Purpose of this Part 12
42. Terms used in this Part 12
219--3 page i
State Superannuation Amendment Bill 2007
Contents
Division 2 -- Formation of companies and
superannuation fund
43. Formation of MutualCo 13
44. Formation of TrustCo 16
45. Formation of GESB Superannuation 17
46. Licences, approvals etc. to be obtained 18
47. Service agreements 19
Division 3 -- Continuing provisions relating to
MutualCo and TrustCo
48. Constitutions of MutualCo and TrustCo to
include certain provisions 20
49. MutualCo and TrustCo not agents of the
State 20
50. Use of names 21
51. Non-compliance with veto provisions 21
51A. Notice of exercise of veto to be tabled 22
52. Review of special membership 22
53. Information to be provided in relation to
review 23
54. Expiry of certain sections when special
membership ceases 26
Division 4 -- Transfer
Subdivision 1 -- Preliminary
55. Terms used in this Division 26
Subdivision 2 -- Transfer of statutory schemes
56. Treasurer to fix transfer time 27
57. Treasurer to make transfer order 29
58. Transfer of assets, liabilities etc. 30
59. Transfer of members 31
60. Effect on rights, remedies etc. 32
Subdivision 3 -- General provisions relating
to transfer
61. Notification and registration of assignment 32
62. Completion of necessary transactions 33
63. Arrangements for custody and use of
records 34
64. Stamp duty and other taxes 34
Division 5 -- Transfer of staff
65. Terms used in this Division 35
66. Transfer of staff to MutualCo 36
67. Election as to employment 38
68. Transition payment for staff not electing to
return 38
69. Arrangements for return to public sector 39
70. Employment in public sector 39
Division 6 -- General
71. Treasurer may give directions 40
page ii
State Superannuation Amendment Bill 2007
Contents
72. Power to remedy insufficiency 41
73. General powers of Treasurer and Board 41
74. Use of Board's staff and facilities 42
75. No fees payable by members transferred
to GESB Superannuation 42
Part 5 -- General
77. Supplementary provision about Ministerial
directions 42
78. Supplementary provision about laying
documents before Parliament 44
79. Regulations 44
17. Schedule 1 amended 45
18. Schedule 2 amended 45
19. Conjunctions inserted 45
Part 3 -- Amendments at transfer
time
20. Section 3 amended 47
21. Part 2 inserted 47
Part 2 -- Employer contribution obligation
4A. Terms used in this Part 47
4B. Employers to make contributions 48
4C. Regulations may require extra
contributions 48
4D. No contributions to other funds 48
22. Section 4E amended 49
23. Division heading amended 49
24. Section 5 amended 49
25. Section 6 amended 50
26. Section 7 amended 50
27. Sections 7A and 7B repealed 50
28. Section 8 amended 51
29. Section 11 replaced 51
11. Use of government staff and facilities 51
30. Section 12 amended 52
31. Division heading amended 52
32. Section 14 amended 52
33. Section 15 amended 53
34. Section 18 amended 53
35. Section 23 repealed 53
36. Section 28 replaced 53
28. Application of Financial Management
Act 2006 and Auditor General Act 2006 53
page iii
State Superannuation Amendment Bill 2007
Contents
37. Section 30 repealed 54
38. Section 33 amended 54
39. Sections 33A and 33B repealed 54
40. Section 36 amended 54
41. Section 37 repealed 55
42. Section 38 amended 55
43. Section 76 inserted 56
76. Restriction on other public sector
superannuation schemes 56
44. Section 79 amended 57
45. Section 80 inserted 57
80. Transitional and saving provisions 57
46. Schedule 1 amended 57
47. Schedule 2 amended 58
48. Schedule 3 replaced 59
Schedule 3 -- Transitional and saving provisions
Division 1 -- Provisions for State Superannuation
Amendment Act 2007
1. References to Board and Fund 59
2. Transitional provision in relation to
Minister 59
49. Various references to Minister amended 60
Part 4 -- Amendments to introduce
choice
50. Section 4B amended 61
51. Section 4D repealed 61
Part 5 -- Amendments relating to
West State scheme
Division 1 -- West State in main transfer
Subdivision 1 -- Amendments to allow transfer
52. Section 29 amended 62
53. Section 41 amended 62
54. Section 42 amended 62
55. Section 56 amended 62
56. Section 60A inserted 63
60A. Treasurer may give indemnity or
guarantee 63
page iv
State Superannuation Amendment Bill 2007
Contents
Subdivision 2 -- Amendments at transfer time
57. Section 4E amended 63
58. Section 22 repealed 64
59. Section 33 amended 64
60. Section 38 amended 64
Division 2 -- West State in later transfer
Subdivision 1 -- Amendments to allow transfer
61. Section 29 amended 64
62. Section 41 amended 64
63. Subdivision 2A inserted 65
Subdivision 2A -- Transfer of West State scheme
60A. Terms used in this Subdivision 65
60B. Treasurer to fix WSS transfer time 66
60C. Treasurer to make WSS transfer order 68
60D. Transfer of assets, liabilities etc. 70
60E. Transfer of members 70
60F. Effect on rights, remedies etc. 71
60G. Treasurer may give indemnity or
guarantee 72
Subdivision 2 -- Amendments at WSS transfer time
64. Section 4E amended 73
65. Section 22 repealed 73
66. Section 33 amended 73
67. Section 38 amended 73
Division 3 -- West State separated into
sub-fund
Subdivision 1 -- Amendments to allow separation
68. Section 14 amended 73
69. Section 29 amended 74
70. Section 52 amended 74
71. Part 4A inserted 75
Part 4A -- West State scheme
Division 1 -- Preliminary
75A. Purpose of this Part 75
75B. Terms used in this Part 75
Division 2 -- Responsible entity and governing rules
75C. Responsible entity 76
75D. Responsible entity and directors to be
indemnified 76
75E. Governing rules 77
75F. Content of governing rules 77
page v
State Superannuation Amendment Bill 2007
Contents
75G. Governing rules to contain certain
provisions when made 78
75GA. Notice of refusal of approval to be tabled 80
Division 3 -- Creation of sub-funds
75H. Terms used in this Division 81
75I. Licences, approvals etc. to be obtained 82
75J. Service agreement 82
75K. Treasurer to fix separation time 83
75L. Treasurer to make separation order 85
75M. Allocation of assets to sub-funds 87
75N. Transfer of other assets, liabilities etc. 87
75O. West State members to become members
of MutualCo 88
75P. Effect on rights, remedies etc. 88
75Q. Treasurer may give indemnity or
guarantee 89
75R. Notification and registration of assignment 90
75S. Completion of necessary transactions 91
75T. Arrangements for custody and use of
records 91
75U. Stamp duty and other taxes 91
Division 4 -- General
75V. Treasurer may give directions 92
75W. Power to remedy insufficiency 93
75X. General powers of Treasurer and Board 93
75Y. No fees payable by West State members 94
Subdivision 2 -- Amendments at separation time
72. Section 4E amended 94
73. Section 22 repealed 94
74. Section 33 amended 95
75. Section 38 amended 95
76. Section 51 amended 95
Part 6 -- Consequential amendments
Division 1 -- Amendments to commence with
Part 2
77. Magistrates Court Act 2004 amended 96
78. State Superannuation (Transitional and
Consequential Provisions) Act 2000 amended 96
Division 2 -- Amendments to commence with
Part 3
79. Constitution Acts Amendment Act 1899 amended 97
80. Director of Public Prosecutions Act 1991 amended 97
page vi
State Superannuation Amendment Bill 2007
Contents
3A. Superannuation if subsequently appointed
as judge 97
81. Electricity Corporations Act 2005 amended 98
82. Financial Management Act 2006 amended 99
83. Land Tax Assessment Act 2002 amended 99
84. Port Authorities Act 1999 amended 100
85. Public Sector Management Act 1994 amended 100
86. Racing and Wagering Western Australia Act 2003
amended 100
87. Statutory Corporations (Liability of Directors)
Act 1996 amended 101
88. Western Australian Land Authority Act 1992
amended 101
89. Electricity Industry (Independent Market
Operator) Regulations 2004 amended 101
page vii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
State Superannuation Amendment Bill 2007
A Bill for
An Act to --
• amend the State Superannuation Act 2000; and
• consequentially amend certain other written laws,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
State Superannuation Amendment Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the State Superannuation Amendment Act 2007.
2. Commencement
5 (1) This Act comes into operation as follows:
(a) Part 1 -- on the day on which this Act receives the
Royal Assent ("assent day");
(b) Part 2 and Part 6 Division 1 -- on a day fixed by
proclamation;
10 (c) Part 3 and Part 6 Division 2 -- at the time fixed under
the State Superannuation Act 2000 section 56 as inserted
by section 16 of this Act ("transfer time");
(d) Part 4 -- on a day fixed by proclamation, being a day
that is after Part 3 comes into operation;
15 (e) Part 5 -- subject to and in accordance with
subsections (2) to (10).
(2) Part 5 Division 1 Subdivision 1 comes into operation on a day
fixed by proclamation, being a day not before the day on which
Part 2 comes into operation.
20 (3) If Part 5 Division 1 Subdivision 1 has not come into operation
before the transfer time, Part 5 Division 1 is repealed at that
time.
(4) If Part 5 Division 1 Subdivision 1 comes into operation --
(a) Part 5 Divisions 2 and 3 are repealed; and
25 (b) Part 5 Division 1 Subdivision 2 comes into operation at
the transfer time.
(5) Part 5 Division 2 Subdivision 1 comes into operation on a day
fixed by proclamation, being a day not before the day on which
Part 2 comes into operation.
page 2
State Superannuation Amendment Bill 2007
Preliminary Part 1
s. 3
(6) If Part 5 Division 2 Subdivision 1 comes into operation --
(a) Part 5 Divisions 1 and 3 are repealed; and
(b) Part 5 Division 2 Subdivision 2 comes into operation at
the time fixed under the State Superannuation Act 2000
5 section 60B as inserted by section 63 of this Act.
(7) Part 5 Division 3 Subdivision 1 comes into operation on a day
fixed by proclamation, being a day not before the day on which
Part 2 comes into operation.
(8) If Part 5 Division 3 Subdivision 1 comes into operation --
10 (a) Part 5 Divisions 1 and 2 are repealed; and
(b) Part 5 Division 3 Subdivision 2 comes into operation at
the time fixed under the State Superannuation Act 2000
section 75K as inserted by section 71 of this Act.
(9) If Subdivision 1 of Part 5 Division 1, 2 or 3 comes into
15 operation on the same day as Part 2, Part 2 takes effect first.
(10) If Subdivision 2 of Part 5 Division 1, 2 or 3 comes into
operation at the same time as Part 3, Part 3 takes effect first.
3. The Act amended
The amendments in this Act, other than Part 6, are to the State
20 Superannuation Act 2000*.
[* Reprint 1 as at 18 August 2006.
For subsequent amendments see Act No. 77 of 2006.]
page 3
State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 4
Part 2 -- Amendments to allow for transfer
4. Long title replaced
The long title is repealed and the following long title is inserted
instead --
5 "
An Act to provide for --
• employer-funded superannuation for people working in
the public sector; and
• the continuation under this Act of certain
10 superannuation schemes; and
• the establishment of a superannuation fund to be
regulated under Commonwealth legislation to replace
certain other superannuation schemes,
and for related purposes.
15 ".
5. Section 3 amended
(1) Section 3(1) is amended as follows:
(a) by deleting the definitions of "benefit", "Fund",
"Member", "S&FB Act", "scheme", "subsidiary" and
20 "Treasurer's guidelines";
(b) by inserting in the appropriate alphabetical positions --
"
"Corporations Act" means the Corporations Act 2001
(Commonwealth);
25 "regulated superannuation fund" has the meaning
given in the SIS Act section 19;
"SIS Act" means the Superannuation Industry
(Supervision) Act 1993 (Commonwealth);
"transfer time" means the time fixed under
30 section 56;
"West State scheme" means the superannuation
scheme referred to in section 29(1)(a);
page 4
State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 6
"working day" means a day other than a Saturday,
Sunday or public holiday.
".
(2) Section 3(3) is repealed.
5 6. Part heading and Division inserted and consequential
amendments
(1) After section 4 the following Part heading and Division are
inserted --
"
10 Part 3 -- Schemes administered by the Board
Division 1 -- Preliminary
4E. Terms used in this Part and Schedules
(1) In this Part and the Schedules --
"benefit" means a benefit paid or payable under a
15 scheme, whether paid or payable as a lump sum,
pension, allowance or annuity or in any other
form;
"Fund" means the Government Employees
Superannuation Fund under section 14;
20 "Member" means a member of a scheme;
"scheme" means a superannuation scheme continued
by section 29 or established under this Part;
"subsidiary" means a body determined under
subsection (2) to be a subsidiary of the Board;
25 "Treasurer's guidelines" means guidelines issued by
the Treasurer under section 33(2).
(2) The Corporations Act Part 1.2 Division 6 applies for
the purpose of determining whether a body is a
subsidiary of the Board.
30 ".
page 5
State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 6
(2) The headings to Parts 2, 3, 4, 5 and 6 are each amended by
deleting "Part" and inserting instead --
" Division ".
(3) Section 29 is amended as follows:
5 (a) by deleting "the day on which this Act comes into
operation" and inserting instead --
" 17 February 2001 ";
(b) by deleting "this Act --" and inserting instead --
" this Part -- ".
10 (4) Section 32 is amended by deleting "the commencement of this
Act." and inserting instead --
" 17 February 2001. ".
(5) The provisions listed in the Table to this subsection are
amended by deleting "this Act" in each place where it occurs
15 and inserting instead --
" this Part ".
Table
s. 6(1) s. 30(2)(a)
s. 7B(2) and (4) s. 31(1)(b)
s. 9(1) and (2) s. 34(1)
s. 15(1)(a) s. 37
(6) Schedule 1 clause 6(2)(e) is amended by deleting "this Act;"
and inserting instead --
20 " Part 3; ".
(7) Schedule 2 clause 1 is amended by deleting "this Act." and
inserting instead --
" Part 3. ".
page 6
State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 7
7. Section 7B amended
Section 7B(1) is repealed.
8. Section 13 amended
Section 13(3)(a) is amended by deleting "section 29(c) or (d),"
5 and inserting instead --
" section 29(1)(c) or (d), ".
9. Section 28 amended
(1) Section 28(1) is amended by deleting "under section 38".
(2) Section 28(2) is amended by deleting "section 29(b)," and
10 inserting instead --
" section 29(1)(b), ".
10. Section 29 amended
Section 29 is amended as follows:
(a) before "On" by inserting the subsection
15 designation "(1)";
(b) in paragraph (a) by deleting "Part VIIA of the GES Act"
and inserting instead --
"
the Government Employees Superannuation
20 Act 1987 Part VIIA
";
(c) in paragraph (b) by deleting "Parts IV, V, VI and VII of
the GES Act" and inserting instead --
"
25 the Government Employees Superannuation
Act 1987 Parts IV, V, VI and VII
";
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State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 11
(d) in paragraph (c) by deleting "Parts IV, V and VB of the
S&FB Act" and inserting instead --
"
the Superannuation and Family Benefits
5 Act 1938 Parts IV, V and VB
";
(e) in paragraph (d) by deleting "Parts VA and VB of the
S&FB Act" and inserting instead --
"
10 the Superannuation and Family Benefits
Act 1938 Parts VA and VB
";
(f) after paragraph (c) by deleting "and".
11. Section 33B amended
15 Section 33B(3) is amended by deleting "section 33C --" and
inserting instead --
" section 78 -- ".
12. Section 33C repealed
Section 33C is repealed.
20 13. Section 35 amended
Section 35(3) is repealed and the following subsection is
inserted instead --
"
(3) Section 77 applies to any direction given under this
25 section.
".
14. Section 38 amended
(1) Section 38(1) is repealed.
page 8
State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 14
(2) Section 38(2) is amended by deleting "subsection (1)
regulations may be made under subsection (1)" and inserting
instead --
"
5 section 79 but subject to this section, regulations may
be made under section 79
".
(3) Section 38(3) to (4b) are repealed and the following subsections
are inserted instead --
10 "
(3) Regulations cannot be made if they --
(a) reduce the amount of a benefit that --
(i) accrued or became payable before the
regulations came into operation; or
15 (ii) is, or may become, payable in relation
to a period before the regulations came
into operation;
or
(b) reduce, or have the same effect as reducing --
20 (i) in the case of the West State scheme or
the scheme continued by
section 29(1)(b), the multiplying factor
for any relevant benefit; or
(ii) in the case of the scheme continued by
25 section 29(1)(c), the pension value
factor for any Member of that scheme,
to less than it was immediately before
17 February 2001.
(4) Subsection (3) does not apply if --
30 (a) the Treasurer has certified that the Treasurer is
satisfied that the change to be made by the
regulations is a change that, if each scheme
affected by the regulations were a regulated
page 9
State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 14
superannuation fund, would be permitted under
the SIS Act to be made to the governing rules
of that fund; or
(b) the reduction would apply only in respect of
5 Members who agree with the Board that the
reduction is to apply in relation to them; or
(c) the regulations would reduce or provide for the
reduction of a Member's benefit only if --
(i) a superannuation agreement, flag lifting
10 agreement or splitting order is in force
in respect of the Member; and
(ii) the reduction does not reduce the
Member's benefit to less than the
Member's entitlement under the
15 agreement or order.
".
(4) Section 38(5) is amended as follows:
(a) in paragraph (a) by deleting "Act and" and inserting
instead --
20 " Part to the extent that ";
(b) by deleting "under subsection (1)".
(5) Section 38(6) and (7) are repealed and the following subsection
is inserted instead --
"
25 (6) Regulations may permit the Board to pay a pension or
other benefit from the scheme continued by
section 29(1)(c) for the purpose of --
(a) giving effect to a payment split; or
(b) satisfying the requirements of the Family Law
30 (Superannuation) Regulations 2001
(Commonwealth) Division 2.2 in relation to an
entitlement in respect of a superannuation
interest in the scheme.
".
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State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 15
(6) Section 38(9) is amended as follows:
(a) by deleting "subsection (4)" and inserting instead --
" subsection (3) ";
(b) by deleting the definition of "commencement day";
5 (c) in the definition of "relevant benefit" by deleting "the
commencement day" and inserting instead --
" 17 February 2001 ".
(7) After section 38(9) the following subsection is inserted --
"
10 (10) In this section each of the following terms has the
meaning given in the Family Law Act 1975
(Commonwealth) section 90MD --
(a) "flag lifting agreement";
(b) "payment split";
15 (c) "splitting order";
(d) "superannuation agreement";
(e) "superannuation interest".
".
15. Section 40 amended
20 Section 40 is amended by deleting "this Act and the regulations
made or applying under it" and inserting instead --
" this Part and the regulations referred to in section 38 ".
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State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 16
16. Parts 4 and 5 inserted
After section 40 the following Parts are inserted --
"
Part 4 -- GESB Superannuation
5 Division 1 -- Preliminary
41. Purpose of this Part
The purpose of this Part is to --
(a) provide for the establishment of a regulated
superannuation fund to replace the
10 superannuation schemes established under
Part 3; and
(b) provide for the transfer of assets and liabilities
of the State or the Board relating to those
superannuation schemes to TrustCo, MutualCo
15 or subsidiaries of either of them; and
(c) enable and facilitate a convenient transition
from those superannuation schemes to that
fund.
42. Terms used in this Part
20 (1) In this Part --
"GESB Superannuation" means the superannuation
fund established in accordance with section 45;
"MutualCo" means the company registered in
accordance with section 43;
25 "special member" means the person who is the
member of MutualCo in the special class of
membership referred to in section 43(3)(a);
"statutory fund" has the meaning "Fund" is given in
section 4E;
page 12
State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 16
"statutory scheme" means a superannuation scheme
established by the State Superannuation
Regulations 2001 and in existence immediately
before the transfer time, but does not include a
5 superannuation scheme continued by section 29;
"TrustCo" means the company registered in
accordance with section 44.
(2) In this Part each of the following terms has the
meaning given in the Corporations Act section 9 --
10 (a) "director";
(b) "registered office";
(c) "special resolution";
(d) "subsidiary".
Division 2 -- Formation of companies and
15 superannuation fund
43. Formation of MutualCo
(1) The Board is to take the necessary steps to form a
company limited by guarantee and cause it to be
registered under the Corporations Act.
20 (2) The company is to be formed and registered with --
(a) one member, being the Treasurer as the special
member; and
(b) not less than 3 directors nominated by the
Treasurer; and
25 (c) a constitution that has been approved by the
Treasurer.
(3) The Treasurer must not approve a constitution unless
satisfied that it contains provisions to the effect that --
(a) the company, when formed, will have a special
30 class of membership of the company to which
page 13
State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 16
class only the person who is for the time being
the Treasurer can belong; and
(b) if the special member resigns, the special class
of membership referred to in paragraph (a) will
5 terminate; and
(c) while there is a special member, the special
member will have a power to veto the exercise
by the company or the directors of its or their
power --
10 (i) to alter the constitution of the company;
or
(ii) to appoint a person as a director of the
company; or
(iii) to remove all of the directors of the
15 company within any 12 month period;
or
(iv) to form, acquire or dispose of a
subsidiary after the transfer time; or
(v) as a holding company of TrustCo, to
20 vote in favour of a resolution to alter the
constitution of TrustCo; or
(vi) to raise capital or borrow money; or
(vii) to alter or terminate an agreement
entered into in accordance with
25 section 47(3); or
(viii) to appoint, under the trust deed for
GESB Superannuation, a new trustee of
that fund;
and
30 (d) every person who becomes a member of GESB
Superannuation will be eligible to become a
member of the company unless ineligible
because of a provision of the kind described in
subsection (6); and
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State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 16
(e) the company must not dispose of any of its
shares in TrustCo unless the disposal is
approved by special resolution; and
(f) a person is not eligible to be a director of the
5 company unless the person meets criteria for
fitness and propriety that are, in the Treasurer's
opinion, no less stringent than the criteria set
out in the prudential standards made for the
purposes of the Banking Act 1959
10 (Commonwealth) section 23(2)(b) for fitness
and propriety of directors of authorised deposit
taking institutions; and
(g) the chairman of directors must be an
independent director; and
15 (h) more than half of the directors of the company
must be independent directors.
(4) In subsection (3)(g) and (h) --
"independent director" means a director who is
not --
20 (a) an employee of the company or any
subsidiary of the company; or
(b) a director of the Board; or
(c) a director of a subsidiary of the company; or
(d) an employee as defined in the Public Sector
25 Management Act 1994 section 3(1).
(5) A constitution does not fail to satisfy the requirements
of subsection (3)(a) only because it allows for a person
who was the Treasurer to remain as the special member
until the person who succeeded him or her as Treasurer
30 becomes the special member.
(6) The constitution of the company may provide that the
eligibility for company membership of a person who
becomes a member of GESB Superannuation, other
page 15
State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 16
than a person who becomes a member by operation of
this Part, will or may be subject to --
(a) the person having been a member of GESB
Superannuation for a minimum period; or
5 (b) the value of the person's entitlements under
GESB Superannuation being not less than a
minimum amount,
being a period or amount set out in the constitution or
to be determined by the directors of the company in
10 accordance with the constitution.
44. Formation of TrustCo
(1) The Board and MutualCo are to take the necessary
steps to form a subsidiary of MutualCo that is a
proprietary company limited by shares and cause it to
15 be registered under the Corporations Act.
(2) The company is to be formed and registered with --
(a) MutualCo as the only shareholder; and
(b) not less than 3 directors nominated by the
Treasurer; and
20 (c) a constitution that has been approved by the
Treasurer.
(3) The Treasurer must not approve a constitution unless
satisfied that it contains provisions to the effect that --
(a) after the transfer time, the membership of the
25 board of the company will satisfy the equal
representation requirements set out in the
SIS Act Part 9; and
(b) more than half of the directors of the company
must be independent directors.
page 16
State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 16
(4) In subsection (3)(b) --
"independent director" means a director who is
not --
(a) a director or employee of MutualCo; or
5 (b) an employee of TrustCo; or
(c) a director or employee of any subsidiary of
MutualCo other than TrustCo.
45. Formation of GESB Superannuation
(1) The Board, MutualCo and TrustCo are to as soon as
10 practicable take the necessary steps to establish a fund
that is a superannuation fund for the purposes of the
SIS Act.
(2) The fund is to be established --
(a) by a trust deed that has been approved by the
15 Treasurer; and
(b) with TrustCo as the first trustee of the fund.
(3) The Treasurer must not approve a trust deed unless
satisfied that compliance with the terms of the trust
deed would not cause the trustee to contravene a
20 regulatory provision, as defined in the SIS Act
section 38A, in relation to the fund.
(4) The Treasurer must not approve a trust deed unless
satisfied that the trust deed contains provisions to the
effect that, if the transfer time were the time when the
25 approval is given --
(a) each existing member would be eligible to
become a member of GESB Superannuation;
and
(b) existing members of each statutory scheme
30 would become members in the class of
membership in GESB Superannuation specified
in the deed in respect of that statutory scheme;
and
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(c) an existing member's benefit entitlements as a
member of GESB Superannuation, considered
as a whole and disregarding any compliance
changes, would be no less favourable than the
5 member's existing benefit entitlements; and
(d) an existing member's obligations as a member
of GESB Superannuation would be no greater
than the member's existing obligations; and
(e) if it is necessary to appoint a new trustee the
10 appointment is to be made by MutualCo.
(5) In subsection (4) --
"compliance change", in relation to a member's
benefit entitlements, means an unfavourable
change in those entitlements to the extent that it
15 would --
(a) be necessary for compliance with, or occur
as a consequence of the application of, the
SIS Act, the Income Tax Assessment
Act 1936 (Commonwealth) or any other law
20 of the Commonwealth; or
(b) occur as a result of the member's benefits
ceasing to be benefits payable under a
scheme for the purposes of section 31;
"existing" means existing under a statutory scheme at
25 the time the Treasurer approves the trust deed.
46. Licences, approvals etc. to be obtained
(1) The Board, MutualCo and TrustCo are to take the
necessary steps to ensure that, as soon as is
practicable --
30 (a) all necessary licences, approvals, registrations,
exemptions and other kinds of authorisations
have been issued, granted or obtained; and
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(b) all other requirements with which it is
necessary to comply, have been complied with.
(2) In subsection (1) --
"necessary" means necessary, under a written law or a
5 law of the Commonwealth, to be done before the
transfer time, in order to enable GESB
Superannuation --
(a) to function as a regulated superannuation
fund from the transfer time; or
10 (b) to become a complying superannuation fund
in relation to the year of income in which the
transfer time occurs.
47. Service agreements
(1) The Board must, as soon as is practicable, prepare and
15 submit to the Treasurer --
(a) a draft of an agreement to be entered into by
MutualCo and TrustCo for the provision by
MutualCo to TrustCo of services relating to the
performance by TrustCo of its functions as
20 trustee of GESB Superannuation; and
(b) a draft of an agreement to be entered into by
MutualCo and the Board for the provision by
MutualCo to the Board of services relating to
the performance by the Board of its functions.
25 (2) The Treasurer may --
(a) approve a draft agreement submitted under
subsection (1); or
(b) direct that it be amended and approve it in an
amended form.
30 (3) As soon as is practicable after the Treasurer has
approved a draft agreement MutualCo and TrustCo or
the Board, as the case requires, are to enter into an
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agreement on the terms of the draft agreement
approved by the Treasurer.
Division 3 -- Continuing provisions relating to
MutualCo and TrustCo
5 48. Constitutions of MutualCo and TrustCo to include
certain provisions
(1) If the constitution of MutualCo or TrustCo does not
contain express provisions compliance with which
would necessarily involve compliance with a provision
10 set out in the Table to this subsection, the constitution
is to be taken to include the provision set out in the
Table.
Table
1. The registered office and principal place of
business of the company must be located in
Western Australia.
2. More than half of the directors of the
company must be ordinarily resident in
Western Australia.
(2) To the extent that they are governed by this section, the
15 constitutions of MutualCo and TrustCo are declared to
be excluded matters for the purposes of the
Corporations Act section 5F in relation to the whole of
the Corporations legislation to which Part 1.1A of that
Act applies.
20 49. MutualCo and TrustCo not agents of the State
MutualCo and TrustCo, and any subsidiary of either of
them, are not agents of the State and do not have the
status, immunities or privileges of the State.
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50. Use of names
(1) MutualCo and TrustCo, and each subsidiary of either
of them, are prohibited from using any name in
connection with its business that suggests that it or
5 GESB Superannuation is associated with the State.
(2) The use in a name of the term "GESB" does not
contravene subsection (1).
(3) The use of the terms "West State" or "Gold State" in
relation to the superannuation schemes referred to in
10 section 29(1)(a) and (b), or divisions of GESB
Superannuation that replace those schemes, does not
contravene subsection (1).
51. Non-compliance with veto provisions
(1) In this section --
15 "veto provision" means a provision of the constitution
of MutualCo that confers, or has the effect of
conferring, on the special member a power of veto
referred to in section 43(3)(c).
(2) If MutualCo purports to exercise a power referred to in
20 section 43(3)(c) and the veto provisions relating to the
exercise of that power have not been complied with,
each director of MutualCo commits an offence.
Penalty: a fine of $100 000.
(3) If a person is charged with an offence under
25 subsection (2) it is a defence to prove that --
(a) the purported exercise of the power occurred
without the person's consent or connivance;
and
(b) the person took all measures that he or she
30 could reasonably be expected to have taken to
prevent the purported exercise of the power.
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51A. Notice of exercise of veto to be tabled
If the Treasurer exercises a power under a veto
provision, as defined in section 51, the Treasurer must,
within 14 days after the power is exercised --
5 (a) give written notice to MutualCo confirming the
exercise of the power; and
(b) cause a copy of the notice to be laid before each
House of Parliament or dealt with under
section 78.
10 52. Review of special membership
(1) The Treasurer is to carry out a review of the
Treasurer's special membership of MutualCo as soon
as is practicable after --
(a) the third anniversary of the transfer time; and
15 (b) the expiry of each 3 yearly interval after that
anniversary.
(2) In the course of a review the Treasurer is to consider
and have regard to --
(a) the need for --
20 (i) the Treasurer to continue to be the
special member; and
(ii) the continuation of section 51;
and
(b) the effectiveness of the operations and
25 performance of MutualCo, TrustCo and GESB
Superannuation; and
(c) the interests of members of GESB
Superannuation; and
(d) any other matters that appear to the Treasurer to
30 be relevant.
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(3) The Treasurer is to prepare a report based on the
review and, as soon as is practicable after the report is
prepared (and in any event not more than 12 months
after the relevant anniversary), cause it to be laid
5 before each House of Parliament or dealt with under
section 78.
(4) Before a copy of the report is laid before Parliament
the Treasurer --
(a) must provide MutualCo and TrustCo with a
10 reasonable opportunity to identify any
information contained in the report that the
company considers is of a confidential or
commercially sensitive nature; and
(b) may exclude from the copy of the report to be
15 laid before Parliament any such information
identified by MutualCo or TrustCo.
(5) If information is excluded from a copy of the report
under subsection (4)(b), the copy of the report must
contain a statement to that effect at the place in the
20 report where the excluded information would have
otherwise appeared.
(6) If, after carrying out a review, the Treasurer determines
that there is no need for the Treasurer to continue to be
the special member, the Treasurer is to resign as the
25 special member in the manner provided in the
constitution of MutualCo not later than 30 working
days after the report is laid before Parliament.
53. Information to be provided in relation to review
(1) In this section --
30 "company" means MutualCo, TrustCo or a subsidiary
of either of them;
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"fund members" means the members referred to in
section 52(2)(c);
"regulator" means --
(a) the Australian Securities and Investments
5 Commission under the Australian Securities
and Investments Commission Act 2001
(Commonwealth); or
(b) the Australian Prudential Regulation
Authority under the Australian Prudential
10 Regulation Authority Act 1998
(Commonwealth); or
(c) the Commissioner of Taxation under the
Taxation Administration Act 1953
(Commonwealth);
15 "relevant information" means information of any of
the following kinds that is specified, or of a
description specified, by the Treasurer --
(a) information provided by a company to a
regulator;
20 (b) information given by a regulator to a
company;
(c) information that a company --
(i) has given to fund members or
members of the company; or
25 (ii) would be required by written law or a
law of the Commonwealth to give to
a fund member or a member of the
company at the member's request;
(d) if a complaint has been made to the
30 Superannuation Complaints Tribunal under
the Superannuation (Resolution of
Complaints) Act 1993 (Commonwealth) in
relation to a decision or conduct of a
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company, information relating to the
complaint --
(i) given by the company to the Tribunal;
or
5 (ii) given by the Tribunal to the company,
but not including any information relating to any
fund member or member of the company
individually.
(2) For the purpose of carrying out a review under
10 section 52 the Treasurer is entitled --
(a) to have any relevant information in the
possession of a company; and
(b) to make and retain copies of that information.
(3) For the purposes of subsection (2) the Treasurer may
15 request a company to --
(a) give relevant information to the Treasurer; or
(b) give the Treasurer access to relevant
information.
(4) A company must comply with a request given to it
20 under subsection (3) except to the extent that to do so
would cause the company to contravene another
written law or a law of the Commonwealth.
(5) If a company is given a request under subsection (3)
and --
25 (a) after the company has complied with the
request; but
(b) before the Treasurer's report on the review is
tabled in accordance with section 52(3),
further relevant information of the kind requested
30 comes into the possession of the company, the
company must comply with the request in respect of
that further information.
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54. Expiry of certain sections when special membership
ceases
(1) Before, or as soon as is practicable after, the Treasurer
resigns as the special member, the Treasurer is to cause
5 a notice of that fact to be published in the Gazette.
(2) Sections 51 to 54 expire at the end of the day that is the
later of --
(a) the day on which that notice is published; and
(b) the day on which the Treasurer resigns as the
10 special member.
Division 4 -- Transfer
Subdivision 1 -- Preliminary
55. Terms used in this Division
In this Division --
15 "asset" means any property of any kind, whether
tangible or intangible, real or personal and,
without limiting that meaning, includes --
(a) a chose in action; or
(b) goodwill; or
20 (c) a right, interest or claim of any kind,
whether arising from, accruing under, created or
evidenced by or the subject of, a document or
otherwise and whether liquidated or unliquidated,
actual, contingent or prospective;
25 "assignee" means --
(a) in relation to an asset or liability specified in
a transfer order under section 57(1)(a) or (b),
the person specified in the order as the
person to whom the asset or liability is to be
30 assigned; or
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(b) in relation to a liability assigned by operation
of section 58(b), TrustCo; or
(c) in relation to proceedings specified in a
transfer order under section 57(1)(c), the
5 person specified in the order as the person
who is to be substituted for the Board as a
party to the proceedings; or
(d) in relation to an agreement or document
specified in a transfer order under
10 section 57(1)(d), the person specified in the
order as the person a reference to whom is to
be treated as being substituted for a reference
in the agreement or document to the Board;
"liability" means any liability, duty or obligation
15 whether liquidated or unliquidated, actual,
contingent or prospective, and whether owed alone
or jointly or jointly and severally with any other
person;
"right" means any right, power, privilege or immunity
20 whether actual, contingent or prospective but does
not include any privilege or immunity enjoyed as
an agent of the State except to the extent that it
relates to anything done or omitted to be done
before the transfer time;
25 "transfer order" means an order made under
section 57;
"transferring member" means a person who becomes
a member of GESB Superannuation by operation
of section 59(1)(a).
30 Subdivision 2 -- Transfer of statutory schemes
56. Treasurer to fix transfer time
(1) The Treasurer may, by order published in the Gazette,
fix the transfer time.
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(2) The Treasurer must not make an order under
subsection (1) unless the Treasurer has received from
an actuary a certificate --
(a) given not more than 30 working days before the
5 time to be fixed as the transfer time; and
(b) certifying that the actuary considers that if the
transfer time were the time when the certificate
is given, the assets assigned by operation of
section 58 to TrustCo as trustee of GESB
10 Superannuation would be sufficient and
appropriate to enable TrustCo to meet its
obligations as trustee of GESB Superannuation.
(3) In giving a certificate for the purposes of subsection (2)
an actuary is to have regard to --
15 (a) the type and value of the assets and liabilities to
be assigned by operation of section 58 to
TrustCo as trustee of GESB Superannuation;
and
(b) the investment options selected by members of
20 the statutory schemes; and
(c) the level of reserves the actuary reasonably
considers a prudent trustee of GESB
Superannuation would, in the ordinary course
of the prudent management of the fund,
25 maintain.
(4) The Treasurer is to cause a copy of --
(a) the transfer order; and
(b) the actuarial certificate referred to in
subsection (2); and
30 (c) any other actuarial advice received by the
Treasurer in relation to the assets and liabilities
to be assigned by operation of section 58; and
(d) the order made under subsection (1),
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to be laid before each House of Parliament or dealt
with under section 78 within 3 working days after the
order made under subsection (1) is published in the
Gazette.
5 57. Treasurer to make transfer order
(1) For the purpose of this Part the Treasurer may, by one
or more orders published in the Gazette, specify --
(a) the assets --
(i) in the statutory fund; or
10 (ii) of the Board that are not in the statutory
fund,
that are to be assigned by operation of
section 58(a) to the person specified in the
order; and
15 (b) any liability of the Board --
(i) not arising under a statutory scheme; or
(ii) arising under a statutory scheme but that
will not be assigned by operation of
section 58(b),
20 that is to be assigned by operation of
section 58(c) to the person specified in the
order; and
(c) any proceedings in which the person specified
in the order is to be substituted by operation of
25 section 58(d) for the Board as a party to the
proceedings; and
(d) any agreement or document relating to an asset
or liability that is to be assigned by operation of
section 58 that, unless otherwise expressly
30 specified in the order, is to be taken to be
amended by operation of section 58(e) by
substituting for a reference in it to the Board a
reference to the person specified in the order.
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(2) The person specified in a transfer order may be
MutualCo or TrustCo or a subsidiary of either of them.
(3) A transfer order may specify a thing by describing it as
a member of a class of things.
5 (4) A transfer order may specify a thing by reference to a
schedule that need not be published in the Gazette but
must be --
(a) signed by the Treasurer; and
(b) available for public inspection.
10 (5) Anything specified in a schedule referred to in a
transfer order is taken to be specified in the order.
(6) The Treasurer may, by order published in the Gazette,
amend a transfer order, or a schedule referred to in a
transfer order, to correct --
15 (a) a clerical mistake; or
(b) an accidental slip or omission; or
(c) the misdescription of a person or thing.
(7) A transfer order, or an order under subsection (6), can
only be made before the transfer time.
20 58. Transfer of assets, liabilities etc.
At the transfer time, by operation of this section --
(a) an asset specified in a transfer order under
section 57(1)(a) is assigned to the assignee; and
(b) every liability of the Board or of the State to
25 pay a benefit arising under a statutory scheme
to or in relation to a transferring member is
assigned to, and becomes a liability of, TrustCo
as trustee of GESB Superannuation; and
(c) a liability specified in a transfer order under
30 section 57(1)(b) is assigned to, and becomes a
liability of, the assignee; and
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(d) in proceedings specified in a transfer order
under section 57(1)(c) the assignee is
substituted for the Board as a party to the
proceedings; and
5 (e) an agreement or document specified in a
transfer order under section 57(1)(d) is, unless
otherwise expressly specified in the order,
taken to be amended by substituting for any
reference in it to the Board a reference to the
10 assignee.
59. Transfer of members
(1) At the transfer time, by operation of this section, a
person who was, immediately before the transfer time,
a member of a statutory scheme --
15 (a) becomes a member of GESB Superannuation;
and
(b) ceases to be a member of the statutory scheme.
(2) The Board and MutualCo are to take the necessary
steps to ensure that at the transfer time every
20 transferring member becomes a member of MutualCo.
(3) For the purposes of subsection (2), the Board is
appointed as attorney for each person who is a member
of a statutory scheme for the purpose of executing any
documents the Board considers necessary or
25 desirable --
(a) to enable that person, if he or she becomes a
transferring member, to become a member of
MutualCo; and
(b) to nominate for the person how MutualCo may
30 send or make available to the person notices,
reports and other communications that
MutualCo is required under the Corporations
Act to send to members of the company.
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60. Effect on rights, remedies etc.
After the transfer time --
(a) any proceedings that might have been
commenced by or against the Board or the State
5 in relation to an asset or liability assigned by
operation of section 58 --
(i) may be commenced by or against the
assignee; and
(ii) cannot be commenced by or against the
10 Board or the State;
and
(b) any remedy that would have been available to
or against the Board or the State in relation to
an asset or liability assigned by operation of
15 section 58 --
(i) is available to or against the assignee;
and
(ii) is not available to or against the Board
or the State;
20 and
(c) anything relating to an asset or liability
assigned by operation of section 58 that was
done or omitted to be done by, to, or in respect
of, the Board or the State before the transfer
25 time and is of any ongoing effect is to be taken
to have been done or omitted to be done by, to,
or in respect of, the assignee.
Subdivision 3 -- General provisions relating to transfer
61. Notification and registration of assignment
30 (1) In this section --
"assigned property" means an asset or liability
assigned by operation of this Division;
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"registrar" means --
(a) a WA registrar; or
(b) a person authorised or required by a law of a
place outside the State to record and give
5 effect to the registration of documents
relating to transactions affecting assigned
property;
"WA registrar" means --
(a) the Registrar of Titles; or
10 (b) the Registrar of Deeds and Transfers; or
(c) the Minister administering the Mining
Act 1978; or
(d) any other person authorised by a written law
to record and give effect to the registration of
15 documents relating to transactions affecting
assigned property.
(2) A WA registrar is to take notice of this Division and
record and register in the appropriate manner the
documents necessary to show the effect of this
20 Division.
(3) A person to whom assigned property is assigned by
operation of this Division is to cause to be delivered to
each registrar, in a form acceptable to the registrar, all
the information the registrar needs in order to record
25 and register the documents necessary to show the effect
of this Division in relation to that property.
62. Completion of necessary transactions
If there is any impediment to any provision of this
Division having effect (whether because a matter is
30 governed otherwise than by the law of the State, or for
any other reason), the Treasurer, the Board, MutualCo,
TrustCo and each other person to whom anything is
assigned by operation of this Division are to take all
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practicable steps to ensure that the effect sought to be
achieved by that provision is achieved as close as
possible to the transfer time.
63. Arrangements for custody and use of records
5 The Board, MutualCo, TrustCo and each other person
to whom anything is assigned by operation of this
Division are to make arrangements for the delivery or
sharing of, and access to, documents and other records
(however compiled, recorded or stored) that relate to
10 any of the following --
(a) anything assigned by operation of this Division
or otherwise affected by this Division;
(b) a scheme affected by this Division;
(c) a person who becomes a member of GESB
15 Superannuation by operation of this Division.
64. Stamp duty and other taxes
(1) In this section --
"foreign tax" means a tax, duty, fee, levy or charge
under a law of a place outside the State;
20 "relevant act" means anything --
(a) that occurs by operation of this Division; or
(b) done --
(i) under this Division; or
(ii) to give effect to this Division; or
25 (iii) for a purpose connected with, or
arising out of, giving effect to this
Division,
including a transaction entered into or an instrument or
document of any kind made, executed, lodged or given.
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(2) Stamp duty under the Stamp Act 1921 is not chargeable
in relation to a relevant act.
(3) Any foreign tax payable in relation to a relevant act is
to be paid by the Board and charged to the statutory
5 fund under section 15(2)(c).
(4) The Treasurer or a person authorised by the Treasurer
may, at the request of the Board or a person who
would, but for subsection (2) or (3), be liable to pay
stamp duty or foreign tax in relation to a relevant act,
10 certify in writing that a specified thing was a relevant
act.
(5) For all purposes and in all proceedings, a certificate
under subsection (4) is conclusive evidence of the
matters it certifies, except so far as the contrary is
15 shown.
Division 5 -- Transfer of staff
65. Terms used in this Division
(1) In this Division --
"department" means the department of the Public
20 Service principally assisting in the administration
of this Act;
"election" means an election made in accordance with
section 67;
"industrial instrument" means an award, order,
25 agreement or other instrument relating to terms
and conditions of employment that applies under
the Industrial Relations Act 1979 or the Workplace
Relations Act 1996 (Commonwealth);
"protected matter" means any of the following --
30 (a) remuneration;
(b) leave;
(c) workload management;
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(d) working hours;
(e) flexible working arrangements;
(f) professional development;
"transferred employee" means a person who becomes
5 an employee of MutualCo by operation of
section 66(1).
(2) In this Division each of the following terms has the
meaning given in the Public Sector Management
Act 1994 section 3(1) --
10 (a) "employing authority";
(b) "permanent officer";
(c) "public service officer";
(d) "term officer".
66. Transfer of staff to MutualCo
15 (1) At the transfer time --
(a) each person employed as a public service
officer in accordance with section 11(1) or as
the chief executive officer of the Board
becomes an employee of MutualCo employed
20 under a contract of employment between the
person and MutualCo; and
(b) each person employed by the Board under
section 11(2) other than on a casual basis
becomes an employee of MutualCo which is
25 substituted for the Board as a party to the
person's contract of employment,
unless, at that time, the person's employment
terminates other than by operation of this Division.
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(2) A transferred employee's contract of employment is to
be taken to include each term or condition that --
(a) applied to the person immediately before the
transfer time under a contract of employment or
5 industrial instrument; and
(b) relates to a protected matter.
(3) A transferred employee's rights against MutualCo
include each accruing or accrued right that --
(a) the person had immediately before the transfer
10 time under a contract of employment or
industrial instrument; and
(b) relates to a protected matter.
(4) For the purpose of working out when an accruing right
referred to in subsection (3) accrues the person's
15 employment in the public sector is to be taken to have
been employment with MutualCo.
(5) Despite subsections (2) and (3) --
(a) a person's contract of employment with
MutualCo does not include a term or condition;
20 and
(b) a person's rights against MutualCo do not
include a right,
to the extent that it requires or permits contributions to
be made by or for the person to a particular
25 superannuation scheme or to a particular type of
superannuation scheme.
(6) Nothing in this section prevents the subsequent
variation or replacement of a term, condition or right
referred to in subsection (2) or (3).
30 (7) The regulations referred to in the Public Sector
Management Act 1994 section 94 do not apply in
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relation to a change of employment effected by
operation of subsection (1).
67. Election as to employment
(1) A transferred employee may elect, by giving written
5 notice to MutualCo, to --
(a) remain an employee of MutualCo; or
(b) return to the public sector.
(2) An election cannot be made after the person has
become entitled to a transition payment under
10 section 68.
(3) An election cannot be withdrawn or revoked.
68. Transition payment for staff not electing to return
(1) A transferred employee becomes entitled to a transition
payment if --
15 (a) the person elects to remain an employee of
MutualCo; or
(b) the person enters into a contract of employment
with MutualCo that replaces the contract
referred to in section 66(1); or
20 (c) a period of 12 months has expired after the end
of the day on which the transfer time occurs
and the person has neither --
(i) elected to return to the public sector; nor
(ii) become entitled to a transition payment
25 under paragraph (a) or (b).
(2) When a person becomes entitled to a transition
payment the Board is to pay the person the amount
determined by the Treasurer on the recommendation of
the Minister for Public Sector Management.
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69. Arrangements for return to public sector
(1) As soon as is practicable after a person elects to return
to the public sector MutualCo is to notify the
employing authority of the department of that election.
5 (2) MutualCo and the employing authority are to make the
necessary arrangements to facilitate the operation of
section 70.
(3) MutualCo is to comply with any requirements of the
Treasurer's instructions issued under the Financial
10 Management Act 2006 section 78 relating to the
making of payments by an employing authority for
liabilities relating to employees whose employing
authority changes as if --
(a) MutualCo were an employing authority to
15 which those instructions applied; and
(b) each person who elects to return to the public
sector were an employee to whom those
instructions applied.
(4) If the employing authority incurs costs as a result of the
20 operation of section 70 the Treasurer may direct the
Board, under section 71, to pay an amount from the
statutory fund to the employing authority to reimburse
the employing authority for any or all of those costs.
70. Employment in public sector
25 (1) When a person elects to return to the public sector the
person --
(a) ceases to be an employee of MutualCo; and
(b) becomes --
(i) if the person was, immediately before
30 the transfer time, a permanent officer --
a permanent officer in the department;
or
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State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 16
(ii) if the person was, immediately before
the transfer time, employed for a fixed
term (the "pre-transfer term") -- a
term officer in the department for a term
5 that expires on the day on which the
person's pre-transfer term would have
expired.
(2) For the purposes of the Public Sector Management
Act 1994 a person who becomes a public service
10 officer under subsection (1)(b) is to be taken to have
held an office, post or position in the department
that --
(a) was at the same level of classification as the
substantive office, post or position held by the
15 person immediately before the transfer time;
and
(b) has been abolished.
(3) When a person becomes a public service officer under
subsection (1)(b) the person's entitlement to leave
20 includes any accrued leave to which the person was
entitled as an employee of MutualCo immediately
before becoming a public service officer.
(4) Nothing in this section prevents the subsequent
variation or replacement of a term, condition or right
25 relating to the person's employment in the department.
Division 6 -- General
71. Treasurer may give directions
(1) The Treasurer may give directions in writing to the
Board requiring it to take any step that the Treasurer
30 considers necessary or convenient for the purpose of
giving effect to this Part.
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State Superannuation Amendment Bill 2007
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s. 16
(2) The Board must comply with a direction given to it
under subsection (1).
(3) This section applies despite the Statutory Corporations
(Liability of Directors) Act 1996 section 6(a) and a
5 direction given under this section is not unlawful for
the purposes of Part 3 Division 4 of that Act.
(4) Section 77 applies to a direction given under this
section.
72. Power to remedy insufficiency
10 (1) If the Treasurer is satisfied that the assets assigned by
operation of this Part to TrustCo as trustee of GESB
Superannuation were not, at the time they were
assigned, sufficient or appropriate to enable TrustCo to
meet its obligations as trustee of GESB
15 Superannuation, the Treasurer may take any action the
Treasurer considers appropriate to remedy the
insufficiency or inappropriateness.
(2) Without limiting the action that may be taken under
subsection (1), the Treasurer may direct the Board,
20 under section 71, to --
(a) transfer assets in the statutory fund to TrustCo;
or
(b) pay an amount from the statutory fund to a
person.
25 (3) This section expires when section 54 expires.
73. General powers of Treasurer and Board
(1) The Treasurer and the Board may do, in the State or
elsewhere, anything necessary or convenient to be done
for the purpose of giving effect to this Part.
30 (2) If there is a conflict or inconsistency between --
(a) a function of the Board under this Part; and
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State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 16
(b) a function of the Board under any other
provision of this Act,
the function under this Part prevails.
74. Use of Board's staff and facilities
5 Until the transfer time the Board may make available to
MutualCo or TrustCo --
(a) any member of staff of the Board; and
(b) any facilities or services of the Board,
on terms, including as to payment, agreed between the
10 Board and the company.
75. No fees payable by members transferred to GESB
Superannuation
No fee or charge is payable by a person who becomes a
member of GESB Superannuation by operation of this
15 Part in relation to anything --
(a) that occurs by operation of this Part; or
(b) done --
(i) under this Part; or
(ii) to give effect to this Part; or
20 (iii) for a purpose connected with, or arising
out of, giving effect to this Part.
Part 5 -- General
77. Supplementary provision about Ministerial
directions
25 (1) In this section --
"direction" means a direction given to the Board
under a provision of this Act that provides for this
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State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 16
section to apply to a direction given under that
provision;
"Minister", in relation to a direction, means the
Minister who gave the direction.
5 (2) Subject to this section, a direction becomes effective on
the expiry of 7 days after the Board receives it or of
such longer period as the Minister may, at the Board's
request, determine.
(3) If the Board asks the Minister to extend the 7 day
10 period under subsection (2), the Minister must decide
whether or not to agree to the request and notify the
Board of that decision before the 7 day period has
expired.
(4) If a direction is the subject of a notice under the
15 Statutory Corporations (Liability of Directors)
Act 1996 section 17, it does not become effective
before it is confirmed under that section or the expiry
of any extension of time notified under subsection (2).
(5) Despite the Statutory Corporations (Liability of
20 Directors) Act 1996 section 17(4), the Minister may,
when confirming a direction under that section, extend
the time for the direction to become effective and is to
notify the Board of the extension.
(6) The Minister must cause a copy of a direction to be laid
25 before each House of Parliament or dealt with under
section 78 --
(a) within 14 days after the direction is given; or
(b) if the direction is the subject of a notice under
the Statutory Corporations (Liability of
30 Directors) Act 1996 section 17, within 14 days
after it is confirmed under that section.
(7) The text of a direction is to be included in the annual
report submitted by the accountable authority of the
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State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 16
Board under the Financial Management Act 2006
Part 5.
78. Supplementary provision about laying documents
before Parliament
5 (1) If a provision of this Act requires a person to cause a
document to be laid before each House of Parliament
or dealt with under this section within a period and --
(a) at the commencement of the period, a House of
Parliament is not sitting; and
10 (b) the person is of the opinion that the House will
not sit during that period,
the person must transmit a copy of the document to the
Clerk of that House.
(2) A copy of a document transmitted to the Clerk of a
15 House is to be regarded as having been laid before that
House.
(3) The laying of a copy of a document that is to be
regarded as having occurred under subsection (2) is to
be recorded in the Minutes, or Votes and Proceedings,
20 of the House on the first sitting day of the House after
the Clerk received the copy.
79. Regulations
(1) The Governor may make regulations prescribing all
matters that are required or permitted by this Act or the
25 State Superannuation (Transitional and Consequential
Provisions) Act 2000 section 26 to be prescribed, or are
necessary or convenient to be prescribed for giving
effect to the purposes of this Act.
(2) Regulations that prescribe an authority, body or person
30 for the purposes of the definition of "Employer" may
specify as the day on which they come into operation a
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State Superannuation Amendment Bill 2007
Amendments to allow for transfer Part 2
s. 17
day that is earlier than the day on which they are
published in the Gazette.
(3) Regulations of the kind referred to in subsection (2)
cannot be made if they will or may affect a person,
5 except the Crown or an Employer, by --
(a) prejudicing rights that existed before the
regulation was published; or
(b) imposing liabilities in respect of anything that
occurred before the regulation was published.
10 ".
17. Schedule 1 amended
Schedule 1 clause 6(1)(c) is amended by deleting "Corporations
Act 2001 of the Commonwealth" and inserting instead --
" Corporations Act ".
15 18. Schedule 2 amended
(1) Schedule 2 clause 9(1)(b) is amended by deleting "or to the
former Superannuation Board constituted under the S&FB Act".
(2) Schedule 2 clause 9(2)(e) is amended by deleting "Corporations
Act 2001 of the Commonwealth)" and inserting instead --
20 " Corporations Act) ".
19. Conjunctions inserted
(1) After each of the provisions listed in the Table to this subsection
the following is inserted --
" and ".
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State Superannuation Amendment Bill 2007
Part 2 Amendments to allow for transfer
s. 19
Table
s. 6(2)(a) s. 19(2)(a), (b), (b)(i),
s. 8(1)(a) (b)(ii), (c) and (d)
s. 10(2)(a) s. 24(1)(a)
s. 15(1)(a), (b) and (c) s. 33(1)(a)
Sch. 2 cl. 4(a)
(2) After each of the provisions listed in the Table to this subsection
the following is inserted --
" or ".
5 Table
s. 3(1) (defn. of Sch. 1 cl. 6(1)(a) and (b),
"Employer" para. (a) (2)(a), (b), (c), (d)
and (b)) and (e)
s. 26(1)(a) and (b) Sch. 2 cl. 3(a)
s. 34(4)(a), (b) and (c) Sch. 2 cl. 9(1)(a),
s. 36(4) (defn. of (2)(a), (b) and (c)
"beneficiary" para. (a)) Sch. 2 cl. 10(3)(a)
page 46
State Superannuation Amendment Bill 2007
Amendments at transfer time Part 3
s. 20
Part 3 -- Amendments at transfer time
20. Section 3 amended
Section 3(1) is amended as follows:
(a) in the definition of "Board" by deleting "Government
5 Employees" and inserting instead --
" State ";
(b) by deleting the definition of "GES Act".
21. Part 2 inserted
After section 4 the following Part is inserted --
10 "
Part 2 -- Employer contribution obligation
4A. Terms used in this Part
(1) In this Part --
"chosen fund" means a fund chosen by an employee
15 in accordance with the SGA Act Part 3A
Division 4;
"employee" has the meaning given in the SGA Act
section 12;
"fund" has the meaning given in the SGA Act
20 section 32E;
"individual superannuation guarantee shortfall" has
the meaning given in the SGA Act section 19;
"prescribed fund", in relation to an employee, means
the fund prescribed by the regulations for that
25 employee;
"SGA Act" means the Superannuation Guarantee
(Administration) Act 1992 (Commonwealth);
page 47
State Superannuation Amendment Bill 2007
Part 3 Amendments at transfer time
s. 21
"superannuation guarantee charge" means the
charge imposed by the Superannuation Guarantee
Charge Act 1992 (Commonwealth).
(2) For the purposes of this Part an employee is to be
5 regarded as an employee of the person or body
prescribed by the regulations for that employee.
4B. Employers to make contributions
(1) An Employer must make contributions to the
prescribed fund for each of its employees such that the
10 Employer will avoid incurring an individual
superannuation guarantee shortfall for the employee.
(2) If an Employer becomes liable to pay the
superannuation guarantee charge as a result of
incurring an individual superannuation guarantee
15 shortfall for an employee for a period, the Employer's
obligation under subsection (1) to contribute for that
employee for that period ceases.
(3) This section does not apply in relation to an employee
who is in a class of employees prescribed by the
20 regulations.
4C. Regulations may require extra contributions
Regulations made under section 79 may require an
Employer to make contributions to a fund in addition to
any contributions the Employer is required to make
25 under section 4B or any other written law.
4D. No contributions to other funds
An Employer must not make contributions for an
employee to a fund other than the prescribed fund
unless the Treasurer has approved the making of those
30 contributions.
".
page 48
State Superannuation Amendment Bill 2007
Amendments at transfer time Part 3
s. 22
22. Section 4E amended
(1) Section 4E(1) is amended as follows:
(a) by deleting "the Schedules --" and inserting instead --
" Schedules 1 and 2 -- ";
5 (b) in the definition of "Fund" by deleting "Government
Employees" and inserting instead --
" State ";
(c) in the definition of "scheme" by deleting "or established
under this Part";
10 (d) by deleting the definition of "subsidiary".
(2) Section 4E(2) is repealed.
23. Division heading amended
The heading to Part 3 Division 2 is amended by deleting
"Government Employees" and inserting instead --
15 " State ".
24. Section 5 amended
(1) Section 5(1) is repealed and the following subsection is inserted
instead --
"
20 (1) There is a body called the State Superannuation Board.
".
(2) Section 5(3) is repealed and the following subsection is inserted
instead --
"
25 (3) The Board is a continuation of, and the same legal
entity as, the body that was, before the transfer time,
called the Government Employees Superannuation
Board.
".
30 Note: The heading to section 5 will be altered by deleting "Government
Employees" and inserting instead "State".
page 49
State Superannuation Amendment Bill 2007
Part 3 Amendments at transfer time
s. 25
25. Section 6 amended
(1) Section 6(1) is amended as follows:
(a) after paragraph (c) by inserting --
"
5 (ca) with the approval of the Treasurer, administer
any other superannuation scheme established
by or under a written law; and
";
(b) by deleting paragraph (e) and "and" after it and inserting
10 instead --
"
(e) facilitate the provision of services to members
of superannuation schemes administered by the
Board and to Employers; and
15 ".
(2) Section 6(3) is amended by inserting after "trading names" --
"
, being names that are not, and do not include, the term "GESB"
".
20 26. Section 7 amended
(1) Section 7(2)(c), (ca), (d), (e) and (f) and "and" after each of
them are deleted.
(2) After section 7(3) the following subsection is inserted --
"
25 (4) Without limiting subsection (1) the Board may charge
a fee for administering a superannuation scheme of a
kind referred to in section 6(1)(ca).
".
27. Sections 7A and 7B repealed
30 Sections 7A and 7B are repealed.
page 50
State Superannuation Amendment Bill 2007
Amendments at transfer time Part 3
s. 28
28. Section 8 amended
Section 8(1) is repealed and the following subsections are
inserted instead --
"
5 (1) The Board comprises the prescribed number of
directors --
(a) of whom one is to be appointed by the
Governor as chairman on the nomination of the
Treasurer; and
10 (b) of the others of whom --
(i) half are to be appointed by the Governor
as Employer directors; and
(ii) half are to be elected or appointed in
accordance with the regulations as
15 Member directors.
(1a) The number prescribed for the purposes of
subsection (1) must be an odd number not exceeding 7.
".
29. Section 11 replaced
20 Section 11 is repealed and the following section is inserted
instead --
"
11. Use of government staff and facilities
(1) The Board may by arrangement with the relevant
25 employer make use, either full-time or part-time, of the
services of any officer or employee --
(a) in the Public Service; or
(b) in a State agency; or
(c) otherwise in the service of the State.
30 (2) The Board may by arrangement with --
(a) a department of the Public Service; or
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State Superannuation Amendment Bill 2007
Part 3 Amendments at transfer time
s. 30
(b) a State agency,
make use of any facilities of the department or agency.
(3) An arrangement under subsection (1) or (2) is to be
made on terms, including as to payment, agreed to by
5 the parties.
".
30. Section 12 amended
Section 12(1) is amended by deleting "section 23" and inserting
instead --
10 " section 18(4) ".
31. Division heading amended
The heading to Part 3 Division 3 is amended by deleting
"Government Employees" and inserting instead --
" State ".
15 32. Section 14 amended
(1) Section 14(1) is amended by deleting "Government Employees"
and inserting instead --
" State ".
(2) Section 14(2) is repealed and the following subsection is
20 inserted instead --
"
(2) The State Superannuation Fund is a continuation of,
and the same fund as, the fund that was, before the
transfer time, called the Government Employees
25 Superannuation Fund.
".
Note: The heading to section 14 will be deleted and the following heading will
be inserted instead "State Superannuation Fund".
page 52
State Superannuation Amendment Bill 2007
Amendments at transfer time Part 3
s. 33
33. Section 15 amended
Section 15(2)(ba) and "and" after it are deleted.
34. Section 18 amended
(1) Section 18(3) is amended by deleting from "an investment," to
5 the end of the subsection and inserting instead --
"
an investment; and
(c) mix investments with investments of any other
person,
10 as if it were dealing with its own property as it
considers appropriate.
".
(2) After section 18(3) the following subsection is inserted --
"
15 (4) Subject to the Treasurer's guidelines the Board may
delegate any or all of its functions under this section to
a person approved by the Treasurer.
".
35. Section 23 repealed
20 Section 23 is repealed.
36. Section 28 replaced
Section 28 is repealed and the following section is inserted in
Part 3 Division 3 --
"
25 28. Application of Financial Management Act 2006 and
Auditor General Act 2006
The provisions of the Financial Management Act 2006
and the Auditor General Act 2006 regulating the
financial administration, audit and reporting of
30 agencies apply to and in respect of the Board and its
operations.
".
page 53
State Superannuation Amendment Bill 2007
Part 3 Amendments at transfer time
s. 37
37. Section 30 repealed
Section 30 is repealed.
38. Section 33 amended
Section 33(2) is amended as follows:
5 (a) in paragraph (b) by deleting "the provision by the Board
of, or" and ", products and";
(b) in paragraph (d) by inserting after "investments" --
" , and the delegation of functions, ";
(c) in paragraph (e) by deleting "sections 18, 23, 24
10 and 38(5);" and inserting instead --
" sections 18 and 24; ";
(d) by deleting paragraphs (h) and (i) and "and" after each
of them.
39. Sections 33A and 33B repealed
15 Sections 33A and 33B are repealed.
40. Section 36 amended
(1) Section 36(1)(a) and (3) are amended by deleting "or a
subsidiary".
(2) Section 36(2)(b) is amended by inserting after "facilities" --
20 " (including any being used in accordance with section 11) ".
(3) Section 36(4) is amended in the definition of "beneficiary" by
deleting paragraph (c) and inserting instead --
"
(c) any other person to whom a benefit has been
25 or is being paid, or is or may become
payable;
".
page 54
State Superannuation Amendment Bill 2007
Amendments at transfer time Part 3
s. 41
41. Section 37 repealed
Section 37 is repealed.
42. Section 38 amended
(1) Section 38(2) is amended as follows:
5 (a) by deleting paragraph (a) and "and" after it;
(b) by deleting paragraph (j) and "and" after it and inserting
instead --
"
(j) facilitation by the Board of the provision of
10 services under section 6(1)(e); and
";
(c) after paragraph (l) by deleting the full stop and inserting
instead --
"
15 ; and
(m) the discontinuance of a scheme.
".
(2) Section 38(5) is repealed.
(3) Section 38(8) is repealed and the following subsections are
20 inserted instead --
"
(7) Regulations cannot be made after the transfer time if
they would permit a person to become --
(a) a member of the West State scheme or the
25 scheme continued by section 29(1)(b); or
(b) a contributor or subscriber to a scheme
continued by section 29(1)(c) or (d).
(7a) Subsection (7) does not affect any regulation, or
provision of the Superannuation and Family Benefits
30 Act 1938 continued under the State Superannuation
page 55
State Superannuation Amendment Bill 2007
Part 3 Amendments at transfer time
s. 43
(Transitional and Consequential Provisions) Act 2000
section 26(1)(c), that is in force immediately before the
transfer time.
(8) Regulations providing for the discontinuance of a
5 scheme cannot be made unless --
(a) there are no members, contributors or
subscribers left in the scheme; or
(b) the regulations provide for the transfer of
members', contributors' or subscribers' benefits
10 in the scheme to another superannuation fund
or scheme in a manner that, if each scheme
affected by the regulations were a regulated
superannuation fund, would be permitted under
the SIS Act.
15 ".
43. Section 76 inserted
Before section 77 the following section is inserted in Part 5 --
"
76. Restriction on other public sector superannuation
20 schemes
(1) An Employer may establish a superannuation scheme
or fund for the benefit of persons who work for the
Employer, if and only if the Treasurer has approved the
establishment of that scheme or fund.
25 (2) An approval given by the Treasurer under this section
must be in writing and may relate to --
(a) a particular Employer or class of Employers; or
(b) a particular person who works for an Employer,
or class of such persons; or
30 (c) a particular scheme or fund or class of schemes
or funds.
page 56
State Superannuation Amendment Bill 2007
Amendments at transfer time Part 3
s. 44
(3) This section applies despite any other written law.
".
44. Section 79 amended
After section 79(3) the following subsection is inserted --
5 "
(4) If the Minister responsible for the administration of this
Act is not the Treasurer, regulations cannot be made
for the purposes of this Act unless they have been
approved by the Treasurer.
10 ".
45. Section 80 inserted
After section 79 the following section is inserted --
"
80. Transitional and saving provisions
15 Schedule 3 sets out transitional and savings provisions.
".
46. Schedule 1 amended
(1) The amendments in this section are to Schedule 1.
(2) The Schedule heading is amended by deleting "Government
20 Employees" and inserting instead --
" State ".
(3) Clauses 1(2), 2(2) and 3 are repealed.
(4) Clause 4(1) is amended by deleting "section 8(1)(b)" and
inserting instead --
25 " section 8(1)(b)(i) ".
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State Superannuation Amendment Bill 2007
Part 3 Amendments at transfer time
s. 47
(5) Clause 4(2) is amended by deleting "under section 8(1)(c)" and
inserting instead --
" or appointed under section 8(1)(b)(ii) ".
(6) Clause 6(1) is amended by deleting "A casual vacancy in the
5 office of a director occurs if the director --" and inserting
instead --
" A person ceases to be a director if the person -- ".
(7) Clause 6(2)(c) and "or" after it are deleted and the following is
inserted instead --
10 "
(c) is incompetent or is otherwise not a fit and proper
person to be a director; or
".
(8) Clause 6(3) and (4) are repealed.
15 Note: The heading to clause 6 will be deleted and the following heading will
be inserted instead "Vacation of office by director".
47. Schedule 2 amended
(1) The amendments in this section are to Schedule 2.
(2) Clause 2 is amended by deleting "5 directors." and inserting
20 instead --
" two-thirds of the total number of directors. ".
(3) Clause 4(c) is amended by deleting "5 or more directors" and
inserting instead --
" at least the number of directors required to form a quorum ".
page 58
State Superannuation Amendment Bill 2007
Amendments at transfer time Part 3
s. 48
48. Schedule 3 replaced
Schedule 3 is repealed and the following Schedule is inserted
instead --
"
5 Schedule 3 -- Transitional and saving provisions
[s. 80]
Division 1 -- Provisions for State Superannuation
Amendment Act 2007
1. References to Board and Fund
10 (1) A reference in a written law or other document to the
Government Employees Superannuation Board may be read
as if it had been amended to be a reference to the State
Superannuation Board.
(2) A reference in a written law or other document to the
15 Government Employees Superannuation Fund may be read
as if it had been amended to be a reference to the Fund as
defined in the State Superannuation Act 2000 section 4E.
(3) This clause applies to the extent that a contrary intention
does not appear.
20 2. Transitional provision in relation to Minister
After the transfer time anything that was done or omitted to
be done by, to, or in relation to, the Minister before the
transfer time and is of any ongoing effect, has the same
effect after that time as if it had been done or was omitted to
25 be done by, to, or in relation to, the Treasurer.
".
page 59
State Superannuation Amendment Bill 2007
Part 3 Amendments at transfer time
s. 49
49. Various references to Minister amended
(1) The provisions listed in the Table to this subsection are
amended by deleting "Minister" in each place where it occurs
and inserting instead --
5 " Treasurer ".
Table
s. 3(1) (defn. of "actuary") Sch. 1 cl. 2(1)
s. 34(1) Sch. 1 cl. 6(1), (2)
s. 35(1) and (2) Sch. 1 cl. 7 (first place only)
s. 36(1), (2), (3) and (4) Sch. 2 cl. 11(2)
(defn. of Sch. 2 cl. 12(3)
"information")
s. 77(2), (3), (5) and (6)
Sch. 1 cl. 1(1)
(2) Section 6(1)(d) is amended by deleting "Minister and the".
(3) Section 36(1) is amended by deleting "Minister's" and inserting
instead --
10 " Treasurer's ".
(4) Section 77(1) is amended as follows:
(a) after the definition of "direction" by deleting the
semicolon and inserting instead a full stop;
(b) by deleting the definition of "Minister".
15 Note: The heading to sections 35 and 36 will be altered by deleting "Minister"
and inserting instead "Treasurer".
page 60
State Superannuation Amendment Bill 2007
Amendments to introduce choice Part 4
s. 50
Part 4 -- Amendments to introduce choice
50. Section 4B amended
(1) Section 4B(1) is amended by deleting "the prescribed fund" and
inserting instead --
5 " a fund ".
(2) After section 4B(1) the following subsections are inserted --
"
(1a) The contributions required by subsection (1) to be
made for an employee must be made to --
10 (a) a chosen fund for the employee; or
(b) if at the time the contribution is made there is
no chosen fund for the employee, the
prescribed fund.
(1b) Except as prescribed in the regulations, an Employer
15 must comply with the requirements of the SGA Act
Part 3A Division 6, even if it is not required by that Act
to do so, and in doing so must specify the prescribed
fund as the fund to which the Employer will contribute
if the employee does not choose a different fund.
20 ".
51. Section 4D repealed
Section 4D is repealed.
page 61
State Superannuation Amendment Bill 2007
Part 5 Amendments relating to West State scheme
Division 1 West State in main transfer
s. 52
Part 5 -- Amendments relating to West State scheme
Division 1 -- West State in main transfer
Subdivision 1 -- Amendments to allow transfer
52. Section 29 amended
5 After section 29(1) the following subsection is inserted --
"
(2) At the transfer time the West State scheme is
discontinued.
".
10 53. Section 41 amended
Section 41(a) is amended by inserting after "Part 3" --
" and the West State scheme ".
54. Section 42 amended
Section 42(1) is amended in the definition of "statutory scheme"
15 by deleting "time, but does not include a" and inserting
instead --
"
time or the West State scheme, but does not include
any other
20 ".
55. Section 56 amended
Section 56(3) is amended after paragraph (c) by deleting the full
stop and inserting instead --
"
25 ; and
(d) any indemnity or guarantee given under
section 60A.
".
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Amendments relating to West State scheme Part 5
West State in main transfer Division 1
s. 56
56. Section 60A inserted
After section 60 the following section is inserted in
Subdivision 2 --
"
5 60A. Treasurer may give indemnity or guarantee
(1) The Treasurer may, in the name and on behalf of the
State, give to TrustCo --
(a) an indemnity against liability for; or
(b) a guarantee of payment in respect of,
10 any financial obligations of TrustCo as trustee of
GESB Superannuation relating to the payment of
benefits to or in respect of transferring members who
were, immediately before the transfer time, members of
the West State scheme.
15 (2) An indemnity or guarantee is to be in the form, and on
the terms and conditions, determined by the Treasurer.
(3) The due payment of money payable by the Treasurer
under an indemnity or guarantee is to be charged to the
Consolidated Account, which this subsection
20 appropriates accordingly.
(4) The Treasurer is to cause any amounts received or
recovered, from TrustCo or otherwise, in respect of any
payment made by the Treasurer under an indemnity or
guarantee to be credited to the Consolidated Account.
25 ".
Subdivision 2 -- Amendments at transfer time
57. Section 4E amended
Section 4E(1) is amended in the definition of "scheme" by
deleting "section 29;" and inserting instead --
30 " section 29(1)(b), (c) or (d); ".
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Division 2 West State in later transfer
s. 58
58. Section 22 repealed
Section 22 is repealed.
59. Section 33 amended
Section 33(2)(g) and "and" after it are deleted.
5 60. Section 38 amended
(1) Section 38(3)(b)(i) is amended by deleting "the West State
scheme or".
(2) Section 38(7)(a) is amended by deleting "the West State
scheme or".
10 Division 2 -- West State in later transfer
Subdivision 1 -- Amendments to allow transfer
61. Section 29 amended
After section 29(1) the following subsection is inserted --
"
15 (2) At the time fixed under section 60B the West State
scheme is discontinued.
".
62. Section 41 amended
Section 41(a) is amended by inserting after "Part 3" --
20 " and the West State scheme ".
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West State in later transfer Division 2
s. 63
63. Subdivision 2A inserted
After section 60 the following Subdivision is inserted --
"
Subdivision 2A -- Transfer of West State scheme
5 60A. Terms used in this Subdivision
In this Subdivision --
"transferring WSS member" means a person who
becomes a member of GESB Superannuation by
operation of section 60E(1)(a);
10 "WSS assignee" means --
(a) in relation to an asset or liability specified in
a WSS transfer order under
section 60C(1)(a) or (b), the person specified
in the order as the person to whom the asset
15 or liability is to be assigned; or
(b) in relation to a liability assigned by operation
of section 60D(b), TrustCo; or
(c) in relation to proceedings specified in a
WSS transfer order under section 60C(1)(c),
20 the person specified in the order as the
person who is to be substituted for the Board
as a party to the proceedings; or
(d) in relation to an agreement or document
specified in a WSS transfer order under
25 section 60C(1)(d), the person specified in the
order as the person a reference to whom is to
be treated as being substituted for a reference
in the agreement or document to the Board;
"WSS transfer order" means an order made under
30 section 60C;
"WSS transfer time" means the time fixed under
section 60B.
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60B. Treasurer to fix WSS transfer time
(1) The Treasurer may, by order published in the Gazette,
fix the WSS transfer time.
(2) The time fixed under subsection (1) cannot be before
5 the transfer time.
(3) The Treasurer must not make an order under
subsection (1) unless the Treasurer has received from
an actuary a certificate --
(a) given not more than 30 working days before the
10 time to be fixed as the WSS transfer time; and
(b) certifying that the actuary considers that if the
WSS transfer time were the time when the
certificate is given, the assets assigned by
operation of section 60D to TrustCo as trustee
15 of GESB Superannuation would be sufficient
and appropriate to enable TrustCo to meet its
obligations as trustee of GESB Superannuation
in relation to transferring WSS members.
(4) In giving a certificate for the purposes of subsection (3)
20 an actuary is to have regard to --
(a) the type and value of the assets and liabilities to
be assigned by operation of section 60D to
TrustCo as trustee of GESB Superannuation;
and
25 (b) the investment options selected by transferring
WSS members; and
(c) the amount by which the actuary reasonably
considers a prudent trustee of GESB
Superannuation would, in the ordinary course
30 of the prudent management of the fund,
increase the level of reserves maintained in the
fund as a consequence of the operation of this
Subdivision; and
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s. 63
(d) any indemnity or guarantee given under
section 60G.
(5) The Treasurer must not make an order under
subsection (1) unless satisfied that the trust deed by
5 which GESB Superannuation is governed contains
provisions to the effect that if the WSS transfer time
were the time when the order is made --
(a) each existing member would be eligible to
become a member of GESB Superannuation;
10 and
(b) existing members would become members in
the class of membership in GESB
Superannuation specified in the deed; and
(c) an existing member's benefit entitlements as a
15 member of GESB Superannuation, considered
as a whole and disregarding any compliance
changes, would be no less favourable than the
member's existing benefit entitlements; and
(d) an existing member's obligations as a member
20 of GESB Superannuation would be no greater
than the member's existing obligations.
(6) In subsection (5) --
"compliance change", in relation to a member's
benefit entitlements, means an unfavourable
25 change in those entitlements to the extent that it
would --
(a) be necessary for compliance with, or occur
as a consequence of the application of, the
SIS Act, the Income Tax Assessment
30 Act 1936 (Commonwealth) or any other law
of the Commonwealth; or
(b) occur as a result of the member's benefits
ceasing to be benefits payable under a
scheme for the purposes of section 31;
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Division 2 West State in later transfer
s. 63
"existing" means existing under the West State scheme
at the time the Treasurer makes the order under
subsection (1).
(7) The Treasurer is to cause a copy of --
5 (a) the WSS transfer order; and
(b) the actuarial certificate referred to in
subsection (3); and
(c) any other actuarial advice received by the
Treasurer in relation to the assets and liabilities
10 to be assigned by operation of section 60D; and
(d) the order made under subsection (1),
to be laid before each House of Parliament or dealt
with under section 78 within 3 working days after the
order made under subsection (1) is published in the
15 Gazette.
60C. Treasurer to make WSS transfer order
(1) For the purpose of this Part the Treasurer may, by one
or more orders published in the Gazette, specify --
(a) the assets --
20 (i) in the statutory fund; or
(ii) of the Board that are not in the statutory
fund,
that are to be assigned by operation of
section 60D(a) to the person specified in the
25 order; and
(b) any liability of the Board --
(i) not arising under the West State
scheme; or
(ii) arising under the West State scheme but
30 that will not be assigned by operation of
section 60D(b),
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s. 63
that is to be assigned by operation of
section 60D(c) to the person specified in the
order; and
(c) any proceedings in which the person specified
5 in the order is to be substituted by operation of
section 60D(d) for the Board as a party to the
proceedings; and
(d) any agreement or document relating to an asset
or liability that is to be assigned by operation of
10 section 60D that, unless otherwise expressly
specified in the order, is to be taken to be
amended by operation of section 60D(e) by
substituting for a reference in it to the Board a
reference to the person specified in the order.
15 (2) The person specified in a WSS transfer order may be
MutualCo or TrustCo or a subsidiary of either of them.
(3) A WSS transfer order may specify a thing by
describing it as a member of a class of things.
(4) A WSS transfer order may specify a thing by reference
20 to a schedule that need not be published in the Gazette
but must be --
(a) signed by the Treasurer; and
(b) available for public inspection.
(5) Anything specified in a schedule referred to in a
25 WSS transfer order is taken to be specified in the order.
(6) The Treasurer may, by order published in the Gazette,
amend a WSS transfer order, or a schedule referred to
in a WSS transfer order, to correct --
(a) a clerical mistake; or
30 (b) an accidental slip or omission; or
(c) the misdescription of a person or thing.
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Division 2 West State in later transfer
s. 63
(7) A WSS transfer order, or an order under subsection (6),
can only be made before the WSS transfer time.
60D. Transfer of assets, liabilities etc.
At the WSS transfer time, by operation of this
5 section --
(a) an asset specified in a WSS transfer order under
section 60C(1)(a) is assigned to the
WSS assignee; and
(b) every liability of the Board or of the State to
10 pay a benefit arising under the West State
scheme to or in relation to a transferring
WSS member is assigned to, and becomes a
liability of, TrustCo as trustee of GESB
Superannuation; and
15 (c) a liability specified in a WSS transfer order
under section 60C(1)(b) is assigned to, and
becomes a liability of, the WSS assignee; and
(d) in proceedings specified in a WSS transfer
order under section 60C(1)(c) the
20 WSS assignee is substituted for the Board as a
party to the proceedings; and
(e) an agreement or document specified in a
WSS transfer order under section 60C(1)(d) is,
unless otherwise expressly specified in the
25 order, taken to be amended by substituting for
any reference in it to the Board a reference to
the WSS assignee.
60E. Transfer of members
(1) At the WSS transfer time, by operation of this section,
30 a person who was, immediately before the
WSS transfer time, a member of the West State
scheme --
(a) becomes a member of GESB Superannuation;
and
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West State in later transfer Division 2
s. 63
(b) ceases to be a member of the West State
scheme.
(2) The Board and MutualCo are to take the necessary
steps to ensure that at the WSS transfer time every
5 transferring WSS member becomes a member of
MutualCo.
(3) For the purposes of subsection (2), the Board is
appointed as attorney for each person who is a member
of the West State scheme for the purpose of executing
10 any documents the Board considers necessary or
desirable --
(a) to enable that person, if he or she becomes a
transferring WSS member, to become a
member of MutualCo; and
15 (b) to nominate for the person how MutualCo may
send or make available to the person notices,
reports and other communications that
MutualCo is required under the Corporations
Act to send to members of the company.
20 60F. Effect on rights, remedies etc.
After the WSS transfer time --
(a) any proceedings that might have been
commenced by or against the Board or the State
in relation to an asset or liability assigned by
25 operation of section 60D --
(i) may be commenced by or against the
WSS assignee; and
(ii) cannot be commenced by or against the
Board or the State;
30 and
(b) any remedy that would have been available to
or against the Board or the State in relation to
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Division 2 West State in later transfer
s. 63
an asset or liability assigned by operation of
section 60D --
(i) is available to or against the
WSS assignee; and
5 (ii) is not available to or against the Board
or the State;
and
(c) anything relating to an asset or liability
assigned by operation of section 60D that was
10 done or omitted to be done by, to, or in respect
of, the Board or the State before the
WSS transfer time and is of any ongoing effect
is to be taken to have been done or omitted to
be done by, to, or in respect of, the
15 WSS assignee.
60G. Treasurer may give indemnity or guarantee
(1) The Treasurer may, in the name and on behalf of the
State, give to TrustCo --
(a) an indemnity against liability for; or
20 (b) a guarantee of payment in respect of,
any financial obligations of TrustCo as trustee of
GESB Superannuation relating to the payment of
benefits to or in respect of transferring WSS members.
(2) An indemnity or guarantee is to be in the form, and on
25 the terms and conditions, determined by the Treasurer.
(3) The due payment of money payable by the Treasurer
under an indemnity or guarantee is to be charged to the
Consolidated Account, which this subsection
appropriates accordingly.
30 (4) The Treasurer is to cause any amounts received or
recovered, from TrustCo or otherwise, in respect of any
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West State separated into sub-fund Division 3
s. 64
payment made by the Treasurer under an indemnity or
guarantee to be credited to the Consolidated Account.
".
Subdivision 2 -- Amendments at WSS transfer time
5 64. Section 4E amended
Section 4E(1) is amended in the definition of "scheme" by
deleting "section 29;" and inserting instead --
" section 29(1)(b), (c) or (d); ".
65. Section 22 repealed
10 Section 22 is repealed.
66. Section 33 amended
Section 33(2)(g) and "and" after it are deleted.
67. Section 38 amended
(1) Section 38(3)(b)(i) is amended by deleting "the West State
15 scheme or".
(2) Section 38(7)(a) is amended by deleting "the West State
scheme or".
Division 3 -- West State separated into sub-fund
Subdivision 1 -- Amendments to allow separation
20 68. Section 14 amended
After section 14(2) the following subsections are inserted --
"
(3) After the time fixed under section 75K the State
Superannuation Fund consists of 2 sub-funds called --
25 (a) the Defined Benefit Fund; and
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Division 3 West State separated into sub-fund
s. 69
(b) the West State Fund.
(4) If the West State scheme is discontinued,
subsection (3) expires.
".
5 69. Section 29 amended
After section 29(1) the following subsection is inserted --
"
(2) After the time fixed under section 75K --
(a) the details of the West State scheme are to be
10 set out in governing rules under section 75E;
and
(b) the West State scheme may, if the governing
rules permit, be discontinued in accordance
with those rules.
15 ".
70. Section 52 amended
Section 52(2) is amended as follows:
(a) in paragraph (b) by deleting "and GESB
Superannuation" and inserting instead --
20 "
, GESB Superannuation and the West State
scheme
";
(b) in paragraph (c) by inserting after "GESB
25 Superannuation" --
" and the West State scheme ".
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West State separated into sub-fund Division 3
s. 71
71. Part 4A inserted
After section 75 the following Part is inserted --
"
Part 4A -- West State scheme
5 Division 1 -- Preliminary
75A. Purpose of this Part
The purpose of this Part is to --
(a) provide for the assets in the statutory fund to be
divided into 2 sub-funds, one relating to the
10 West State scheme and one relating to the other
schemes continued by section 29; and
(b) provide for the details of the West State scheme
to be set out in governing rules; and
(c) provide for the Board's powers and duties in
15 relation to the West State scheme to be
transferred to TrustCo; and
(d) enable and facilitate a convenient transition of
the West State scheme to the new structure.
75B. Terms used in this Part
20 (1) In this Part --
"governing rules" means the governing rules made
under section 75E;
"responsible entity" means the responsible entity of
the West State scheme under section 75C;
25 "separation time" means the time fixed under
section 75K;
"West State Fund" means the sub-fund of the State
Superannuation Fund referred to in
section 14(3)(b) and called the West State Fund;
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Division 3 West State separated into sub-fund
s. 71
"West State member" means a member of the West
State scheme.
(2) In this Part each of the following terms has the
meaning given in section 42 --
5 (a) "MutualCo";
(b) "statutory fund";
(c) "subsidiary";
(d) "TrustCo".
Division 2 -- Responsible entity and governing rules
10 75C. Responsible entity
(1) At the separation time, TrustCo becomes the
responsible entity for the West State scheme.
(2) If TrustCo ceases to be the responsible entity, a
replacement responsible entity is to be appointed in
15 accordance with the governing rules.
75D. Responsible entity and directors to be indemnified
(1) The responsible entity and the directors of that entity
are each entitled to be indemnified out of the assets in
the West State Fund against a liability --
20 (a) assigned by operation of section 75N; or
(b) properly incurred while acting as the
responsible entity or a director of the
responsible entity (as the case requires).
(2) Subsection (1) does not entitle a person to be
25 indemnified out of the assets in the West State Fund
against a liability --
(a) that arises because the person --
(i) fails to act honestly in a matter
concerning the West State scheme; or
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s. 71
(ii) intentionally or recklessly fails to
exercise due care and diligence in the
exercise of the person's functions in
relation to the West State scheme;
5 or
(b) for a monetary penalty under a civil penalty
order as defined in the SIS Act section 10.
75E. Governing rules
(1) The Treasurer may make governing rules for the West
10 State scheme.
(2) Governing rules are not subsidiary legislation for the
purposes of the Interpretation Act 1984.
(3) The Interpretation Act 1984 section 43 (other than
subsections (4) and (6)) applies in relation to the
15 making of the governing rules by the Treasurer under
subsection (1) as if they were subsidiary legislation.
(4) Governing rules made under subsection (1) --
(a) may be amended or repealed by the responsible
entity in the manner, and subject to any
20 conditions, specified in the governing rules; and
(b) cannot be amended or repealed by the
Treasurer.
75F. Content of governing rules
(1) The governing rules may make provision for the
25 following --
(a) the functions, rights and liabilities of the
responsible entity;
(b) the rights and liabilities of West State members;
(c) the rights and liabilities of Employers in
30 relation to the West State scheme;
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(d) the appointment of a replacement responsible
entity;
(e) the discontinuance of the West State scheme;
(f) amendment of the governing rules;
5 (g) any other matters that are required, necessary or
convenient to be provided for, or in relation to,
the West State scheme.
(2) The governing rules may provide that certain
provisions of the rules cannot be amended without the
10 approval of the Treasurer.
75G. Governing rules to contain certain provisions when
made
(1) In this section --
"constitutionally protected fund" has the meaning
15 given in the Income Tax Assessment Act 1936
(Commonwealth) section 267;
"compliance change", in relation to a West State
member's benefit entitlements, means an
unfavourable change in those entitlements to the
20 extent that it would --
(a) be necessary for compliance with, or occur
as a consequence of the application of, the
SIS Act, the Income Tax Assessment
Act 1936 (Commonwealth) or any other law
25 of the Commonwealth; or
(b) occur as a result of the member's benefits
ceasing to be benefits payable under a
scheme for the purposes of section 31;
"existing" means existing under the West State scheme
30 at the time the Treasurer makes the governing
rules;
"regulatory provision" has the meaning given in the
SIS Act section 38A;
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s. 71
"successor fund" has the meaning given in the
Superannuation Industry (Supervision)
Regulations 1994 (Commonwealth)
regulation 1.03(1).
5 (2) The Treasurer must not make governing rules under
section 75E(1) unless satisfied that compliance with the
terms of the governing rules would not cause the
responsible entity to contravene a regulatory provision
in relation to the West State scheme.
10 (3) The Treasurer must not make governing rules under
section 75E(1) unless satisfied that the rules contain
provisions to the effect that, if the separation time were
the time when the rules are made --
(a) the coming into operation of the governing
15 rules would not cause any existing member to
cease to be a West State member; and
(b) an existing member's benefit entitlements
under the governing rules, considered as a
whole and disregarding any compliance
20 changes, would be no less favourable than the
member's existing benefit entitlements; and
(c) an existing member's obligations under the
governing rules would be no greater than the
member's existing obligations.
25 (4) The Treasurer must not make governing rules under
section 75E(1) unless satisfied that the rules contain
provisions to the effect that --
(a) a West State member's benefits under the West
State scheme must not be transferred to a
30 successor fund unless --
(i) the member has consented to the
transfer; or
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(ii) the transfer has been approved by the
Treasurer;
and
(b) the responsible entity --
5 (i) must not, without the Treasurer's
approval, cause, or attempt to cause, the
West State scheme to cease to be a
constitutionally protected fund; and
(ii) must, unless the Treasurer otherwise
10 approves, make all reasonable efforts to
ensure that the West State scheme does
not cease be a constitutionally protected
fund;
and
15 (c) the West State scheme cannot be discontinued
without the Treasurer's approval; and
(d) if it is necessary to appoint a new responsible
entity the appointment is to be made by
MutualCo; and
20 (e) after the separation time no person can become
a West State member without the Treasurer's
approval; and
(f) the provisions of the governing rules that have
an effect described in this subsection (including
25 this paragraph) cannot be amended without the
Treasurer's approval.
75GA. Notice of refusal of approval to be tabled
If the Treasurer refuses to approve the doing of
something which, under the governing rules, cannot be
30 done without the Treasurer's approval, the Treasurer
must --
(a) give written notice of the refusal to TrustCo;
and
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s. 71
(b) cause a copy of the notice to be laid before each
House of Parliament or dealt with under
section 78 within 14 days after it is given to
TrustCo.
5 Division 3 -- Creation of sub-funds
75H. Terms used in this Division
(1) In this Division --
"assignee" means --
(a) in relation to an asset specified in a
10 separation order under section 75L(1)(a),
TrustCo; or
(b) in relation to an asset or liability specified in
a separation order under section 75L(1)(b)
or (c), the person specified in the order as the
15 person to whom the asset or liability is to be
assigned; or
(c) in relation to a liability assigned by operation
of section 75N(b), TrustCo; or
(d) in relation to proceedings specified in a
20 separation order under section 75L(1)(d), the
person specified in the order as the person
who is to be substituted for the Board as a
party to the proceedings; or
(e) in relation to an agreement or document
25 specified in a separation order under
section 75L(1)(e), the person specified in the
order as the person a reference to whom is to
be treated as being substituted for a reference
in the agreement or document to the Board;
30 "separation order" means an order made under
section 75L;
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"transferred property" means --
(a) an asset allocated by operation of
section 75M(a) to the West State Fund; or
(b) an asset or liability assigned by operation of
5 section 75N.
(2) In this Division each of the following terms has the
meaning given in section 55 --
(a) "asset";
(b) "liability";
10 (c) "right".
75I. Licences, approvals etc. to be obtained
(1) The Board, MutualCo and TrustCo are to take the
necessary steps to ensure that, as soon as is
practicable --
15 (a) all necessary licences, approvals, registrations,
exemptions and other kinds of authorisations
have been issued, granted or obtained; and
(b) all other requirements with which it is
necessary to comply, have been complied with.
20 (2) In subsection (1) --
"necessary" means necessary, under a written law or a
law of the Commonwealth, to be done before the
separation time, in order to enable the West State
scheme to function as a regulated superannuation
25 fund from the separation time.
75J. Service agreement
(1) The Board must, as soon as is practicable, prepare and
submit to the Treasurer a draft of an agreement to be
entered into by MutualCo and TrustCo for the
30 provision by MutualCo to TrustCo of services relating
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s. 71
to the performance by TrustCo of its functions as
responsible entity.
(2) The Treasurer may --
(a) approve a draft agreement submitted under
5 subsection (1); or
(b) direct that it be amended and approve it in an
amended form.
(3) As soon as is practicable after the Treasurer has
approved a draft agreement MutualCo and TrustCo are
10 to enter into an agreement on the terms of the draft
agreement approved by the Treasurer.
75K. Treasurer to fix separation time
(1) The Treasurer may, by order published in the Gazette,
fix the separation time.
15 (2) The time fixed under subsection (1) must not be before
the transfer time.
(3) The Treasurer must not make an order under
subsection (1) unless the Treasurer has received from
an actuary a certificate --
20 (a) given not more than 30 working days before the
time to be fixed as the separation time; and
(b) certifying that the actuary considers that if the
separation time were the time when the
certificate is given, the assets allocated by
25 operation of section 75M(a) to the West State
Fund would be sufficient and appropriate to
enable the responsible entity to meet its
obligations under the governing rules.
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(4) In giving a certificate for the purposes of subsection (3)
an actuary is to have regard to --
(a) the type and value of the assets to be allocated
by operation of section 75M(a) to the West
5 State Fund; and
(b) the type and value of the assets and liabilities to
be assigned by operation of section 75N to
TrustCo as the responsible entity; and
(c) the investment options selected by West State
10 members; and
(d) the level of reserves the actuary reasonably
considers a prudent trustee would, in the
ordinary course of the prudent management of
the West State scheme, maintain; and
15 (e) any indemnity or guarantee given under
section 75Q.
(5) The Treasurer must not make an order under
subsection (1) unless the constitution of MutualCo
contains provisions to the effect that while there is a
20 special member, as defined in section 42, the special
member will have a power to veto the exercise by the
company or the directors of its or their power --
(a) to alter or terminate the agreement entered into
in accordance with section 75J(3); or
25 (b) to appoint, under the governing rules, a new
responsible entity.
(6) The Treasurer is to cause a copy of --
(a) the separation order; and
(b) the actuarial certificate referred to in
30 subsection (3); and
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(c) any other actuarial advice received by the
Treasurer in relation to --
(i) the assets to be allocated by operation of
section 75M(a); or
5 (ii) the assets and liabilities to be assigned
by operation of section 75N; and
(d) the order made under subsection (1),
to be laid before each House of Parliament or dealt
with under section 78 within 3 working days after the
10 order made under subsection (1) is published in the
Gazette.
75L. Treasurer to make separation order
(1) For the purpose of this Part the Treasurer may, by one
or more orders published in the Gazette, specify --
15 (a) the assets in the statutory fund that are to be
allocated by operation of section 75M(a) to the
West State Fund; and
(b) any assets --
(i) in the statutory fund; or
20 (ii) of the Board that are not in the statutory
fund,
that are to be assigned by operation of
section 75N(a) to the person specified in the
order; and
25 (c) any liability of the Board --
(i) not arising under the West State
scheme; or
(ii) arising under the West State scheme but
that will not be assigned by operation of
30 section 75N(b),
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s. 71
that is to be assigned by operation of
section 75N(c) to the person specified in the
order; and
(d) any proceedings in which the person specified
5 in the order is to be substituted by operation of
section 75N(d) for the Board as a party to the
proceedings; and
(e) any agreement or document relating to
transferred property that, unless otherwise
10 expressly specified in the order, is to be taken
to be amended by operation of section 75N(e)
by substituting for a reference in it to the Board
a reference to the person specified in the order.
(2) The person specified in a separation order may be
15 MutualCo or TrustCo or a subsidiary of either of them.
(3) A separation order may specify a thing by describing it
as a member of a class of things.
(4) A separation order may specify a thing by reference to
a schedule that need not be published in the Gazette but
20 must be --
(a) signed by the Treasurer; and
(b) available for public inspection.
(5) Anything specified in a schedule referred to in a
separation order is taken to be specified in the order.
25 (6) The Treasurer may, by order published in the Gazette,
amend a separation order, or a schedule referred to in a
separation order, to correct --
(a) a clerical mistake; or
(b) an accidental slip or omission; or
30 (c) the misdescription of a person or thing.
(7) A separation order, or an order under subsection (6),
can only be made before the separation time.
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s. 71
75M. Allocation of assets to sub-funds
At the separation time --
(a) the assets specified in a separation order under
section 75L(1)(a) are allocated to and constitute
5 the West State Fund referred to in
section 14(3)(b); and
(b) the other assets in the statutory fund are
allocated to and constitute the Defined Benefit
Fund referred to in section 14(3)(a).
10 75N. Transfer of other assets, liabilities etc.
At the separation time, by operation of this section --
(a) an asset specified in a separation order under
section 75L(1)(b) is assigned to the assignee;
and
15 (b) every liability of the Board or of the State to
pay a benefit arising under the West State
scheme to or in relation to a West State member
is assigned to, and becomes a liability of,
TrustCo as the responsible entity; and
20 (c) a liability specified in a separation order under
section 75L(1)(c) is assigned to, and becomes a
liability of, the assignee; and
(d) in proceedings specified in a separation order
under section 75L(1)(d) the assignee is
25 substituted for the Board as a party to the
proceedings; and
(e) an agreement or document specified in a
separation order under section 75L(1)(e) is,
unless otherwise expressly specified in the
30 order, taken to be amended by substituting for
any reference in it to the Board a reference to
the assignee.
page 87
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Part 5 Amendments relating to West State scheme
Division 3 West State separated into sub-fund
s. 71
75O. West State members to become members of
MutualCo
(1) The Board and MutualCo are to take the necessary
steps to ensure that --
5 (a) the constitution of MutualCo contains
provisions to the effect that every person who is
a West State member at the separation time will
be eligible to become a member of the
company; and
10 (b) at the separation time every West State member
becomes a member of MutualCo.
(2) For the purposes of subsection (1)(b), the Board is
appointed as attorney for each person who is a West
State member for the purpose of executing any
15 documents the Board considers necessary or
desirable --
(a) to enable that person, if he or she is a West
State member at the separation time, to become
a member of MutualCo; and
20 (b) to nominate for the person how MutualCo may
send or make available to the person notices,
reports and other communications that
MutualCo is required under the Corporations
Act to send to members of the company.
25 75P. Effect on rights, remedies etc.
After the separation time --
(a) any proceedings that might have been
commenced by or against the Board or the State
in relation to transferred property --
30 (i) may be commenced by or against the
assignee; and
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s. 71
(ii) cannot be commenced by or against the
Board or the State;
and
(b) any remedy that would have been available to
5 or against the Board or the State in relation to
transferred property --
(i) is available to or against the assignee;
and
(ii) is not available to or against the Board
10 or the State;
and
(c) anything relating to transferred property that
was done or omitted to be done by, to, or in
respect of, the Board or the State before the
15 separation time and is of any ongoing effect is
to be taken to have been done or omitted to be
done by, to, or in respect of, the assignee.
75Q. Treasurer may give indemnity or guarantee
(1) The Treasurer may, in the name and on behalf of the
20 State, give to the responsible entity --
(a) an indemnity against liability for; or
(b) a guarantee of payment in respect of,
any financial obligations of the responsible entity
relating to the payment of benefits to or in respect of
25 West State members.
(2) An indemnity or guarantee is to be in the form, and on
the terms and conditions, determined by the Treasurer.
(3) The due payment of money payable by the Treasurer
under an indemnity or guarantee is to be charged to the
30 Consolidated Account, which this subsection
appropriates accordingly.
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Part 5 Amendments relating to West State scheme
Division 3 West State separated into sub-fund
s. 71
(4) The Treasurer is to cause any amounts received or
recovered, from the responsible entity or otherwise, in
respect of any payment made by the Treasurer under an
indemnity or guarantee to be credited to the
5 Consolidated Account.
75R. Notification and registration of assignment
(1) In this section --
"registrar" means --
(a) a WA registrar; or
10 (b) a person authorised or required by a law of a
place outside the State to record and give
effect to the registration of documents
relating to transactions affecting transferred
property;
15 "WA registrar" means --
(a) the Registrar of Titles; or
(b) the Registrar of Deeds and Transfers; or
(c) the Minister administering the Mining
Act 1978; or
20 (d) any other person authorised by a written law
to record and give effect to the registration of
documents relating to transactions affecting
transferred property.
(2) A WA registrar is to take notice of this Division and
25 record and register in the appropriate manner the
documents necessary to show the effect of this
Division.
(3) The assignee of any transferred property is to cause to
be delivered to each registrar, in a form acceptable to
30 the registrar, all the information the registrar needs in
order to record and register the documents necessary to
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Amendments relating to West State scheme Part 5
West State separated into sub-fund Division 3
s. 71
show the effect of this Division in relation to that
property.
75S. Completion of necessary transactions
If there is any impediment to any provision of this
5 Division having effect (whether because a matter is
governed otherwise than by the law of the State, or for
any other reason), the Treasurer, the Board, MutualCo,
TrustCo and each other assignee are to take all
practicable steps to ensure that the effect sought to be
10 achieved by that provision is achieved as close as
possible to the separation time.
75T. Arrangements for custody and use of records
The Board, MutualCo, TrustCo and each other assignee
are to make arrangements for the delivery or sharing
15 of, and access to, documents and other records
(however compiled, recorded or stored) that relate to
any of the following --
(a) transferred property or anything otherwise
affected by this Division;
20 (b) the West State scheme;
(c) a West State member.
75U. Stamp duty and other taxes
(1) In this section --
"foreign tax" means a tax, duty, fee, levy or charge
25 under a law of a place outside the State;
"relevant act" means anything --
(a) that occurs by operation of this Division; or
(b) done --
(i) under this Division; or
30 (ii) to give effect to this Division; or
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Part 5 Amendments relating to West State scheme
Division 3 West State separated into sub-fund
s. 71
(iii) for a purpose connected with, or
arising out of, giving effect to this
Division,
including a transaction entered into or an
5 instrument or document of any kind made,
executed, lodged or given.
(2) Stamp duty under the Stamp Act 1921 is not chargeable
in relation to a relevant act.
(3) Any foreign tax payable in relation to a relevant act is
10 to be paid by the Board and charged to the statutory
fund under section 15(2)(c).
(4) The Treasurer or a person authorised by the Treasurer
may, at the request of the Board or a person who
would, but for subsection (2) or (3), be liable to pay
15 stamp duty or foreign tax in relation to a relevant act,
certify in writing that a specified thing was a relevant
act.
(5) For all purposes and in all proceedings, a certificate
under subsection (4) is conclusive evidence of the
20 matters it certifies, except so far as the contrary is
shown.
Division 4 -- General
75V. Treasurer may give directions
(1) The Treasurer may give directions in writing to the
25 Board requiring it to take any step that the Treasurer
considers necessary or convenient for the purpose of
giving effect to this Part.
(2) The Board must comply with a direction given to it
under subsection (1).
30 (3) This section applies despite the Statutory Corporations
(Liability of Directors) Act 1996 section 6(a) and a
page 92
State Superannuation Amendment Bill 2007
Amendments relating to West State scheme Part 5
West State separated into sub-fund Division 3
s. 71
direction given under this section is not unlawful for
the purposes of Part 3 Division 4 of that Act.
(4) Section 77 applies to a direction given under this
section.
5 75W. Power to remedy insufficiency
(1) If the Treasurer is satisfied that the assets allocated to
the West State Fund by operation of this Part were not,
at the separation time, sufficient or appropriate to
enable TrustCo to meet its obligations as the
10 responsible entity, the Treasurer may take any action
the Treasurer considers appropriate to remedy the
insufficiency or inappropriateness.
(2) Without limiting the action that may be taken under
subsection (1), the Treasurer may direct the Board,
15 under section 75V, to --
(a) allocate assets in the statutory fund to the West
State Fund referred to in section 14(3)(b); or
(b) pay an amount from the statutory fund to a
person.
20 (3) This section expires when section 54 expires.
75X. General powers of Treasurer and Board
(1) The Treasurer and the Board may do, in the State or
elsewhere, anything necessary or convenient to be done
for the purpose of giving effect to this Part.
25 (2) If there is a conflict or inconsistency between --
(a) a function of the Board under this Part; and
(b) a function of the Board under any other
provision of this Act other than a provision in
Part 4,
30 the function under this Part prevails.
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State Superannuation Amendment Bill 2007
Part 5 Amendments relating to West State scheme
Division 3 West State separated into sub-fund
s. 72
75Y. No fees payable by West State members
No fee or charge is payable by a West State member in
relation to anything --
(a) that occurs by operation of this Part; or
5 (b) done --
(i) under this Part; or
(ii) to give effect to this Part; or
(iii) for a purpose connected with, or arising
out of, giving effect to this Part.
10 ".
Subdivision 2 -- Amendments at separation time
72. Section 4E amended
Section 4E(1) is amended as follows:
(a) by deleting the definition of "Fund" and inserting
15 instead --
"
"Fund" means --
(a) unless paragraph (b) applies -- the sub-fund
of the State Superannuation Fund referred to
20 in section 14(3)(a) and called the Defined
Benefit Fund; or
(b) if the West State scheme has been
discontinued -- the State Superannuation
Fund under section 14;
25 ";
(b) in the definition of "scheme" by deleting "section 29;"
and inserting instead --
" section 29(1)(b), (c) or (d); ".
73. Section 22 repealed
30 Section 22 is repealed.
page 94
State Superannuation Amendment Bill 2007
Amendments relating to West State scheme Part 5
West State separated into sub-fund Division 3
s. 74
74. Section 33 amended
Section 33(2)(g) and "and" after it are deleted.
75. Section 38 amended
(1) Section 38(3)(b)(i) is amended by deleting "the West State
5 scheme or".
(2) Section 38(7)(a) is amended by deleting "the West State
scheme or".
76. Section 51 amended
Section 51(1) and (2) are amended by inserting after
10 "section 43(3)(c)" --
" or 75K(5) ".
page 95
State Superannuation Amendment Bill 2007
Part 6 Consequential amendments
Division 1 Amendments to commence with Part 2
s. 77
Part 6 -- Consequential amendments
Division 1 -- Amendments to commence with Part 2
77. Magistrates Court Act 2004 amended
(1) The amendments in this section are to the Magistrates Court
5 Act 2004*.
[* Act No. 47 of 2004.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
Act No. 77 of 2006.]
10 (2) Schedule 1 clauses 5(8) and 13(8) are amended by deleting
"1999" and inserting instead --
" 2000 ".
78. State Superannuation (Transitional and Consequential
Provisions) Act 2000 amended
15 (1) The amendments in this section are to the State Superannuation
(Transitional and Consequential Provisions) Act 2000*.
[* Act No. 43 of 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1.]
20 (2) Section 26(2)(a) and (3) are amended by deleting "section 38
of" .
page 96
State Superannuation Amendment Bill 2007
Consequential amendments Part 6
Amendments to commence with Part 3 Division 2
s. 79
Division 2 -- Amendments to commence with Part 3
79. Constitution Acts Amendment Act 1899 amended
(1) The amendments in this section are to the Constitution Acts
Amendment Act 1899*.
5 [* Reprint 14 as at 21 April 2006.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and Acts
Nos. 28, 29, 30, 32 and 33 of 2005 and 64, 73 and 77 of
2006.]
10 (2) Schedule V Part 3 is amended by deleting the item for the
Government Employees Superannuation Board and inserting in
the appropriate alphabetical position --
"
The State Superannuation Board under the State Superannuation
15 Act 2000.
".
80. Director of Public Prosecutions Act 1991 amended
(1) The amendments in this section are to the Director of Public
Prosecutions Act 1991*.
20 [* Reprint 2 as a 25 November 2005.]
(2) Schedule 1 clause 3(5) to (8) are repealed.
(3) After Schedule 1 clause 3 the following clause is inserted --
"
3A. Superannuation if subsequently appointed as judge
25 (1) A person who was the Director and is, on termination of his
or her appointment as Director, appointed to a pensionable
office as defined in the Judges' Salaries and Pensions
Act 1950 section 2(4) may elect for subsection (2) to apply
to the person.
page 97
State Superannuation Amendment Bill 2007
Part 6 Consequential amendments
Division 2 Amendments to commence with Part 3
s. 81
(2) If this subsection applies to a person, for the purposes of the
Judges' Salaries and Pensions Act 1950 the person's service
as Director is to be taken to be service in a pensionable
office.
5 (3) If a person who makes an election under subsection (1) was,
while Director, a contributor to, or a member of, a
superannuation scheme continued by the State
Superannuation Act 2000 section 29(1)(b) or (c), the
person's entitlements to benefits under that scheme in
10 respect of the period of his or her service as Director cease
when the person makes that election.
(4) If a person who makes an election under subsection (1) is
not a person to whom subsection (3) applies, any pension
that becomes payable to or in respect of the person under the
15 Judges' Salaries and Pensions Act 1950 is to be reduced by
an amount determined by the Minister, on the advice of an
actuary, to be actuarially equivalent to the value of the
employer sponsored component of any benefit accrued in a
superannuation fund in respect of the period of his or her
20 service as Director.
(5) An election under subsection (1) is to be made in writing to
the Minister within 30 days after ceasing to be Director and
is irrevocable.
(6) This section has effect despite anything in the
25 Superannuation and Family Benefits Act 1938, State
Superannuation Act 2000 or the Judges' Salaries and
Pensions Act 1950.
".
81. Electricity Corporations Act 2005 amended
30 (1) The amendments in this section are to the Electricity
Corporations Act 2005*.
[* Act No. 18 of 2005.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
35 Act No. 77 of 2006.]
page 98
State Superannuation Amendment Bill 2007
Consequential amendments Part 6
Amendments to commence with Part 3 Division 2
s. 82
(2) Section 26(4) is amended by deleting "section 30." and inserting
instead --
" section 76. ".
82. Financial Management Act 2006 amended
5 (1) The amendments in this section are to the Financial
Management Act 2006*.
[* Act No. 76 of 2006.
For subsequent amendments see Act No. 77 of 2006.]
(2) Schedule 1 is amended by deleting "Government Employees
10 Superannuation Board" and inserting in the appropriate
alphabetical position --
" State Superannuation Board ".
83. Land Tax Assessment Act 2002 amended
(1) The amendments in this section are to the Land Tax Assessment
15 Act 2002*.
[* Reprint 1 as at 11 August 2006.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1 and
Act No. 73 of 2006.]
20 (2) The Glossary clause 1 is amended in the definition of "taxable
authority" by deleting "Government Employees Superannuation
Board" and inserting instead --
" State Superannuation Board ".
page 99
State Superannuation Amendment Bill 2007
Part 6 Consequential amendments
Division 2 Amendments to commence with Part 3
s. 84
84. Port Authorities Act 1999 amended
(1) The amendments in this section are to the Port Authorities
Act 1999*.
[* Reprint 1 as at 1 October 2004.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
Act No. 77 of 2006.]
(2) Section 19(1) is amended by deleting "section 30" and inserting
instead --
10 " section 76 ".
85. Public Sector Management Act 1994 amended
(1) The amendments in this section are to the Public Sector
Management Act 1994*.
[* Reprint 7 as at 25 August 2006.
15 For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
Act No. 77 of 2006.]
(2) Schedule 2 item 16 is deleted.
86. Racing and Wagering Western Australia Act 2003 amended
20 (1) The amendments in this section are to the Racing and Wagering
Western Australia Act 2003*.
[* Reprint 1 as at 22 September 2006.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
25 Acts Nos. 77 of 2006 and 2 and 8 of 2007.]
(2) Section 23(1) is amended by deleting "section 30" and inserting
instead --
" section 76 ".
page 100
State Superannuation Amendment Bill 2007
Consequential amendments Part 6
Amendments to commence with Part 3 Division 2
s. 87
87. Statutory Corporations (Liability of Directors) Act 1996
amended
(1) The amendments in this section are to the Statutory
Corporations (Liability of Directors) Act 1996*.
5 [* Reprint 4 as at 9 February 2007.]
(2) Schedule 1 is amended by deleting the item for the Government
Employees Superannuation Board and inserting in the
appropriate alphabetical position --
"
State Superannuation a director State Superannuation
Board Act 2000
10 ".
88. Western Australian Land Authority Act 1992 amended
(1) The amendments in this section are to the Western Australian
Land Authority Act 1992*.
[* Reprint 2 as at 4 February 2005.
15 For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
Act No. 77 of 2006.]
(2) Section 13A(1) is amended by deleting "section 30" and
inserting instead --
20 " section 76 ".
89. Electricity Industry (Independent Market Operator)
Regulations 2004 amended
(1) The amendments in this section are to the Electricity Industry
(Independent Market Operator) Regulations 2004*.
25 [* Published in Gazette 30 September 2004, p. 4207-69.]
page 101
State Superannuation Amendment Bill 2007
Part 6 Consequential amendments
Division 2 Amendments to commence with Part 3
s. 89
(2) Regulation 17(4) is amended by deleting "section 30" and
inserting instead --
" section 76 ".
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