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House of Assembly—No 33
As laid on the table and read a first time, 15 October 2003
South Australia
Statutes
Amendment (Division of Superannuation Interests under Family Law Act)
Bill 2003
A Bill For
An
Act to amend the Judges' Pensions Act 1971, the Parliamentary
Superannuation Act 1974, the Police Superannuation Act 1990,
the Southern State Superannuation Act 1994 and the Superannuation
Act 1988.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Judges' Pensions Act 1971
4 Insertion of section 9A
5 Insertion of Part 2A
Part 3—Amendment of Parliamentary Superannuation Act 1974
6 Insertion of Part 4A
7 Insertion of section 26AAA
8 Insertion of section 39A
9 Amendment of section 40—Regulations
Part 4—Amendment of Police Superannuation Act 1990
10 Amendment of section 26—Death of
contributor
11 Amendment of section 32—Benefits
payable on contributor's death
12 Insertion of Part 5B
13 Amendment of section 49—Confidentiality
14 Amendment of section 52—Regulations
Part 5—Amendment of Southern State Superannuation Act 1994
15 Amendment of section 3—Interpretation
16 Amendment of section 7—Contribution
and rollover accounts
17 Amendment of section 12—Payment of
benefits
18 Amendment of section 14—Membership
19 Amendment of section 21—Basic
Invalidity/Death Insurance
20 Amendment of section 22—Application
for additional invalidity/death insurance
21 Amendment of section 25—Contributions
22 Amendment of section 26—Payments by
employers
23 Amendment of section 27—Employer
contribution accounts
24 Amendment of section 35—Death of
member
25 Insertion of Part 5A
26 Amendment of section 47A—Confidentiality
27 Amendment of section 49—Regulations
Part 6—Amendment of Superannuation Act 1988
28 Amendment of section 20B—Payment of
benefits
29 Amendment of section 32—Death of
contributor
30 Amendment of section 38—Death of
contributor
31 Insertion of Part 5A
32 Amendment of section 55—Confidentiality
33 Amendment of section 59—Regulations
Schedule 1—Transitional provisions
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Statutes Amendment (Division of
Superannuation Interests Under Family Law Act) Act 2003.
(1) This
Act will come into operation on a day to be fixed by proclamation.
(2) The
Governor may, by proclamation, bring a section of this Act into operation on a
day that is earlier than the day on which the proclamation is made, but not so
as to bring the section into operation before 28 December 2002.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Judges' Pensions Act 1971
After section 9 insert:
9A—Spouse
entitlement subject to any Family Law determination
A pension is not payable to a spouse under section 6A(3), 8 or 9
in a case where section 17K applies.
After Part 2 insert:
Part 2A—Family
Law Act provisions
17B—Purpose
of this Part
The purpose of this Part is to facilitate the division under the Family
Law Act 1975 of the Commonwealth of interests between spouses who have
separated.
17C—Interpretation
In this Part, unless the contrary
intention appears—
Commonwealth regulations means the Family Law (Superannuation)
Regulations 2001 (No. 303 as amended) of the Commonwealth;
eligible person, in relation to an interest of a Judge under this Act, has the
same meaning as in section 90MZB of the Family Law Act 1975 of the
Commonwealth;
flag lifting agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth;
growth phase has the same meaning as in the Commonwealth regulations;
Judge includes a former Judge;
member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
non-member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
operative time has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
payment phase has the same meaning as in the Commonwealth regulations;
payment split has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
relevant date has the same meaning as in the Commonwealth regulations;
scheme means the pension scheme for Judges established under this Act;
SIS Act means the Superannuation Industry (Supervision) Act 1993
of the Commonwealth;
Southern State Superannuation Fund means the fund of that name established
under the Southern State Superannuation Act 1994;
splitting instrument means—
(a) a
superannuation agreement; or
(b) a
flag lifting agreement that provides for a payment split; or
(c) a
splitting order;
splitting order has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
superannuation agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth.
17D—Accrued
benefit multiple
(1) For the purposes of the Commonwealth
regulations, the accrued benefit multiple for a pension payable
in respect of an interest of a Judge under this Act is determined as follows:
(a) if
the Judge has not attained the age of 60 years at the prescribed date but will
have served for at least 15 years on attaining that age, the accrued benefit
multiple is determined in accordance with the following formula:
where—
T1
is the number of days in the period beginning on the day on which the Judge
joined the scheme and ending on the prescribed date
T2
is the number of days in the period beginning on the day on which the Judge
joined the scheme and ending on the day on which the Judge will attain the age
of 60 years;
(b) if
the Judge has not attained the age of 60 years at the prescribed date and will
not have served as a Judge for at least 15 years on attaining that age, the
accrued benefit multiple is determined in accordance with the following
formula:
where—
P
is the pension benefit payable to the Judge on retirement at the age of 60,
expressed as a portion of annual salary
T1
is the number of days in the period beginning on the day on which the Judge
joined the scheme and ending on the prescribed date
T2
is the number of days in the period beginning on the day on which the Judge
joined the scheme and ending on the day on which the Judge will attain the age
of 60 years;
(c) if,
at the prescribed date, the Judge has attained the age of 60 years but has not
yet attained the age of retirement, the accrued benefit multiple is determined
in accordance with the following formula:
where—
P
is the amount of the pension benefit payable to the Judge at age of retirement,
expressed as a portion of annual salary
T1
is the number of days in the period beginning on the day on which the Judge
joined the scheme and ending on the prescribed date
T2
is the number of days in the period beginning on the day on which the Judge
joined the scheme and ending on the day on which the Judge will attain the age
of retirement.
(2) In
addition to any other information that may be provided by the Treasurer in
connection with this Part, the Treasurer may, on application, provide to an
eligible person a statement of the value of an interest of a Judge, as at a
particular date specified in the application.
(3) For the purposes of this section, it will
be assumed—
(a) that
a person holding office as a Judge at the prescribed date who has not attained
the age of 60 years at that date will continue to serve as a Judge until he or
she attains the age of 60 years (and will then retire); and
(b) that
a person holding office as a Judge at the prescribed date who has attained the
age of 60 years at that date will continue to serve as a Judge until he or she
attains the age of retirement.
(4) In this section—
prescribed date is the date that is relevant to the determination of an accrued
benefit multiple in the particular circumstances.
17E—Value of
interest
(1) For
the purposes of this Part (but subject to subsection (2)), the value of
any interest will be determined in accordance with Part 5 of the Commonwealth
regulations (insofar as those regulations provide a method for determining that
value), subject to any modification prescribed by regulation under this Act.
(2) An
approval of the Commonwealth Minister under regulation 38 or 43A of the
Commonwealth regulations that relates to an interest under this Act will have
effect for the purposes of this Part.
17F—Non-member
spouse's entitlement
(1) Subject
to subsection (2), the Treasurer must, on receipt of a splitting
instrument, create an interest for the non-member spouse named in the
instrument.
(2) If the member spouse has less than 10 years
judicial service at the time of service of the splitting instrument on the
Treasurer, the Treasurer will create the interest for the non-member spouse
when—
(a) the
member spouse attains 10 years of judicial service; or
(b) the
member spouse ceases to be a Judge,
whichever first occurs.
(3) The
form of the non-member spouse's interest will be determined on the basis of
whether the member spouse's benefit is in the growth phase or the payment phase
and by reference to the provisions of the instrument.
17G—Entitlement
where pension is in growth phase
(1) If
the Treasurer is served with a splitting instrument in respect of a pension
that is in the growth phase, the non-member spouse is not entitled to receive
his or her entitlement in the form of a pension commencing at the same time as
the member spouse's pension under this Act but is, instead, (subject to
section 17F(2)) entitled to have a lump sum determined under this section
paid on his or her behalf in accordance with this Part.
(2) The lump sum to which a non-member spouse
is entitled, as at the operative time, will be determined—
(a) where
the splitting instrument specifies a percentage of the member spouse's benefit
for the purposes of the split—by applying that percentage split to the member
spouse's interest under this Act based on the relevant accrued benefit multiple
and by applying any relevant method or factor that applies under
section 17E;
(b) subject
to subsection (3), where the splitting instrument specifies a lump sum
amount for the purposes of the split—by adopting that lump sum.
(3) The
value of a lump sum payable to a non-member spouse under this section must not
exceed the value of the member spouse's interest.
17H—Entitlement
where pension is in payment phase
(1) If
the Treasurer is served with a splitting instrument in respect of a pension
that is in the payment phase, the Treasurer must split the pension between the
member spouse and non-member spouse in accordance with the instrument, with
effect from the operative time.
(2) The non-member spouse may—
(a) —
(i) in
accordance with the terms of the splitting instrument; or
(ii) by
notice in writing given to the Treasurer within the prescribed period,
elect to have the whole of his or her entitlement determined under
subsection (1) converted to (and taken as) a separate pension entitlement
(to be referred to as an associate pension for the purposes of
this Act) for the lifetime of the non-member spouse; or
(b) by
notice in writing given to the Treasurer within the prescribed period, elect to
have the whole of his or her entitlement determined under subsection (1)
commuted to a lump sum.
(3) The following provisions will apply with
respect to an associate pension:
(a) the
amount of the pension will be determined by applying the methods and factors
prescribed by the regulations;
(b) for
the avoidance of doubt, the pension will be adjusted in accordance with section
14A;
(c) no
derivative, reversionary or other rights will arise or continue on account of
the entitlement to the pension after the death of the non-member spouse.
(4) A
lump sum under subsection (2)(b) will be determined by applying the
methods and factors prescribed by the regulations.
(5) If
the non-member spouse dies while entitled to, or in receipt of, a pension under
this section (other than an associate pension), the non-member spouse's legal
representative may, by notice in writing given to the Treasurer within the
prescribed period, elect to have the pension commuted to a lump sum.
(6) A
lump sum under subsection (5) will be determined by applying the methods
and factors prescribed by the regulations to the non-member spouse's
entitlement.
(7) In this section—
legal representative, in relation to a deceased non-member
spouse, means a person—
(a) holding
office as executor of the will of the deceased non-member spouse where probate
of the will has been granted or resealed in South Australia or any other State
or a Territory; or
(b) holding
office in South Australia or any other State or a Territory as administrator of
the estate of the deceased non-member spouse.
17I—Payment
of non-member spouse's entitlement
(1) If the interest of a non-member spouse
created under this Part after service of a splitting instrument or after the
commutation of a pension payable to the non-member spouse is a lump sum, the
interest will, according to the election of the non-member spouse—
(a) be
paid out to the extent (if any) that payment can be made in accordance with the
SIS Act; or
(b) be
rolled over to the credit of the non-member spouse in an account (which may
need to be established) in the name of the non-member spouse in the Southern
State Superannuation Fund; or
(c) be
rolled over or transferred to some other superannuation fund or scheme approved
by the Treasurer.
(2) The
Treasurer must take the action required under subsection (1) within 28
days after receiving the relevant election.
(3) However,
if an election is not made by the non-member spouse before the end of 28 days
after the Treasurer gives notice to the non-member spouse in the manner
contemplated by the regulations, the Treasurer must, subject to the
regulations, roll over the interest to the credit of the non-member spouse
under subsection (1)(b).
(4) If
the interest of a non-member spouse created under this Part after service of a
splitting instrument is in the form of a pension (and the non-member spouse has
not directed that the pension be commuted to a lump sum), the Treasurer must
split the relevant pension within the prescribed period after receipt of the
splitting instrument (with effect from the relevant date), and begin to make
the payments in accordance with the regulations.
17J—Reduction
in Judge's entitlement
Despite the other provisions of this Act, if a payment split is
payable with respect to the interest of a Judge, there is a corresponding
reduction in the entitlement of the Judge under this Act.
17K—Pension
not payable to spouse on death of Judge if split has occurred
If a Judge dies and is survived by a spouse who has received, is
receiving or is entitled to receive a benefit under a splitting instrument, the
spouse is not entitled to a benefit under this Act in relation to the deceased
Judge (except in accordance with the instrument).
17L—Treasurer
to comply with Commonwealth requirements
The Treasurer must comply with the requirements imposed under Part
VIIIB of the Family Law Act 1975 of the Commonwealth as if the
Treasurer were the trustee of the scheme.
17M—Payment
of benefit
(1) An
amount payable under this Part is payable by the Treasurer from the
Consolidated Account (which is appropriated to the necessary extent) or from a
special deposit account established by the Treasurer for that purpose.
(2) In this section—
special deposit account means a special deposit account
established under section 8 of the Public Finance and Audit Act 1987.
17N—Fees
(1) The
Treasurer may fix fees in respect of matters in relation to which fees may be
charged under regulation 59 of the Commonwealth regulations.
(2) Any fee fixed under subsection (1)
that is payable by a member spouse or non-member spouse and has not been paid
within 1 month of the amount becoming payable may be deducted by the Treasurer—
(a) if
the outstanding fee is payable by the non-member spouse—from an interest that
is to be rolled over or transferred to a fund for the benefit of the non-member
spouse; or
(b) in
any case—
(i) from
a pension payable to the person in default under this Act; or
(ii) from
any other benefit payable to the person in default under this Act.
17O—Regulations
(1) The
Governor may make such regulations as are contemplated by this Part or are
necessary or expedient for the purposes of this Part.
(2) Without
limiting subsection (1), the regulations may modify the operation of any
provision of this Act in prescribed circumstances in order to ensure that this
Act operates in a manner that is consistent with, and complementary to, the
requirements of the Family Law Act 1975 of the Commonwealth.
Part 3—Amendment of Parliamentary Superannuation Act 1974
After Part 4 insert:
Part 4A—Family
Law Act provisions
23A—Purpose
of this Part
The purpose of this Part is to facilitate the division under the Family
Law Act 1975 of the Commonwealth of superannuation interests between
spouses who have separated.
23B—Interpretation
In this Part, unless the contrary
intention appears—
Commonwealth regulations means the Family Law (Superannuation)
Regulations 2001 (No. 303 as amended) of the Commonwealth;
eligible person, in relation to the superannuation interest of a member, has the
same meaning as in section 90MZB of the Family Law Act 1975 of the
Commonwealth;
flag lifting agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth;
growth phase has the same meaning as in the Commonwealth regulations;
member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
non-member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
operative time has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
payment phase has the same meaning as in the Commonwealth regulations;
payment split has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
relevant date has the same meaning as in the Commonwealth regulations;
scheme means the superannuation scheme for members under this Act;
SIS Act means the Superannuation Industry (Supervision) Act 1993
of the Commonwealth;
Southern State Superannuation Fund means the fund of that name established
under the Southern State Superannuation Act 1994;
splitting instrument means—
(a) a
superannuation agreement; or
(b) a
flag lifting agreement that provides for a payment split; or
(c) a
splitting order;
splitting order has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
superannuation agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth.
23C—Accrued
benefit multiple
(1) For the purposes of the Commonwealth
regulations, the accrued benefit multiple for a pension payable
in respect of a superannuation interest of a member is determined as follows:
(a) if
the member has not attained 6 years of service at the prescribed date:
where—
T1
is the number of days in the period beginning on the day on which the member
joined the scheme and ending on the prescribed date
T2
is the number of days in the period beginning on the day on which the member
joined the scheme and ending on the sixth anniversary of that day;
(b) if
the member has attained 6 years of service at the prescribed date:
where—
T1
is the number of days in the period beginning on the day immediately following
the sixth anniversary of the day on which the member joined the scheme and
ending on the prescribed date or on the 14 year 1 month anniversary of the day
on which the member attained 6 years of service, whichever is the earlier
T2
is the number of days in the period beginning on the day immediately following
the sixth anniversary of the day on which the member joined the scheme and
ending on the 14 year 1 month anniversary of the day on which the member
attained 6 years of service.
(2) In
addition to any other information that may be provided by the Board in
connection with this Part, the Board may, on application, provide to an
eligible person a statement of the value of a superannuation interest of a
member spouse, as at a particular date specified in the application.
(3) In this section—
prescribed date is the date that is relevant to the determination of an accrued
benefit multiple in the particular circumstances.
23D—Value of
superannuation interest
(1) For
the purposes of this Part (but subject to subsection (2)), the value of
any superannuation interest will be determined in accordance with Part 5 of the
Commonwealth regulations (insofar as those regulations provide a method for
determining that value), subject to any modification prescribed by regulation
under this Act.
(2) An
approval of the Commonwealth Minister under regulation 38 or 43A of the
Commonwealth regulations that relates to a superannuation interest under this
Act will have effect for the purposes of this Part.
23E—Non-member
spouse's entitlement
(1) Subject
to subsection (2), the Board must, on service of a splitting instrument,
create an interest for the non-member spouse named in the instrument.
(2) If the member spouse has less than 6 years
service at the time of service of the splitting instrument on the Board, the
Board will create the interest for the non-member spouse when—
(a) the
member spouse attains 6 years of service; or
(b) the
member spouse ceases to be a member of the Parliament,
whichever first occurs.
(3) The
form of the non-member spouse's interest will be determined on the basis of
whether the superannuation interest is in the growth phase or the payment
phase, by the nature of the member spouse's superannuation interest, and by
reference to the provisions of the instrument.
23F—Non-member
spouse's entitlement where pension is in growth phase
(1) If
the Board is served with a splitting instrument in respect of a pension that is
in the growth phase, the non-member spouse is not entitled to receive his or
her entitlement in the form of a pension commencing at the same time as the
member spouse's pension under this Act but is, instead, (subject to
section 23E(2)) entitled to have a lump sum determined under this section
paid on his or her behalf in accordance with this Part.
(2) The lump sum to which the non-member spouse
is entitled, as at the operative time, will be determined—
(a) where
the splitting instrument specifies a percentage of the member spouse's
superannuation interest for the purposes of the split—by applying that
percentage split to the member spouse's superannuation interest based on the
relevant accrued benefit multiple and by applying any relevant method or factor
that applies under section 23D;
(b) subject
to subsection (3), where the splitting instrument specifies a lump sum amount
for the purposes of the split—by adopting that lump sum.
(3) The
value of a lump sum payable to a non-member spouse under this section must not
exceed the value of the member spouse's interest.
23G—Non-member
spouse's entitlement where pension is in payment phase
(1) If
the Board is served with a splitting instrument in respect of a pension that is
in the payment phase, the Board must divide the pension between the member
spouse and non-member spouse in accordance with the instrument, with effect
from the operative time.
(2) The non-member spouse may—
(a) —
(i) in
accordance with the terms of the splitting instrument; or
(ii) by
notice in writing given to the Board within the prescribed period,
elect to have the whole of his or her share of the superannuation
interest determined under subsection (1) converted to (and taken as) a
separate pension entitlement (to be referred to as an associate pension
for the purposes of this Act) for the lifetime of the non-member spouse; or
(b) by
notice in writing given to the Board within the prescribed period, elect to
have the whole of his or her share of the superannuation interest determined
under subsection (1) commuted to a lump sum.
(3) The following provisions will apply with
respect to an associate pension:
(a) the
amount of the pension will be determined by applying the methods and factors
prescribed by the regulations;
(b) no
derivative, reversionary or other rights will arise or continue on account of
an entitlement to the pension after the death of the non-member spouse.
(4) A
lump sum under subsection (2)(b) will be determined by applying the
methods and factors prescribed by the regulations.
(5) If
the non-member spouse is taking his or her entitlement as a pension (other than
an associate pension) and there is a reduction in the member spouse's pension
under this Act, there will be a corresponding reduction in the non-member
spouse's pension.
(6) If
the non-member spouse is taking his or her entitlement as a pension (other than
an associate pension) and the payment of the member spouse's pension ceases,
there will be a corresponding cessation in the payment of the non-member
spouse's pension.
(7) If
the non-member spouse dies while entitled to, or in receipt of, a pension under
this section (other than an associate pension), the non-member spouse's legal
representative may, by notice in writing given to the Board within the
prescribed period, elect to have the pension commuted to a lump sum.
(8) A
lump sum under subsection (7) will be determined by applying the methods
and factors prescribed by the regulations to the non-member spouse's
entitlement.
(9) In this section—
legal representative, in relation to a deceased non-member
spouse, means a person—
(a) holding
office as executor of the will of the deceased non-member spouse where probate
of the will has been granted or resealed in South Australia or any other State
or a Territory; or
(b) holding
office in South Australia or any other State or a Territory as administrator of
the estate of the deceased non-member spouse.
23H—Payment
of non-member spouse's entitlement
(1) If the interest of a non-member spouse
created under this Part after service of a splitting instrument or after the
commutation of a pension payable to the non-member spouse is a lump sum, the
interest will, according to the election of the non-member spouse—
(a) be
paid out to the extent (if any) that payment can be made in accordance with the
SIS Act; or
(b) be
rolled over to the credit of the non-member spouse in an account (which may
need to be established) in the name of the non-member spouse in the Southern
State Superannuation Fund; or
(c) be
rolled over or transferred to some other superannuation fund or scheme approved
by the Board.
(2) The
Board must take the action required under subsection (1) within 28 days
after receiving the relevant election.
(3) However,
if an election is not made by the non-member spouse before the end of 28 days
after the Board gives notice to the non-member spouse in the manner
contemplated by the regulations, the Board must, subject to the regulations,
roll over the interest to the credit of the non-member spouse under
subsection (1)(b).
(4) If
the interest of a non-member spouse created under this Part after service of a
splitting instrument is a pension (and the non-member spouse has not directed
that the pension be commuted to a lump sum), the Board must split the relevant
pension within the prescribed period after receipt of the splitting instrument
(with effect from the relevant date), and begin to make the payments in
accordance with the regulations (subject to any cessation of payment of the
member spouse's pension).
23I—Reduction
in member's entitlement
(1) Despite
the other provisions of this Act, if a payment split is payable with respect to
the superannuation interest of a member, there is a corresponding reduction in
the entitlement of the member under this Act.
(2) A reduction in the entitlement of a member
will be given effect as follows:
(a) the
member's contribution account will be subject to a charge that takes effect by
reducing the balance of that account at the operative time (insofar as a
balance exists) by a percentage equal to the percentage that the non-member's
share in the relevant superannuation interest bears to the total value of the
member's accrued superannuation benefit at the operative time (and any relevant
method or factor that applies under section 23D will be applied); and
(b) except
with respect to a pension in the payment phase, any entitlement in respect of a
pension in the growth phase and any component in the nature of an
employer-funded component of a superannuation benefit payable to the member
after the creation of the relevant interest for the benefit of the non-member
spouse will, as from the operative date, be reduced by a percentage equal to
the percentage that the non-member's share in the relevant superannuation
interest bears to the total value of the member's accrued superannuation
benefit at the operative time (and any relevant method or factor that applies
under section 23D will be applied); and
(c) any
pension in the payment phase will, depending on the terms of the splitting
instrument, be reduced by—
(i) the
value of the non-member spouse's share in the relevant superannuation interest;
or
(ii) the
percentage of the relevant superannuation interest to be shared with the
non-member spouse.
(3) A
reduction in the entitlement of a member will not extend to any superannuation
benefit that is not a splittable payment under Part VIIIB of the Family Law
Act 1975 of the Commonwealth.
(4) If
2 or more reductions must be made with respect to an entitlement of a member
because 2 or more splitting instruments have been served on the Board, the
Board may determine to apply the reductions separately, or in aggregate.
23J—Pension
not payable to spouse on death of member if split has occurred
If a member or former member dies and is survived by a spouse who
has received, is receiving or is entitled to receive a benefit under a splitting
instrument, the spouse is not entitled to a benefit under this Act in respect
of the deceased member (except in accordance with the instrument) and will not
be considered to be a spouse of the deceased person for the purposes of section
36A (if relevant).
23K—Board to
comply with Commonwealth requirements
The Board must comply with the requirements imposed on the Board
under Part VIIIB of the Family Law Act 1975 of the Commonwealth.
23L—Fees
(1) The
Board may fix fees in respect of matters in relation to which fees may be
charged under regulation 59 of the Commonwealth regulations.
(2) Any fee fixed under subsection (1)
that is payable by a member spouse or a non-member spouse and has not been paid
within 1 month of the amount becoming payable may be deducted by the Board—
(a) if
the outstanding fee is payable by a member spouse—
(i) from
the member spouse's contribution account; or
(ii) from
any benefit payable to the member spouse under this Act; or
(b) if
the outstanding fee is payable by a non-member spouse—
(i) from
any interest that is to be rolled over or transferred to a fund for the benefit
of the non-member spouse; or
(ii) from
any other benefit payable to the non-member spouse under this Act.
Immediately after section 26 insert:
26AAA—Spouse
entitlement subject to any Family Law determination
A surviving spouse will not be entitled to a benefit under this
Division where section 23J applies to the spouse and the amount of any benefit
payable to any other spouse must take into account any reduction that has been
made under section 23I.
After section 39 insert:
39A—Confidentiality
(1) A member or former member of the Board or
the board of directors of the Superannuation Funds Management Corporation of
South Australia, or a person employed or formerly employed in the
administration of this Act, must not divulge information as to the entitlements
or benefits of any person under this Act except—
(a) as
required by or under any Act of the State or the Commonwealth; or
(b) to,
or with the consent of, that person; or
(c) to
an employee of either House of Parliament of the State for purposes related to
the administration of this Act; or
(d) to
any other person for purposes related to the administration of this Act; or
(e) as may be required by a court.
Maximum penalty: $10 000.
(2) A member or former member of the Board or
the board of directors of the Superannuation Funds Management Corporation of
South Australia, or a person employed or formerly employed in the
administration of this Act, must not divulge information if to do so is
inconsistent with a requirement imposed on the trustee of an eligible
superannuation plan under Part VIIIB of the Family Law Act 1975 of
the Commonwealth.
Maximum penalty: $10 000.
(3) This
section does not prevent the disclosure of statistical or other information
related to members generally or to a class of members rather than to an
individual member.
9—Amendment of section 40—Regulations
Section 40—after its present contents (now
to be designated as subsection (1)) insert:
(2) Without
limiting subsection (1), the regulations may make any provision that is
necessary in view of the provisions of Part VIIIB of the Family Law
Act 1975 of the Commonwealth, including by modifying the operation of
any provision of this Act in prescribed circumstances in order to ensure that
this Act operates in a manner that is consistent with, and complementary to,
the requirements of that Commonwealth Act.
Part 4—Amendment of Police Superannuation Act 1990
10—Amendment of section 26—Death of contributor
Section 26—after subsection (2) insert:
(2a) However,
a surviving spouse will not be entitled to a benefit under this section if
section 38K applies to the spouse.
11—Amendment of section 32—Benefits payable on contributor's death
Section 32—after subsection (1a) insert:
(1b) However,
a surviving spouse will not be entitled to a benefit under this section if
section 38K applies to the spouse and the amount of any benefit payable to a
person must take into account any reduction that has been made under section
38J.
After Part 5A insert:
Part 5B—Family
Law Act provisions
Division 1—Preliminary
38F—Purpose
of this Part
The purpose of this Part is to facilitate the division under the Family
Law Act 1975 of the Commonwealth of superannuation interests between
spouses who have separated.
38G—Interpretation
In this Part, unless the contrary
intention appears—
age of retirement has the meaning assigned by the regulations;
Commonwealth regulations means the Family Law (Superannuation)
Regulations 2001 (No. 303 as amended) of the Commonwealth;
defined benefit interest means—
(a) a
benefit or superannuation interest that is a function of salary and membership
or service; or
(b) an
interest brought within the ambit of this definition by the regulations;
eligible person, in relation to a superannuation interest of a contributor, has
the same meaning as in section 90MZB of the Family Law Act 1975 of
the Commonwealth;
flag lifting agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth;
growth phase has the same meaning as in the Commonwealth regulations;
member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
non-member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
operative time has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
payment phase has the same meaning as in the Commonwealth regulations;
payment split has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
relevant date has the same meaning as in the Commonwealth regulations;
SIS Act means the Superannuation Industry (Supervision) Act 1993
of the Commonwealth;
Southern State Superannuation Fund means the fund of that name established
under the Southern State Superannuation Act 1994;
splitting instrument means—
(a) a
superannuation agreement; or
(b) a
flag lifting agreement that provides for a payment split; or
(c) a
splitting order;
splitting order has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
superannuation agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth.
38H—Value of
superannuation interest
(1) For
the purposes of this Part (but subject to subsection (2)), the value of
any superannuation interest will be determined in accordance with Part 5 of the
Commonwealth regulations (insofar as those regulations provide a method for
determining that value), subject to any modification prescribed by regulation
under this Act.
(2) An
approval of the Commonwealth Minister under regulation 38 or 43A of the
Commonwealth regulations that relates to a superannuation interest under this
Act will have effect for the purposes of this Part.
38I—Board to
comply with Commonwealth requirements
The Board must comply with the requirements imposed on the Board
under Part VIIIB of the Family Law Act 1975 of the Commonwealth.
38J—Reduction
in contributor's entitlement
(1) Despite
the other provisions of this Act, if a payment split is payable with respect to
the superannuation interest of a contributor, there is a corresponding
reduction in the entitlement of the contributor under this Act.
(2) A reduction in the entitlement of a contributor
will be given effect as follows:
(a) the
contributor's contribution account will be subject to a charge that takes
effect by reducing the balance of that account at the operative time (insofar
as a balance exists) by a percentage equal to the percentage that the
non-member spouse's share in the relevant superannuation interest bears to the
total value of the contributor's accrued superannuation benefit at the
operative time (and any relevant method or factor that applies under
section 38H will be applied); and
(b) except
with respect to a pension in the payment phase, any entitlement in respect of a
pension in the growth phase and any employer-funded component of a
superannuation benefit payable to the contributor after the creation of the
relevant interest for the benefit of the non-member spouse will, as from the
operative date, be subject to a reduction that takes effect by reducing—
(i) the
number of contribution points; and
(ii) factor
"M" in a formula under this Act (insofar as this is relevant to a
determination of an employer-funded component in the particular case),
to the extent necessary to take into account, to its full extent,
the employer-funded component of the value of the non-member spouse's interest
(and any relevant method or factor that applies under section 38H will be
applied); and
(c) any
pension in the payment phase will, depending on the terms of the splitting
instrument, be reduced by—
(i) the
value of the non-member spouse's share in the relevant superannuation interest;
or
(ii) the
percentage of the relevant superannuation interest to be shared with the
non-member spouse.
(3) A
reduction in the entitlement of a contributor will not extend to any
superannuation benefit that is not a splittable payment under Part VIIIB of the
Family Law Act 1975 of the Commonwealth.
(4) A
reduction in contribution points in connection with the operation of this Part
does not affect the aggregate of contribution points that would apply under
section 18 but for the operation of subsection (2).
(5) If
2 or more reductions must be made with respect to an entitlement of a
contributor because 2 or more splitting instruments have been served on the
Board, the Board may determine to apply the reductions separately, or in
aggregate.
38K—Benefit
not payable to spouse on death of member if split has occurred
If a contributor dies and is survived by a spouse who has
received, is receiving or is entitled to receive a benefit under a splitting
instrument, the spouse is not entitled to a benefit under this Act in relation
to the deceased contributor (except in accordance with the instrument) and will
not be considered to be a spouse of the contributor for the purposes of section
41 (if relevant).
Division 2—New
scheme contributors
38L—Application
of Division
This Division applies only to the division of superannuation
interests in respect of member spouses who are new scheme contributors.
38M—Accrued
benefit multiple
(1) For
the purposes of the Commonwealth regulations, the accrued benefit
multiple in respect of a superannuation interest payable as a lump sum
is the multiple of annual salary that the member spouse would be entitled to
receive at the prescribed date assuming that the member spouse retired on that
day at or over the age of retirement (as the case requires) with the member
spouse's accrued contribution points and contribution period as at that day.
(2) In
addition to any other information that may be provided by the Board in
connection with this Part, the Board may, on application, provide to an
eligible person a statement of the value of a superannuation interest of a
member spouse who is a new scheme contributor, as at a particular date
specified in the application.
(3) In this section—
prescribed date is the date that is relevant to the determination of an accrued
benefit multiple in the particular circumstances.
38N—Non-member
spouse's entitlement
(1) The
Board must, on service of a splitting instrument in respect of a lump sum
benefit, create an interest for the non-member spouse named in the instrument
in accordance with the provisions of the instrument, with effect from the
operative time.
(2) The
value of the non-member spouse's interest will be determined by reference to
the provisions of the instrument but in any event may not exceed the value of
the member spouse's interest.
(3) The interest of a non-member spouse under
subsection (1) will, according to the election of the non-member spouse—
(a) be
paid out to the extent (if any) that payment can be made in accordance with the
SIS Act; or
(b) be
rolled over to the credit of the non-member spouse in an account (which may
need to be established) in the name of the non-member spouse in the Southern
State Superannuation Fund; or
(c) be
rolled over or transferred to some other superannuation fund or scheme approved
by the Board.
(4) The
Board must take the action required under subsection (3) within 28 days
after receiving the relevant election.
(5) However,
if an election is not made by the non-member spouse before the end of 28 days
after the Board gives notice to the non-member spouse in the manner
contemplated by the regulations, the Board must, subject to the regulations,
roll over the interest to the credit of the non-member spouse under
subsection (3)(b).
Division 3—Old
scheme contributors
38O—Application
of Division
This Division applies only to the division of superannuation
interests in respect of member spouses who are old scheme contributors.
38P—Accrued
benefit multiple
(1) For
the purposes of the Commonwealth regulations, the accrued benefit
multiple in respect of a superannuation interest payable as a pension
is the percentage of annual salary that the member spouse would be entitled to
receive as a pension at the prescribed date assuming that the member spouse
retired on that day at or over the age of retirement (as the case requires)
with the member spouse's accrued contribution points and contribution period as
at that day.
(2) For
the purposes of the Commonwealth regulations, the accrued benefit
multiple in respect of a superannuation interest payable as a lump sum
that is a defined benefit interest is the multiple of annual salary that the
member spouse would be entitled to receive at the prescribed date assuming that
the member spouse retired on that day at or over the age of retirement (as the
case requires) and was taking his or her entitlement under the Act on that day.
(3) In
addition to any other information that may be provided by the Board in
connection with this Part, the Board may, on application, provide to an
eligible person a statement of the value of a superannuation interest of a
member spouse who is an old scheme contributor, as at a particular date
specified in the application.
(4) In this section—
prescribed date is the date that is relevant to the determination of an accrued
benefit multiple in the particular circumstances.
38Q—Non-member
spouse's entitlement
(1) The
Board must, on service of a splitting instrument, create an interest for the
non-member spouse named in the instrument, with effect from the operative time.
(2) The
form of the non-member spouse's interest will be determined on the basis of
whether the superannuation interest is in the growth phase or the payment
phase, by the nature of the member spouse's superannuation interest, and by
reference to the provisions of the instrument.
38R—Non-member
spouse's entitlement where pension is in growth phase
(1) If
the Board is served with a splitting instrument in respect of a pension that is
in the growth phase, the non-member spouse is not entitled to receive his or
her entitlement in the form of a pension commencing at the termination of the
member spouse's period of service but is, instead, entitled to have a lump sum
determined under this section paid on his or her behalf in accordance with this
Part.
(2) The lump sum to which the non-member spouse
is entitled, as at the operative time, will be determined—
(a) where
the splitting instrument specifies a percentage of the member spouse's
superannuation interest for the percentage of the split—by applying that
percentage split to the member's superannuation interest based on the relevant
accrued benefit multiple and by applying any relevant method or factor that
applies under section 38H;
(b) subject
to subsection (3), where the splitting instrument specifies a lump sum for
the purposes of the split—by adopting that lump sum.
(3) The
value of a lump sum payable to a non-member spouse under this section must not
exceed the value of the member spouse's interest.
38S—Non-member
spouse's entitlement where pension is in payment phase
(1) If
the Board is served with a splitting instrument in respect of a pension that is
in the payment phase, the Board must divide the pension between the member
spouse and non-member spouse in accordance with the instrument, with effect
from the operative time.
(2) The non-member spouse may—
(a) —
(i) in
accordance with the terms of the splitting instrument; or
(ii) by
notice in writing given to the Board within the prescribed period,
elect to have the whole of his or her share of the superannuation
interest determined under subsection (1) converted to (and taken as) a
separate pension entitlement (to be referred to as an associate pension
for the purposes of this Act) for the lifetime of the non-member spouse; or
(b) by
notice in writing given to the Board within the prescribed period, elect to
have the whole of his or her share of the superannuation interest determined
under subsection (1) commuted to a lump sum.
(3) The following provisions will apply with
respect to an associate pension:
(a) the
amount of the pension will be determined by applying the methods and factors
prescribed by the regulations;
(b) the
non-member spouse will not be taken to be a contributor on account of the
entitlement to the pension;
(c) the
pension will be indexed;
(d) no
derivative, reversionary or other rights will arise or continue on account of
the entitlement to the pension after the death of the non-member spouse.
(4) A
lump sum under subsection (2)(b) will be determined by applying the
methods and factors prescribed by the regulations.
(5) If
the non-member spouse is taking his or her entitlement as a pension (other than
an associate pension) and there is a reduction in the member spouse's pension
under this Act, there will be a corresponding reduction in the non-member
spouse's pension.
(6) If
the non-member spouse is taking his or her entitlement as a pension (other than
an associate pension) and the payment of the member spouse's pension ceases,
there will be a corresponding cessation in the payment of the non-member
spouse's pension.
(7) If
the non-member spouse dies while entitled to, or in receipt of, a pension under
this section (other than an associate pension), the non-member spouse's legal
representative may, by notice in writing given to the Board within the
prescribed period, elect to have the pension commuted to a lump sum.
(8) A
lump sum under subsection (7) will be determined by applying the method
and factors prescribed by the regulations to the non-member spouse's
entitlement.
(9) In this section—
legal representative, in relation to a deceased non-member
spouse, means a person—
(a) holding
office as executor of the will of the deceased non-member spouse where probate
of the will has been granted or resealed in South Australia or any other State
or a Territory; or
(b) holding
office in South Australia or any other State or a Territory as administrator of
the estate of the deceased non-member spouse.
38T—Payment
of non-member spouse's entitlement
(1) If the interest of a non-member spouse
created under this Part after service of a splitting instrument or after the
commutation of a pension payable to the non-member spouse is a lump sum, the
interest will, according to the election of the non-member spouse—
(a) be
paid out to the extent (if any) that payment can be made in accordance with the
SIS Act; or
(b) be
rolled over to the credit of the non-member spouse in an account (which may
need to be established) in the name of the non-member spouse in the Southern
State Superannuation Fund; or
(c) be
rolled over or transferred to some other superannuation fund or scheme approved
by the Board.
(2) The
Board must take the action required under subsection (1) within 28 days
after receiving the relevant election.
(3) However,
if an election is not made by the non-member spouse before the end of 28 days
after the Board gives notice to the non-member spouse in the manner
contemplated by the regulations, the Board must, subject to the regulations,
roll over the interest to the credit of the non-member spouse under
subsection (1)(b).
(4) If
the interest of a non-member spouse created under this Part after service of a
splitting instrument is a pension (and the non-member spouse has not directed
that the pension be commuted to a lump sum), the Board must split the relevant
pension within the prescribed period after receipt of the splitting instrument
(with effect from the relevant date), and begin to make the payments in
accordance with the regulations (subject to any cessation of the payment of the
member spouse's pension).
Division 4—Fees
38U—Fees
(1) The
Board may fix fees in respect of matters in relation to which fees may be
charged under regulation 59 of the Commonwealth regulations.
(2) Any fee fixed under subsection (1)
that is payable by a member spouse or a non-member spouse and has not been paid
within 1 month of the amount becoming payable may be deducted by the Board—
(a) if
the outstanding fee is payable by a member spouse—
(i) from
the member spouse's contribution account; or
(ii) from
any benefit payable to the member spouse under this Act;
(b) if
the outstanding fee is payable by a non-member spouse—
(i) from
any interest that is to be rolled over or transferred to a fund for the benefit
of the non-member spouse; or
(ii) from
any other benefit payable to the non-member spouse under this Act.
13—Amendment of section 49—Confidentiality
Section 49—after subsection (1) insert:
(1a) A member or former member of the Board or
the board of directors of the Superannuation Funds Management Corporation of
South Australia, or a person employed or formerly employed in the
administration of this Act, must not divulge information if to do so is
inconsistent with a requirement imposed on the trustee of an eligible
superannuation plan under Part VIIIB of the Family Law Act 1975 of
the Commonwealth.
Maximum penalty: $10 000.
14—Amendment of section 52—Regulations
Section 52—after subsection (2) insert:
(3) Without
limiting subsection (1), the regulations may make any provision that is
necessary in view of the provisions of Part VIIIB of the Family Law
Act 1975 of the Commonwealth, including by modifying the operation of
any provision of this Act in prescribed circumstances in order to ensure that
this Act operates in a manner that is consistent with, and complementary to,
the requirements of that Commonwealth Act.
Part 5—Amendment of Southern State Superannuation Act 1994
15—Amendment of section 3—Interpretation
(1) Section 3(1), definition of rollover
account —delete the definition and substitute:
rollover account means an account established and maintained by the Board as a
rollover account in accordance with the requirements of this Act;
(2) Section 3—after subsection (7) insert:
(8) For
the purposes of this Act, an amount of money rolled over for payment into the
Fund under the provisions of another Act that operate in conjunction with Part
VIIIB of the Family Law Act 1975 of the Commonwealth will, subject
to this Act, be taken to be money rolled over from a superannuation scheme to
the Triple S scheme.
16—Amendment of section 7—Contribution and rollover accounts
Section 7—after subsection (2b) insert:
(3) The Board may, in an appropriate case,
debit against—
(a) a
member's contribution account established pursuant to Part 5A of this Act or
established to accept money rolled over under the provisions of another Act
that correspond to Part 5A of this Act; or
(b) a
member's rollover account,
(or both), an administrative charge fixed by the Board.
(4) The
Board may, for the purposes of subsection (3), fix different charges
depending on the balance of members' accounts or any other relevant factor.
17—Amendment of section 12—Payment of benefits
Section 12(1)—delete "a spouse of a
deceased member or to a deceased member's estate" and substitute:
any other person who has an entitlement to the payment of a
benefit or other amount with respect to a superannuation interest
18—Amendment of section 14—Membership
Section 14—after subsection (9) insert:
(10) If—
(a) a
person who is not a member of the Triple S scheme has an entitlement to a lump
sum under Part 5A of this Act or under the provisions of another Act that
correspond to that Part; and
(b) that
entitlement is to be retained in the Fund, or rolled over for payment into the
Fund (as the case may be),
then that person becomes a member of the Triple S scheme by force
of this subsection.
(11) The
Governor may, by regulation, make any provision in connection with the
operation of subsection (10), including by providing that a specified
provision of this Act does not apply to a person who becomes a member of the
Triple S scheme by virtue of that subsection, or applies to such a person
subject to any modification prescribed by the regulations.
19—Amendment of section 21—Basic Invalidity/Death Insurance
Section 21(2)—delete "or (6)"
and substitute:
, (6) or (10)
20—Amendment of section 22—Application for additional invalidity/death insurance
Section 22(1b)—delete "or (6)"
and substitute:
, (6) or (10)
21—Amendment of section 25—Contributions
Section 25(2)—delete "or (6)"
and substitute:
, (6) or (10)
22—Amendment of section 26—Payments by employers
Section 26—after subsection (2) insert:
(2a) This
section does not apply in relation to a person who is a member of the scheme by
virtue of section 14(10).
23—Amendment of section 27—Employer contribution accounts
Section 27—after subsection (10) insert:
(11) This
section does not apply in relation to a person who is a member of the scheme by
virtue of section 14(10).
24—Amendment of section 35—Death of member
Section 35—after subsection (2) insert:
(2a) However,
a surviving spouse will not be entitled to a benefit under this section if
section 35F applies to the spouse.
After Part 5 insert:
Part 5A—Family
Law Act provisions
35A—Purpose
of this Part
The purpose of this Part is to facilitate the division under the Family
Law Act 1975 of the Commonwealth of superannuation interests between
spouses who have separated.
35B—Interpretation
In this Part, unless the contrary
intention appears—
Commonwealth regulations means the Family Law (Superannuation)
Regulations 2001 (No. 303 as amended) of the Commonwealth;
eligible person, in relation to a superannuation interest of a member, has the
same meaning as in section 90MZB of the Family Law Act 1975 of the
Commonwealth;
flag lifting agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth;
member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
non-member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
operative time has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
payment split has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
splitting instrument means—
(a) a
superannuation agreement; or
(b) a
flag lifting agreement that provides for a payment split; or
(c) a
splitting order;
splitting order has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
superannuation agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth.
35C—Non-member
spouse entitlement
(1) The
Board must, on service of a splitting instrument, create an interest for the
non-member spouse named in the instrument in accordance with the provisions of
the instrument, with effect from the operative time.
(2) The
value of the non-member spouse's interest will be determined by reference to
the provisions of the instrument but in any event may not exceed the value of
the member spouse's interest.
35D—Payment
of lump sum
(1) The interest of a non-member spouse under
section 35C will, according to the election of the non-member spouse—
(a) be
paid out to the extent (if any) that payment can be made in accordance with the
SIS Act; or
(b) be
retained to the credit of the non-member spouse in an account in the name of
the non-member spouse in the Fund; or
(c) be
rolled over or transferred to some other superannuation fund or scheme approved
by the Board.
(2) The
Board must, if necessary, establish a member's contribution account so as to
provide for the requirements of subsection (1)(b).
(3) The
Board must take the action required under subsection (1) within 28 days
after receiving the relevant election.
(4) However,
if an election is not made by the non-member spouse before the end of 28 days
after the Board gives notice to the non-member spouse in the manner
contemplated by the regulations, the Board must, subject to the regulations,
transfer the interest to the credit of the non-member spouse under
subsection (1)(b).
35E—Reduction
in member's entitlement
(1) Despite
the other provisions of this Act, if a payment split is payable with respect to
the superannuation interest of a member, there is a corresponding reduction in
the entitlement of the member under this Act.
(2) A
reduction in the entitlement of a member will be given effect on the basis that
the member's contribution account, rollover account and employer contribution
account (insofar as they exist) will be subject to a charge that takes effect
by reducing the balance of each of those accounts at the operative time
(insofar as a balance exists) by a percentage equal to the percentage that the
non-member spouse's share in the relevant superannuation interest bears to the
total value of the contributor's accrued superannuation benefit at the
operative time (subject to any relevant method or factor adopted or applied by
the regulations and to the extent necessary to take into account the full value
of the entitlement of the non-member spouse).
(3) A
reduction in the entitlement of a member will not extend to any superannuation
benefit that is not a splittable payment under Part VIIIB of the Family Law
Act 1975 of the Commonwealth.
(4) If
2 or more reductions must be made with respect to an entitlement of a member
because 2 or more splitting instruments have been served on the Board, the
Board may determine to apply the reductions separately, or in aggregate.
35F—Lump sum
not payable to person who has received benefit under splitting instrument
If a member dies and is survived by a spouse who has received, is
receiving or is entitled to receive a benefit under a splitting instrument, the
spouse is not entitled to a benefit under this Act in respect of the deceased
member (except in accordance with the instrument) and will not be considered to
be a spouse of the deceased member for the purposes of section 43 (if
relevant).
35G—Board to
comply with Commonwealth requirements
The Board must comply with the requirements imposed on the Board
under Part VIIIB of the Family Law Act 1975 of the Commonwealth.
35H—Provision
of information
In addition to any other information that may be provided by the
Board in connection with this Part, the Board may, on application, provide to
an eligible person a statement of the value of a superannuation interest of a
member spouse, as at a particular date specified in the application.
35I—Payment
from contribution account in name of non-member spouse
Where the interest of a spouse (or former spouse) is paid into a
contribution account under section 35D(1)(b), or is rolled over for
payment into an account under this Act under the provisions of another Act that
correspond to this Part of this Act, the amount paid into the account will be
taken to be a rollover component that may be paid out in accordance with
section 32(6).
35J—Fees
(1) The
Board may fix fees in respect of matters in relation to which fees may be
charged under regulation 59 of the Commonwealth regulations.
(2) Any fee under subsection (1) that is
payable by a member spouse or a non-member spouse and has not been paid within
1 month of the amount becoming payable may be deducted by the Board—
(a) if
the outstanding fee is payable by a member spouse—
(i) from
the member spouse's contribution account; or
(ii) from
any benefit payable to the member spouse under this Act;
(b) if
the outstanding fee is payable by a non-member spouse—
(i) from
any interest that is to be rolled over or transferred to a fund for the benefit
of the non-member spouse; or
(ii) from
any other benefit payable to the non-member spouse under this Act.
26—Amendment of section 47A—Confidentiality
Section 47A—after subsection (1) insert:
(1a) A member or former member of the Board or
the board of directors of the Superannuation Funds Management Corporation of
South Australia, or a person employed or formerly employed in the
administration of this Act, must not divulge information if to do so is
inconsistent with a requirement imposed on the trustee of an eligible
superannuation plan under Part VIIIB of the Family Law Act 1975 of
the Commonwealth.
Maximum penalty: $10 000.
27—Amendment of section 49—Regulations
Section 49—after subsection (2) insert:
(3) Without
limiting subsection (1), the regulations may make any provision that is
necessary in view of the provisions of Part VIIIB of the Family Law
Act 1975 of the Commonwealth, including by modifying the operation of
any provision of this Act in prescribed circumstances in order to ensure that
this Act operates in a manner that is consistent with, and complementary to,
the requirements of that Commonwealth Act.
Part 6—Amendment of Superannuation Act 1988
28—Amendment of section 20B—Payment of benefits
Section 20B(1)—delete "Any payment to
be made under this Act to a contributor, a deceased contributor's estate, or a
spouse or child of a deceased contributor, must be made" and substitute:
Any benefit or other entitlement payable under this Act must be
paid
29—Amendment of section 32—Death of contributor
Section 32—after subsection (2) insert:
(2a) However,
a surviving spouse will not be entitled to a benefit under this section if
section 43AG applies to the spouse.
30—Amendment of section 38—Death of contributor
Section 38—after subsection (1a) insert:
(1b) However,
a surviving spouse will not be entitled to a benefit under this section if
section 43AG applies to the spouse and the amount of any benefit payable to a
person must take into account any reduction that has been made under section
43AF.
The following Part is inserted after Part
5 of the principal Act:
Part 5A—Family
Law Act provisions
Division 1—Preliminary
43AB—Purpose
of this Part
The purpose of this Part is to facilitate the division under the Family
Law Act 1975 of the Commonwealth of superannuation interests between
spouses who have separated.
43AC—Interpretation
In this Part, unless the contrary
intention appears—
Commonwealth regulations means the Family Law (Superannuation)
Regulations 2001 (No. 303 as amended) of the Commonwealth;
defined benefit interest means a benefit or superannuation interest
that is a function of salary and membership or service;
eligible person, in relation to a superannuation interest of a contributor, has
the same meaning as in section 90MZB of the Family Law Act 1975 of
the Commonwealth;
flag lifting agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth;
growth phase has the same meaning as in the Commonwealth regulations;
member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
non-member spouse has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
operative time has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
payment phase has the same meaning as in the Commonwealth regulations;
payment split has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
relevant date has the same meaning as in the Commonwealth regulations;
SIS Act means the Superannuation Industry (Supervision) Act 1993
of the Commonwealth;
Southern State Superannuation Fund means the fund of that name established
under the Southern State Superannuation Act 1994;
splitting instrument means—
(a) a
superannuation agreement; or
(b) a
flag lifting agreement that provides for a payment split; or
(c) a
splitting order;
splitting order has the same meaning as in Part VIIIB of the Family Law
Act 1975 of the Commonwealth;
superannuation agreement has the same meaning as in Part VIIIB of
the Family Law Act 1975 of the Commonwealth.
43AD—Value
of superannuation interest
(1) For
the purposes of this Part (but subject to subsection (2)), the value of
any superannuation interest will be determined in accordance with Part 5 of the
Commonwealth regulations (insofar as those regulations provide a method for
determining that value), subject to any modification prescribed by regulation
under this Act.
(2) An
approval of the Commonwealth Minister under regulation 38 or 43A of the
Commonwealth regulations that relates to a superannuation interest under this
Act will have effect for the purposes of this Part.
43AE—Board
to comply with Commonwealth requirements
The Board must comply with the requirements imposed on the Board
under Part VIIIB of the Family Law Act 1975 of the Commonwealth.
43AF—Reduction
in member's entitlement
(1) Despite
the other provisions of this Act, if a payment split is payable with respect to
the superannuation interest of a contributor, there is a corresponding
reduction in the entitlement of the contributor under this Act.
(2) A reduction in the entitlement of a
contributor will be given effect as follows:
(a) the
contributor's contribution account will be subject to a charge that takes
effect by reducing the balance of that account at the operative time (insofar
as a balance exists) by a percentage equal to the percentage that the
non-member spouse's share in the relevant superannuation interest bears to the
total value of the contributor's accrued superannuation benefit at the operative
time (and any relevant method or factor that applies under section 43AD
will be applied); and
(b) except
with respect to a pension in the payment phase, any entitlement in respect of a
pension in the growth phase and any employer-funded component of a superannuation
benefit payable to the contributor after the creation of the relevant interest
for the benefit of the non-member spouse will, as from the operative time, be
subject to a reduction that takes effect by reducing—
(i) the
number of contribution points; and
(ii) factors
"M" and "n" in a formula under this Act (insofar as they
are relevant to a determination of an employer-funded component in the
particular case),
to the extent necessary to take into account, to its full extent,
the employer-funded component of the value of the non-member spouse's interest
(and any relevant method or factor that applies under section 43AD will be
applied); and
(c) any
pension in the payment phase will, depending on the terms of the splitting
instrument, be reduced by—
(i) the
value of the non-member spouse's share in the relevant superannuation interest;
or
(ii) the
percentage of the relevant superannuation interest to be shared with the
non-member spouse.
(3) A
reduction in the entitlement of a contributor will not extend to any
superannuation benefit that is not a splittable payment under Part VIIIB of the
Family Law Act 1975 of the Commonwealth.
(4) A
reduction in contribution points in connection with the operation of this Part
does not affect the aggregate of contribution points that would apply under
section 24 but for the operation of subsection (2).
(5) If
2 or more reductions must be made with respect to an entitlement of a
contributor because 2 or more splitting instruments have been served on the
Board, the Board may determine to apply the reductions separately, or in
aggregate.
43AG—Benefit
not payable to spouse on death of member if split has occurred
If a contributor dies and is survived by a spouse who has
received, is receiving, or is entitled to receive a benefit under a splitting
instrument, the spouse is not entitled to a benefit under this Act in respect
of the deceased contributor (except in accordance with the instrument) and will
not be considered to be a spouse of the deceased contributor for the purposes
of section 46 (if relevant).
Division 2—New
scheme contributors
43AH—Application
of Division
This Division applies only to the division of superannuation
interests in respect of member spouses who are new scheme contributors.
43AI—Accrued
benefit multiple
(1) For
the purposes of the Commonwealth regulations, the accrued benefit
multiple in respect of a superannuation interest payable as a lump sum
is the multiple of annual salary that the member spouse would be entitled to
receive at the prescribed date assuming that the member spouse retired on that
day at or over the age of retirement (as the case requires) with the member
spouse's accrued contribution points and contribution period as at that day.
(2) In
addition to any other information that may be provided by the Board in
connection with this Part, the Board may, on application, provide to an
eligible person a statement of the value of a superannuation interest of a
member spouse who is a new scheme contributor, as at a particular date
specified in the application.
(3) In this section—
prescribed date is the date that is relevant to the determination of an accrued
benefit multiple in the particular circumstances.
43AJ—Non-member
spouse's entitlement
(1) The
Board must, on service of a splitting instrument in respect of a lump sum
benefit, create an interest for the non-member spouse named in the instrument
in accordance with the provisions of the instrument, with effect from the
operative time.
(2) The
value of the non-member spouse's interest will be determined by reference to
the provisions of the instrument but in any event may not exceed the value of
the member spouse's interest.
(3) The interest of a non-member spouse under
subsection (1) will, according to the election of the non-member spouse—
(a) be
paid out to the extent (if any) that payment can be made in accordance with the
SIS Act; or
(b) be
rolled over to the credit of the non-member spouse in an account (which may
need to be established) in the name of the non-member spouse in the Southern
State Superannuation Fund; or
(c) be
rolled over or transferred to some other superannuation fund or scheme approved
by the Board.
(4) The
Board must take the action required under subsection (3) within 28 days
after receiving the relevant election.
(5) However,
if an election is not made by the non-member spouse before the end of 28 days
after the Board gives notice to the non-member spouse in the manner
contemplated by the regulations, the Board must, subject to the regulations,
roll over the interest to the credit of the non-member spouse under
subsection (3)(b).
Division 3—Old
scheme contributors
43AK—Application
of Division
This Division applies only to the division of superannuation
interests in respect of member spouses who are old scheme contributors.
43AL—Accrued
benefit multiple
(1) For
the purposes of the Commonwealth regulations, the accrued benefit
multiple in respect of a superannuation interest payable as a pension
is the percentage of annual salary that the member spouse would be entitled to
receive as a pension at the prescribed date assuming that the member spouse
retired on that day at or over the age of retirement (as the case requires)
with the member spouse's accrued contribution points and contribution period as
at that day.
(2) For
the purposes of the Commonwealth regulations, the accrued benefit
multiple in respect of a superannuation interest payable as a lump sum
that is a defined benefit interest is the multiple of annual salary that the
member spouse would be entitled to receive at the prescribed date assuming that
the member spouse retired on that day at or over the age of retirement (as the
case requires) and was taking his or her entitlement under the Act on that day.
(3) In
addition to any other information that may be provided by the Board in
connection with this Part, the Board may, on application, provide to an
eligible person a statement of the value of a superannuation interest of a
member spouse who is an old scheme contributor, as at a particular date
specified in the application.
(4) In this section—
prescribed date is the date that is relevant to the determination of an accrued
benefit multiple in the particular circumstances.
43AM—Non-member
spouse's entitlement
(1) The
Board must, on service of a splitting instrument, create an interest for the
non-member spouse named in the instrument, with effect from the operative time.
(2) The
form of the non-member spouse's interest will be determined on the basis of whether
the superannuation interest is in the growth phase or the payment phase, by the
nature of the member spouse's superannuation interest, and by reference to the
provisions of the instrument.
43AN—Non-member
spouse's entitlement where pension is in growth phase
(1) If
the Board is served with a splitting instrument in respect of a pension that is
in the growth phase, the non-member spouse is not entitled to receive his or
her entitlement in the form of a pension commencing at the same time as the
member spouse's pension under this Act but is, instead, entitled to have a lump
sum determined under this section paid on his or her behalf in accordance with
this Part.
(2) The lump sum to which a non-member spouse
is entitled, as at the operative time, will be determined—
(a) where
the splitting instrument specifies a percentage of the member spouse's
superannuation interest for the purposes of the split—by applying that
percentage split to the member spouse's superannuation entitlement based on the
relevant accrued benefit multiple and by applying any relevant method or factor
that applies under section 43AD;
(b) subject
to subsection (3), where the splitting instrument specifies a lump sum
amount for the purposes of the split—by adopting that lump sum.
(3) The
value of a lump sum payable to a non-member spouse under this section must not
exceed the value of the member spouse's interest.
43AO—Non-member
spouse's entitlement where pension is in payment phase
(1) If
the Board is served with a splitting instrument in respect of a pension that is
in the payment phase, the Board must split the pension between the member
spouse and non-member spouse in accordance with the instrument, with effect
from the operative time.
(2) The non-member spouse may—
(a) —
(i) in
accordance with the terms of the splitting instrument; or
(ii) by
notice in writing given to the Board within the prescribed period,
elect to have the whole of his or her share of the superannuation
interest determined under subsection (1) converted to (and taken as) a
separate pension entitlement (to be referred to as an associate pension
for the purposes of this Act) for the lifetime of the non-member spouse; or
(b) by
notice in writing given to the Board within the prescribed period, elect to have
the whole of his or her share of the superannuation interest determined under
subsection (1) commuted to a lump sum.
(3) The following provisions will apply with
respect to an associate pension:
(a) the
amount of the pension will be determined by applying the methods and factors
prescribed by the regulations;
(b) the
non-member spouse will not be taken to be a contributor on account of the
entitlement to the pension;
(c) the
pension will be indexed;
(d) no
derivative, reversionary or other rights will arise or continue on account of
the entitlement to the pension after the death of the non-member spouse.
(4) A
lump sum under subsection (2)(b) will be determined by applying the
methods and factors prescribed by the regulations.
(5) If
the non-member spouse is taking his or her entitlement as a pension (other than
an associate pension) and there is a reduction in the member spouse's pension
under this Act, there will be a corresponding reduction in the non-member
spouse's pension.
(6) If
the non-member spouse is taking his or her entitlement as a pension (other than
an associate pension) and the payment of the member spouse's pension ceases,
there will be a corresponding cessation in the payment of the non-member
spouse's pension.
(7) If
the non-member spouse dies while entitled to, or in receipt of, a pension under
this section (other than an associate pension), the non-member spouse's legal
representative may, by notice in writing given to the Board within the
prescribed period, elect to have the pension commuted to a lump sum.
(8) A
lump sum under subsection (7) will be determined by applying the methods
and factors prescribed by the regulations to the non-member spouse's
entitlement.
(9) In this section—
legal representative, in relation to a deceased non-member
spouse, means a person—
(a) holding
office as executor of the will of the deceased non-member spouse where probate
of the will has been granted or resealed in South Australia or any other State
or a Territory; or
(b) holding
office in South Australia or any other State or a Territory as administrator of
the estate of the deceased non-member spouse.
43AP—Payment
of non-member spouse's entitlement
(1) If the interest of a non-member spouse
created under this Division after service of a splitting instrument or after
the commutation of a pension payable to the non-member spouse is a lump sum,
the interest will, according to the election of the non-member spouse—
(a) be
paid out to the extent (if any) that payment can be made in accordance with the
SIS Act; or
(b) be
rolled over to the credit of the non-member spouse in an account (which may
need to be established) in the name of the non-member spouse in the Southern
State Superannuation Fund; or
(c) be
rolled over or transferred to some other superannuation fund or scheme approved
by the Board.
(2) The
Board must take the action required under subsection (1) within 28 days
after receiving the relevant election.
(3) However,
if an election is not made by the non-member spouse before the end of 28 days
after the Board gives notice to the non-member spouse in the manner
contemplated by the regulations, the Board must, subject to the regulations,
roll over the interest to the credit of the non-member spouse under subsection (1)(b).
(4) If
the interest of a non-member spouse created under this Division after service
of a splitting instrument is a pension (and the non-member spouse has not
directed that the pension be commuted to a lump sum), the Board must split the
relevant pension within the prescribed period after receipt of the splitting
instrument (with effect from the relevant date), and begin to make the payments
in accordance with the regulations (subject to any cessation of the payment of
the member spouse's pension).
Division 4—Fees
43AQ—Fees
(1) The
Board may fix fees in respect of matters in relation to which fees may be
charged under regulation 59 of the Commonwealth regulations.
(2) Any fee fixed under subsection (1)
that is payable by a member spouse or a non-member spouse and has not been paid
within 1 month of the amount becoming payable may be deducted by the Board—
(a) if
the outstanding fee is payable by a member spouse—
(i) from
the member spouse's contribution account; or
(ii) from
any benefit payable to the member spouse under this Act;
(b) if
the outstanding fee is payable by a non-member spouse—
(i) from
any interest that is to be rolled over or transferred to a fund for the benefit
of the non-member spouse; or
(ii) from
any other benefit payable to the non-member spouse under this Act.
32—Amendment of section 55—Confidentiality
Section 55—after subsection (1) insert:
(1a) A member or former member of the Board or
the board of directors of the Superannuation Funds Management Corporation of
South Australia, or a person employed or formerly employed in the
administration of this Act, must not divulge information if to do so is
inconsistent with a requirement imposed on the trustee of an eligible
superannuation plan under Part VIIIB of the Family Law Act 1975 of
the Commonwealth.
Maximum penalty: $10 000.
33—Amendment of section 59—Regulations
Section 59(1a)—after paragraph (b) insert:
(c) make
any provision that is necessary in view of the provisions of Part VIIIB of the Family
Law Act 1975 of the Commonwealth, including by modifying the operation
of any provision of this Act in prescribed circumstances in order to ensure
that this Act operates in a manner that is consistent with, and complementary
to, the requirements of that Commonwealth Act.
Schedule 1—Transitional provisions
In this Schedule—
relevant Act means an Act amended by this Act;
relevant authority means—
(a) the
Police Superannuation Board; or
(b) the
South Australian Parliamentary Superannuation Board; or
(c) the
South Australian Superannuation Board; or
(d) the
Treasurer.
Any step taken by a relevant authority before a section of this
Act is brought into operation that corresponds to a step that may be taken by
the relevant authority under a relevant Act after this Act is brought into
operation will be taken to be valid and effectual for the purposes of a
relevant Act as if it had been taken after the commencement of this Act.
Any splitting instrument, or other instrument, lodged with a
relevant authority before the commencement of this Act may take effect for the
purposes of a relevant Act after the commencement of this Act.
(1) The
Governor may, by regulation, make additional provisions of a saving or
transitional nature consequent on the enactment of this Act.
(2) A
provision of a regulation under subclause (1) may, if the regulation so
provides, take effect from the commencement of this Act or from an earlier day,
but not before 28 December 2002.
(3) To the extent to which a provision takes
effect under subclause (2) from a day earlier than the day of the
regulation's publication in the Gazette, the provision does not operate to the
disadvantage of a person by—
(a) decreasing
the person's rights; or
(b) imposing
liabilities on the person.
(4) The Acts Interpretation Act 1915 will, except to the extent of any inconsistency with the provisions of this Schedule (or regulations made under this Schedule), apply to any amendment effected by this Act.