Part 1Preliminary

Part 1—Preliminary 1—Short title This Act may be cited as the Parliamentary Superannuation Act 1974. 5—Interpretation (1) In this Act, unless the contrary intention appears— additional salary means the amount by which the salary of a member who holds Ministerial or other Parliamentary office exceeds the basic salary of a member, and includes any remuneration declared by proclamation to be additional salary for the purposes of this Act; approved form means a form approved by the Board; basic salary of a member means— (a) where the member holds no Ministerial or Parliamentary office—the salary to which the member is entitled under the Parliamentary Remuneration Act 1990; (b) where the member holds a Ministerial or Parliamentary office—the salary to which the member would be entitled under the Parliamentary Remuneration Act 1990 if the member held no such office; the Board means the South Australian Parliamentary Superannuation Board; child benefit means child benefit payable pursuant to Division 2 of Part 5; co‑contribution means a payment made to the Board in respect of a person by the Commissioner of Taxation pursuant to the requirements of the Superannuation (Government Co‑contribution for Low Income Earners) Act 2003 of the Commonwealth; co‑contribution account means an account established and maintained by the Board as a co‑contribution account in accordance with the requirements of this Act; complying superannuation fund has the meaning given by section 45 of the SIS Act; contribution means any contribution paid by a member pursuant to the repealed Act or this Act, or by or on behalf of a spouse member pursuant to this Act; death insurance benefit is the death insurance to which a PSS 3 member is entitled by virtue of his or her membership of PSS 3; deferred superannuation contributions surcharge in relation to a member means the amount that the member is liable to pay the Commissioner of Taxation under section 15(6) of the Superannuation Contributions Tax Act; eligible child means the child or adopted child— (a) of a deceased PSS 1 or PSS 2 member or deceased PSS 1 or PSS 2 member pensioner; or (b) of the spouse of a deceased PSS 1 or PSS 2 member or deceased PSS 1 or PSS 2 member pensioner, not being a child— (i) born of a pregnancy that commenced after the death of the member or pensioner; or (ii) adopted after the death of the member or pensioner; who— (c) has not attained the age of 16 years; or (d) having attained that age, has not attained the age of 25 years and is in full time attendance at an educational institution recognised by the Board for the purposes of this Act; former PSS 1 member means a person who was a PSS 1 member immediately before ceasing to be a member; former PSS 2 member means a person who was a PSS 2 member immediately before ceasing to be a member; the Fund means the Parliamentary Superannuation Fund established by this Act; invalidity insurance benefit is the invalidity insurance to which a PSS 3 member is entitled by virtue of his or her membership of PSS 3; judge means a judge of the Supreme Court nominated by the Chief Justice to exercise the powers of a judge under this Act; legal personal representative—see subsection (4); member means a member of either House of Parliament of the State, and includes a person who, having ceased to be such a member, is still in receipt of salary but does not include a non-participating member; member pensioner means a former member who is entitled to a pension under this Act by virtue of being a PSS 1 member or a PSS 2 member notwithstanding that, at the material time, payment of that pension may be suspended or the pension may be preserved under this Act; non-participating member means a member of either House of Parliament who has made an election under section 7E; notional pension— (a) in relation to a deceased PSS 1 or PSS 2 member, means the amount of pension that would have been payable to that deceased member on the day in relation to which the expression is used if— (i) on the day that he died, he had retired in the circumstances referred to in section 18; and (ii) he had been alive and in receipt of a pension on the day in relation to which the expression is used; and (b) in relation to a deceased member pensioner, means the amount of pension that would have been payable to that pensioner if he had been alive and in receipt of pension on the day in relation to which the expression is used; pension day, in relation to a pension, means the day on which a periodical payment of that pension is usually made; prescribed office means an office or position in respect of which additional salary is payable; PSS 1—see section 7C(1); PSS 2—see section 7C(2); PSS 3—see section 7C(3); PSS 1 member means a member of PSS 1—see section 7D(2); PSS 1 member pensioner means a member pensioner who was a PSS 1 member immediately before ceasing to be a member; PSS 2 member means a member of PSS 2—see section 7D(3); PSS 2 member pensioner means a member pensioner who was a PSS 2 member immediately before ceasing to be a member; PSS 3 member means a member of PSS 3—see sections 7D(4) and 7F; putative spouse—see section 7A; registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act; the repealed Act means the Parliamentary Superannuation Act 1948; salary means basic salary (expressed as an annual salary); service, in relation to a member, means the member's service as determined by the rules set out in section 7; SIS Act means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; special deposit account means a special deposit account established under section 8 of the Public Finance and Audit Act 1987; spouse includes a putative spouse; spouse member means a person who is a spouse member of PSS 3 pursuant to section 23AAK; spouse pension means— (a) a pension payable to the surviving spouse of a member or former member under the repealed Act that was so payable immediately before the commencement of this Act; or (b) a pension payable to the spouse of a deceased PSS 1 or PSS 2 member or deceased member pensioner and first payable on or after the commencement of this Act. State includes a Territory of the Commonwealth; Superannuation Contributions Tax Act means the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 of the Commonwealth; superannuation salary sacrifice means any salary that a member is sacrificing for the purposes of superannuation under section 4B of the Parliamentary Remuneration Act 1990; surcharge notice means a notice issued by the Commissioner of Taxation under section 15(7) of the Superannuation Contributions Tax Act. (2) The Governor may, by proclamation, declare any remuneration to which a member is entitled to be additional salary for the purposes of this Act and the Governor may, by proclamation, amend, vary or revoke any such declaration. (3) For the purposes of the definition of basic salary in subsection (1), the salary to which a member is entitled under the Parliamentary Remuneration Act 1990 includes the amount of any contribution that the member makes towards the cost of providing an article, motor vehicle, equipment or service by way of a salary sacrifice (as contemplated by section 4A(2) of that Act), the amount of any superannuation salary sacrifice (as contemplated by section 4B of that Act for the relevant period), and the amount of any contribution that the member makes towards the cost of providing an allowance or benefit by way of salary sacrifice (as contemplated by section 6A(2) of that Act). (4) For the purposes of this Act, a person is the legal personal representative of a deceased PSS 3 member or a deceased spouse member if— (a) the person has been nominated by the member or spouse member, by notice in writing to the Board, as the member's legal personal representative or the spouse member's legal personal representative in accordance with the requirements of the Board; and (b) the notice has effect for the purposes of the SIS Act. 6—Voluntary and involuntary retirement (1) For the purposes of this Act, a former member shall be deemed to have retired involuntarily if his term of office expires or he resigns and a judge is satisfied that, upon so ceasing to be a member— (a) he genuinely sought to be elected at an election for the Parliament of this State (whether or not for the same electorate or the same House), another State or the Commonwealth (being an election not later than the next general election for that Parliament occurring after he ceased to be a member) but— (i) having stood as a candidate, was defeated; or (ii) failed to be a candidate due to— (A) his failure to secure the support of a political party from which he reasonably sought support; or (B) his expulsion from a political party; or (C) ill health; or (D) any other good and sufficient reason; or (b) he sought to be and was elected at an election for the Parliament of another State or the Commonwealth (being an election not later than the next general election for that Parliament occurring after he ceased to be a member). (2) In addition, a former member will be taken to have retired involuntarily if— (a) at the conclusion of his or her last term of office as a member of the Parliament (the preceding term of office) the former member stood as a candidate for re-election to the same House at the ensuing election but was defeated; and (b) both at the time of his or her election for the preceding term of office and at the ensuing election the former member was— (i) endorsed by the same political party; or (ii) an independent candidate. (3) Where a member ceases to be a member otherwise than— (a) by death; or (b) on the grounds of invalidity or ill health that prevents the member from being able to carry out the duties of office to a reasonable degree; or (c) in circumstances referred to in subsection (1) or (2), that member shall, for the purposes of this Act, be deemed to have retired voluntarily. 7—Computation of service In computing the length of a member's service for the purposes of PSS 1 or PSS 2 the following rules shall be observed: (a) if a member is elected to Parliament between the 28th day of February and the 1st day of August in any year, except in the case of such a member elected to fill a casual vacancy, his service shall be reckoned from the 1st day of March of that year; and (b) if a member ceases to be a member of Parliament by reason of a dissolution taking place within 2 months before the expiration of the House of Assembly by effluxion of time, his service shall be deemed to continue until the day on which the House of Assembly would have so expired; and (c) service whether occurring before or after the commencement of this Act shall be taken into account; and (d) where the continuity of a member's service has been broken, the former period of service (and any service by the member in a prescribed office during that former period) shall not be taken into account (subject to paragraph (f) and to the operation of section 20); and (e) subject to this section, only the actual service of a member shall be regarded as service; and (f) actual service may include previous service if so provided by another section of this Act (including a section that made provision as to service before its repeal by the Parliamentary Superannuation (Scheme for New Members) Amendment Act 2005). 7A—Putative spouses (1) For the purposes of this Act, a person is, on a certain date, the putative spouse of another person if— (a) the person is, on that date, cohabiting with the other person as that person's de facto spouse and— (i) the person— (A) has been so cohabiting with the other person continuously for the preceding period of 3 years; or (B) has during the preceding period of 4 years so cohabited with the other person for periods aggregating not less than 3 years; or (ii) a child, of whom both persons are the parents, has been born (whether or not the child is still living); or (c) the person is, on that date, in a registered relationship with the other person. (2) Subject to subsection (2a), a person whose rights depend on whether— (a) the person and another person; or (b) 2 other persons, were, on a certain date, putative spouses 1 of the other may apply to the District Court for a declaration under this section. (2a) A person whose rights depend on whether— (a) the person and another person; or (b) 2 other persons, were, on a certain date, in a registered relationship may provide evidence that they or those persons, were, on that date, in the registered relationship by producing a certificate issued by the Registrar of Births, Deaths and Marriages under section 21 of the Relationships Register Act 2016. (3) If it is proved to the satisfaction of the Court that the persons in relation to whom the declaration under this section is sought did, on the date in question, fulfil the requirements of subsection (1), the Court must make a declaration accordingly. (4) A declaration may be made under this section— (a) whether or not one or both of the persons in relation to whom the declaration is sought are, or have ever been, domiciled in this State; or (b) despite the fact that one or both of them are dead. (5) It must not be inferred from the fact that the Court has declared that two persons were putative spouses one of the other, on a certain date, that they were putative spouses as at any prior or subsequent date. 7B—Restriction on publication of court proceedings (1) Protected information is information relating to an application under section 7A (including images) that identifies, or may lead to the identification of— (a) an applicant; or (b) a person who is related to, or associated with, an applicant or is, or is alleged to be, in any other way connected in the matter to which the application relates; or (c) a witness in the hearing of the application. (2) A person who publishes protected information is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. (3) A person who discloses protected information knowing that, in consequence of the disclosure, the information will, or is likely to, be published is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. (4) This section does not apply to— (a) the publication or disclosure of material— (i) by the District Court or an employee of the Courts Administration Authority (so long as such publication or disclosure is made in connection with the administrative functions of the Court); or (ii) for purposes associated with the administration of this Act; or (b) the publication in printed or electronic form of material that— (i) consists solely or primarily of the reported judgements or decisions of the Court; or (ii) is of a technical nature designed primarily for use by legal practitioners. newspaper means a newspaper, journal, magazine or other publication that is published at periodic intervals; publish means publish by newspaper, radio or television, or on the internet, or by some other similar means of communication to the public. 7C—Arrangement of schemes (1) The scheme of superannuation established by this Act in relation to persons who first became members of either House of Parliament of the State before the commencement of the Parliamentary Superannuation (New Scheme) Amendment Act 1995 (disregarding members who have transferred out of that scheme) will continue as PSS 1. (2) The scheme of superannuation established by virtue of the enactment of the Parliamentary Superannuation (New Scheme) Amendment Act 1995 will continue as PSS 2. (3) The scheme of superannuation established by virtue of the enactment of the Parliamentary Superannuation (Scheme for New Members) Amendment Act 2005 will be known as PSS 3. 7D—Membership of schemes relevant date means the date of the election held to determine membership of the fifty-first Parliament of the State. (2) Subject to this section, a member who first became a member of either House of Parliament of the State before the commencement of the Parliamentary Superannuation (New Scheme) Amendment Act 1995 (other than a member who transferred to PSS 2 by virtue of an election of the kind referred to in subsection (3)(b)) will be a member of PSS 1. (3) Subject to this section, a member— (a) who first became a member of either House of Parliament of the State on or after the commencement of the Parliamentary Superannuation (New Scheme) Amendment Act 1995 and before the relevant date; or (b) who has made an election in accordance with section 35A of this Act (as enacted by the Parliamentary Superannuation (New Scheme) Amendment Act 1995 and as repealed by the Parliamentary Superannuation (Scheme for New Members) Amendment Act 2005), will be a member of PSS 2. (4) A member— (a) who first becomes a member of either House of Parliament of the State on or after the relevant date; or (b) who, on or after the relevant date, again becomes a member of either House of Parliament of the State after a break in membership of the Parliament (disregarding for the purposes of this paragraph any case where a member's term comes to an end on the dissolution of the House of which he or she is a member or by virtue of a resignation or expires by the effluxion of time and the member is then returned at the election that next follows that dissolution, resignation or expiry, or any case where a member is returned at a joint sitting in prescribed circumstances), will be a member of PSS 3. (5) For the purposes of the cases described in subsection (4)(b)— (a) a member may be taken to be returned at an election even if the member, at the relevant election, is returned as a member of the House that is the other House to the House of which he or she was a member before the election; and (b) a member is returned at a joint sitting in prescribed circumstances if (and only if) the member is a person who was a member of the Parliament (and a member of PSS 1 or PSS 2) and who is then chosen under section 13 of the Constitution Act 1934 to be a member of the Legislative Council within 3 months after the date of an election (for either House of Parliament) so that his or her period of not being a member of Parliament does not exceed 6 months. (6) Despite a preceding subsection, if— (a) a PSS 1 or PSS 2 member stands for re-election but is not returned as having been re-elected; and (b) the Court of Disputed Returns subsequently declares the member to have been duly elected at that election or it declares the election void and the member is elected at the subsequent by-election; and (c) the member, within 3 months— (i) after a declaration by the Court that the member has been re-elected; or (ii) after re-election following a declaration by the Court that the election was void, or within such further period as the Board (in its absolute discretion) allows, makes an election under subsection (7), then the member may continue as a member of PSS 1 or PSS 2 (as the case may be). (7) An election under this subsection— (a) must be made in writing in a manner determined by the Board; and (b) subject to any other determination of the Treasurer, must be accompanied by a payment to the Treasurer of— (i) an amount equal to 11.5 per cent of the salary that was lost by reason of the fact that the member was not returned as elected in the first instance; and (ii) an amount equal to the amount (if any) paid to the member pursuant to this Act (whether by way of a pension or a lump sum, or both, or by way of a payment pursuant to Part 4 Division 3) following the return made at the original election. (8) For the purposes of this Act, the period of service of a member who continues as a PSS 1 or PSS 2 member under subsection (6) will be taken to include— (a) previous service that the member was, at the termination of the member's immediately preceding period of service, entitled to have counted as service under this Act; and (b) the period during which the member was unable to take his or her seat in Parliament by reason of not being returned as elected in the first instance. (9) If the Treasurer allows a further period to pay an amount under subsection (7), the Treasurer may impose such conditions (including a condition requiring payment of interest on any outstanding amount) as the Treasurer thinks fit, and the member will not be regarded as having complied with that subsection unless the member complies with those conditions. (10) The Treasurer may vary or revoke a condition under subsection (9). (11) If— (a) a PSS 3 member stands for re-election but is not returned as having been re‑elected; and (b) the Court of Disputed Returns subsequently declares the member to have been duly elected at that election or it declares the election void and the member is elected at the subsequent by-election, then the member must, in accordance with a determination of the Board, pay to the Treasurer— (c) an amount equal to the contributions that the member would have paid under Part 3 Division 3 assuming that the member had been returned in the first instance and been liable to make contributions at the rate that applied to the member immediately before the original election; and (d) an amount equal to the amount (if any) paid to the member pursuant to this Act following the return made at the original election. (12) When a member makes a payment under subsection (11)(c), the Treasurer must pay into the PSS 3-Government Contributions Division of the Fund, and the Board must credit to the member's Government contribution account, an amount equal to the amount that would have been payable under Part 3 Division 4 assuming that the member had been returned in the first instance and applying such other assumptions as the Board, with the agreement of the Treasurer, determines. (13) The fact that a former PSS 1 or former PSS 2 member who returns to Parliament then becomes a PSS 3 member under this section does not prejudice any entitlement that he or she may have under this Act with respect to his or her former membership of PSS 1 or PSS 2 before the break in membership of the Parliament. 7E—PSS 3 member may elect to participate in other schemes eligible member means a PSS 3 member, other than a person who is a member of PSS 3 by virtue of section 7D(4)(b) or 7F; fund includes a scheme or account; prescribed period, in relation to an eligible member, means the period of 3 months from the date on which the person became a PSS 3 member; RSA has the same meaning as in the Retirement Savings Accounts Act 1997 of the Commonwealth; self managed superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; specified fund means a fund specified in a notice under subsection (4)(a) or (10)(a). (2) An eligible member may, by notice in writing furnished to the Board during the prescribed period, elect to transfer his or her superannuation arrangements under this Act to a fund that complies with subsection (3). (3) A fund (a complying fund) complies with this subsection if it is— (a) a complying superannuation fund, other than a self managed superannuation fund; or (b) an RSA. (4) A notice under subsection (2) must— (a) specify the name of, and contact details for, the relevant fund; and (b) specify the date from which the election is to take effect, being a date— (i) that is at least 14 days but not more than 2 months from the date on which the notice is furnished to the Board; and (ii) that coincides with a date on which salary is due to be paid to the member; and (c) be accompanied by evidence that the fund will accept contributions under this section; and (d) contain or be accompanied by such other information (if any) as may be required by the Board. (5) If a person makes an election under subsection (2)— (a) the person will cease to be a member of PSS 3; and (b) the Board will cease to maintain (or, if relevant, will not be required to establish) an account in the name of the person under this Act (and Part 2B will cease to apply in relation to the person); and (c) any amount standing to the credit of the person's contribution account or Government contribution account (if any) must be carried over to the specified fund; and (d) the person will cease to be liable to make contributions under this Act; and (e) no entitlement or benefit will be payable to the person, or to any other person in respect of the person, under this Act (other than as provided by paragraph (f)); and (f) the Treasurer must, while the person is a member of either House of Parliament, make contributions to the specified fund for that person's benefit, in accordance with subsection (6). (6) For the purposes of subsection (5)(f), the contributions must be made in accordance with the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth as if the person were an employee of the State (see section 12(5) of that Act) and in order to avoid having an individual superannuation guarantee shortfall in respect of the person within the meaning of that Act. (7) An eligible member cannot make an election under this section if the Board has been served with a splitting instrument within the meaning of Part 4A in respect of the member's superannuation interest under this Act. (8) An election under subsection (2) is irrevocable. (9) However, a person may, by notice in writing furnished to the Board, vary an election under this section so as to select another complying fund for the purposes of this section. (10) A notice under subsection (9) must— (a) specify the name of, and contact details for, the new fund; and (b) be accompanied by evidence that the new fund will accept contributions under this section; and (c) contain or be accompanied by such other information (if any) as may be required by the Board. (11) A notice under subsection (9) will take effect on a date determined by the Board after consultation with the person who has furnished the notice. (12) A person who makes an election under this section does not become, by virtue of any liability under this section, a member of the Southern State Superannuation Scheme. (13) There can only be 1 fund that applies in relation to a member under this section at any particular time. (14) If— (a) a person makes an election under this section; and (b) the specified fund applying for the purposes of the election— (i) ceases to exist; or (ii) ceases to accept contributions under this section; or (iii) ceases to be a complying fund; and (c) the person does not, within the prescribed period, vary the election to specify another complying fund for the purposes of this section, then the Treasurer may, after consultation with the Board, specify another complying fund (which will then be taken to be a fund specified by the person for the purposes of this section). 7F—Special provisions relating to rollovers for PSS 1 and PSS 2 members (1) The Board must, on application under this section, permit— (a) a PSS 1 or PSS 2 member for whom an amount of money may be carried over from another superannuation fund or scheme; or (b) a former PSS 2 member who has a lump sum preserved under Part 4, to become a PSS 3 member in order to establish a rollover account for the person under this Act. (1a) If a PSS 1 or PSS 2 member for whom a rollover account has been established is, before the establishment of the account, a member of PSS 3 by virtue of section 7G, the member will, on the establishment of the account for the member, be taken for the purposes of this Act to be a member of PSS 3 by virtue of both this section and section 7G. (2) The following provisions apply in connection with the operation of subsection (1): (a) in the case of a former PSS 2 member under subsection (1)(b)—the preserved lump sum amount will, when paid into the rollover account, be taken to be a rollover component under Part 4 Division 2A (and will cease to be a preserved amount under another Division of Part 4); (b) Part 3 Divisions 3 and 4 will not apply to a person who is a PSS 3 member by virtue only of this section; (c) a person who is a PSS 3 member by virtue only of this section will not be entitled to any of the following under Part 4 Division 2A: (i) a Government-funded component of benefits; (ii) a member-funded component of benefits; (iii) an invalidity/death insurance benefit; (d) the Governor may, by regulation, make any other provision as the Governor thinks fit, including by providing that other provisions of this Act do not apply to a person who is a PSS 3 member by virtue of this section, or apply to such a member subject to any modifications prescribed by the regulations. 7G—Special provisions relating to salary sacrifice by members (1) The Board must, on application under this section, permit a PSS 1 or PSS 2 member who has elected to make a superannuation salary sacrifice to become a PSS 3 member in order to establish a Government contribution account for the member under this Act. (2) If a PSS 1 or PSS 2 member who has elected to make a superannuation salary sacrifice is, before making the election, a member of PSS 3 by virtue of section 7F, the member will be taken for the purposes of this Act to be a member of PSS 3 by virtue of both section 7F and this section. (3) The following provisions apply in connection with the operation of subsection (1): (a) Part 3 Division 3 and section 14C(1) will not apply to a PSS 1 or PSS 2 member who is a PSS 3 member by virtue of this section; (b) a PSS 1 or PSS 2 member who is a PSS 3 member by virtue of this section will not be entitled to either of the following under Part 4 Division 2A: (i) a member‑funded component of benefits; (ii) an invalidity/death insurance benefit; (c) the Governor may, by regulation, make any other provision as the Governor thinks fit, including by providing that other provisions of this Act do not apply to a PSS 1 or PSS 2 member who is a PSS 3 member by virtue of this section, or apply to such a member subject to any modifications prescribed by the regulations.