State Superannuation Act 2000

In ForceWA

Jurisdiction

Western Australia

Collection

act

Plain English Summary

7/10 complexity

What this law does, in plain language

Establishes and runs a Crown superannuation system for people who work or used to work for Western Australian public-sector Employers. It creates:
- a statutory Board (the Government Employees Superannuation Board) to manage the schemes and a Fund (the Government Employees Superannuation Fund) to receive contributions and pay benefits (ss. 5, 14–15);
- rules about who must pay contributions, where contributions are paid, and how the Fund is used to pay benefits (Part 2A and Part 3).

Key administrative and financial mechanics

Employer contribution duty: Employers must make contributions so they avoid a ‘‘superannuation guarantee shortfall’’ for employees and must pay to an employee’s chosen fund or, if none, to a prescribed default fund (Part 2A: ss. 4A–4B). Regulations can require Employers to make contributions beyond that minimum (s. 4C).
Board powers and duties: The Board manages the Fund and administers schemes, may select external administrators, provide services to members and Employers, and must, so far as practicable, act in the best interests of Members and ensure equity between Members and between schemes (ss. 6, 6(2), 7). It keeps accounting records and commissions actuarial investigations periodically (ss. 16–17).
Investment and finance: The Board may invest Fund assets in Treasurer‑approved forms, must adopt and periodically review an investment strategy consistent with Treasurer’s guidelines, may appoint investment managers and may borrow only for limited purposes with Treasurer approval (ss. 18–19, 23–24). The Board may maintain reserves and must formulate a reserving strategy (s. 20A). The Board may not make loans to Members (s. 21).

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Deep Dive

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What it does

The State Superannuation Act 2000 (WA) provides the statutory framework for superannuation contributions and superannuation schemes for current and former public sector workers in Western Australia. It establishes the Government Employees Superannuation Board (the Board) as a body corporate and Crown agency (s 5) and the Government Employees Superannuation Fund (the Fund) as the central pool into which contributions are paid and from which benefits are disbursed (s 14). The Act confers on the Board functions including assisting the Treasurer, managing the Fund, administering superannuation schemes, providing information and advice to the Treasurer and to Members, and selecting and monitoring external administrators (s 6(1)). The Board holds assets for the Fund, formulates an investment strategy under s 19 and a reserving strategy under s 20A, and invests Fund assets in accordance with Treasurer’s guidelines and approvals (s 18). The Act also imposes an obligation on Employers to make superannuation contributions sufficient to avoid incurring an individual superannuation guarantee shortfall for any of their employees (s 4B(1)). Those contributions must be paid to a chosen fund or, if none exists, to the default fund prescribed or approved under s 4A. The Governor may establish superannuation schemes by regulation (s 28), and four existing schemes (the 1993 scheme, the 1987 scheme, and two schemes from the Superannuation and Family Benefits Act 1938) became schemes under this Act on 17 February 2001 (s 29(1)). The Crown guarantees payment of every benefit payable under a scheme (s 31(1)), and the Consolidated Account is appropriated to meet contribution obligations (s 32). The Act provides for internal review of Board decisions, with a right to apply to the State Administrative Tribunal for certain scheme-related decisions (s 13). The Treasurer may issue guidelines and directions (ss 33, 35), and the Board must observe its strategic development plan and statement of corporate intent (s 33A, 33B). Part 2A, inserted in 2011, codifies the employer contribution obligation and aligns with the Commonwealth Superannuation Guarantee (Administration) Act 1992. The Act also allows non-government contributors to contribute for employees who are scheme members (s 37). The Act binds the Crown (s 4). Overall, it sets the governance, funding, and operational rules for WA public sector superannuation.

Current sections

Direct links to the current provisions in State Superannuation Act 2000.

Authorised Version

The authorised version of this legislation is published by the jurisdiction's legislation service. Follow the link below to read or download it from the official source.

View on official register

Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.

Who pays: Employers must make contributions to avoid a superannuation guarantee shortfall (s. 4B). The Crown provides a guarantee for scheme benefits and the Consolidated Account is available to meet guarantees and certain Crown contribution obligations (ss. 31–32). Regulations may require higher Employer contributions (s. 4C). Non‑government contributors may make contributions only with Treasurer approval and only for members of schemes (s. 37).
Who decides and where discretion sits: The Board decides fund management, investment strategy and administration in accordance with Treasurer’s guidelines (ss. 18–20A, 33). The Treasurer controls approvals for new Employer schemes (s. 30), must approve the Board forming or acquiring subsidiaries and approves subsidiary constitutions (ss. 7A–7B, Sch. 3), issues guidelines that the Board must follow (s. 33), and may give directions to the Board that the Board must implement (s. 35). The Governor appoints chair and Employer directors, on the Treasurer’s nomination for the chair (s. 8, Sch. 1).
Compliance burdens and implementation risk: Employers must follow SGA Act procedures to the extent required here (s. 4B(3)); Employers must follow Board or Treasurer directions about practices and procedures and may be required to reimburse the Board for costs where they fail to comply (s. 34). The Board must keep accounting records and commission triennial actuarial investigations (ss. 16–17). The Board may outsource administration and appoint external administrators, subject to Treasurer’s guidelines, which shifts operational risk to contractors but leaves oversight responsibilities with the Board (s. 6(1)(c), s. 33(2)(aa)). Procurement of services in connection with investments is expressly excluded from the Procurement Act 2020 (s. 18(4)), which changes the normal procurement compliance environment for those services.
Financial trade-offs and fiscal exposure: The Crown guarantee (s. 31) creates a route for taxpayer funding of scheme shortfalls; amounts paid under the guarantee are appropriated from the Consolidated Account (s. 31(2)). Regulations that would affect the Crown’s financial rights above a prescribed threshold require Treasurer approval (s. 38(5)).
Effects on private choice and market players: Employees may choose a fund under the Commonwealth Superannuation Guarantee rules; Employers must pay to the employee’s chosen fund or to a default fund where none is chosen (s. 4B(2)). The Board may provide products and services (s. 6(1)(e)) and may charge fees under contracts (s. 7(2)(b)–(c)), creating the possibility that the Board competes with private superannuation providers in some service areas (ss. 6, 7). The Board may receive contributions from non‑government contributors only with Treasurer approval and only for scheme members (s. 37), meaning private payers cannot unilaterally use the Fund for non‑member arrangements.

Main concepts

The Act revolves around several core concepts. The Board is the Government Employees Superannuation Board, a body corporate and Crown agency with perpetual succession (s 5). It is the same legal entity as the Board established under the earlier Government Employees Superannuation Act 1987 (GES Act). The Board comprises seven directors: one chairperson appointed by the Governor on nomination of the Treasurer after consulting unions (Sch 1 cl 1), three Employer directors appointed by the Governor, and three Member directors elected under regulations (s 8(1)). Directors serve part-time, with maximum service periods (Sch 1 cls 4, 4A, 5). The Board has power to do all things necessary or convenient for its functions (s 7(1)), including forming or acquiring a subsidiary with Treasurer approval (s 7A). The Fund is the Government Employees Superannuation Fund, a continuation of the fund under the GES Act (s 14(2)). It receives contributions, transfers from other funds, investment earnings, borrowed money, and other amounts (s 15(1)). Charges against the Fund include benefits, transfers to other funds, costs incurred by the Board, and expenditure on subsidiaries (s 15(2)). The term scheme means a superannuation scheme established or continued under this Act (s 3(1)). Four existing schemes were continued by s 29(1): the 1993 scheme, the 1987 scheme, and two schemes from the Superannuation and Family Benefits Act 1938. The Governor may establish new schemes by regulation (s 28). Employer is defined broadly to include the Crown, the Government of Western Australia, a Minister, or a prescribed authority, body or person (s 3(1)). A person who holds an office or position under a written law, or is appointed by the Governor, a Minister, an Employer, or an Employer’s worker, is taken to work for an Employer (s 3(2)). Member means a member of a scheme (s 3(1)). The Act distinguishes between a chosen fund and a default fund for employer contribution obligations under Part 2A. Chosen fund is defined by reference to the SGA Act Part 3A Division 4, while default fund is prescribed by regulation for non-exempt employees, or named by the Employer with Treasurer approval for exempt employees (s 4A). An exempt employee is one for whom an Employer makes superannuation contributions to a fund that is not a scheme under this Act, in accordance with s 30(1). A non-government contributor is a person other than an Employer who makes contributions for an employee (s 37(1)). The actuary is a fellow or accredited member of the Institute of Actuaries of Australia or another person approved by the Treasurer (s 3(1)). The Treasurer’s guidelines are written guidelines issued under s 33(2) on matters such as investment, borrowing, and allocation of earnings. The Act also creates subsidiary as a concept: a body determined under Corporations Act Part 1.2 Division 6 to be a subsidiary of the Board (s 3(1), (3)). The constitution of each subsidiary must contain provisions equivalent to those in Schedule 3 (s 7B(2)). The Act includes provisions for material interest disclosure in Schedule 2 clauses 9-12, which apply to directors and committee members.

Who it affects

The Act primarily affects three categories of persons. First, Employers: these are the Crown, the Government of Western Australia, a Minister, or any prescribed authority, body or person (s 3(1)). They are obliged under s 4B(1) to make superannuation contributions sufficient to avoid an individual superannuation guarantee shortfall for any of their employees. They must pay those contributions to a chosen fund or the default fund (s 4B(2)). Employers may also establish their own superannuation schemes or funds, but only with the Treasurer’s approval (s 30(1)). They are subject to written directions from the Board or Treasurer about practices and procedures for efficient operation of the Act (s 34(1), (2)). If an Employer fails to comply, the Board may recover any resulting costs or expenses (s 34(3)). Employers must also comply with directions to deduct money owed to the Fund from a Member’s pay (s 26(2)). Second, Members: these are persons who are members of schemes under the Act. They include current and former public sector workers and their spouses or former spouses who are eligible to participate (s 28(2)). Members have rights to benefits guaranteed by the Crown (s 31(1)), and the Board must act in their best interests (s 6(2)(a)). Members may apply to the Board for internal review of a decision and, for certain schemes (those continued by s 29(1)(c) or (d)), may apply to the State Administrative Tribunal for further review (s 13). Members may also agree to a reduction in benefits under s 38(4)(b) or (5A)(c). Members are prohibited from receiving loans or financial assistance from the Fund (s 21). Third, non-government contributors: these are persons, other than Employers, who make superannuation contributions for the benefit of an employee (s 37(1)). They may use the Board’s services only if the Board has the Treasurer’s written approval and the employee is a member of a scheme (s 37(2), (4)). Contributions made by non-government contributors cannot be credited to accounts kept for the schemes continued by s 29 (s 37(5)). The Act also affects the Board itself, its directors and staff, investment managers, external administrators, and subsidiaries of the Board. Directors enjoy protection from personal liability when acting in good faith in performing functions under the Act (s 9(1)). The Crown is ultimately liable for the Board’s actions (s 9(3)). The Treasurer interacts with the Act by giving approvals, issuing guidelines, giving directions, and accessing information (ss 33-36).

Key duties and rights

The Act imposes several key duties. The Board must assist the Treasurer in administration (s 6(1)(a)), manage the Fund, administer schemes (or select and monitor external administrators), provide information to Members and Employers, and act in the best interests of Members while ensuring equity between schemes and between Members (s 6(2)). In investing Fund assets, the Board must formulate an investment strategy consistent with Treasurer’s guidelines (s 19(1), (2A)), have regard to factors including care and prudence, nature and risks of investments, diversification, liquidity, cash flow requirements, and liabilities (s 19(2)), and act in accordance with the strategy and guidelines (s 19(4)). The Board must also formulate a reserving strategy consistent with its capacity to discharge liabilities and any Treasurer’s guidelines (s 20A(2), (3)). The Board must keep accounting and other appropriate records (s 16(1)). It must cause actuarial investigations at least every three years (s 17(1)), and ensure they are done according to Treasurer’s guidelines (s 17(3)). The Board cannot borrow money unless for a cash flow problem in benefit payments or a Treasurer-approved purpose, and must comply with Treasurer’s guidelines (s 24(1)). The Board must not use Fund assets to make loans or give financial assistance to a Member (s 21). The Board must allocate investment earnings and costs between schemes and Members, ensuring compliance with guidelines and equity (s 22). The Board is also required to observe its strategic development plan and statement of corporate intent (s 33A). Employers have a duty under s 4B(1) to make contributions to avoid an individual superannuation guarantee shortfall for each employee. They must pay contributions to the chosen fund or default fund (s 4B(2)) and must comply with SGA Act Part 3A Division 6 requirements even if not required by that Act (s 4B(3)). Employers must comply with written directions from the Board or Treasurer about practices and procedures (s 34(2)) and with directions to deduct money owed to the Fund from a Member’s pay (s 26(2)). The Treasurer has duties: to approve employer schemes (s 30(1)), to issue guidelines after consulting the Board (s 33(2)), to publish guidelines on a department website (s 33(4A)), to consult with unions before nominating the chairperson (Sch 1 cl 1(1)) and before appointing a person to fill a casual vacancy for a Member director (Sch 1 cl 6(4)), and to lay directions before Parliament (s 35(7)). The Treasurer may also give directions to the Board, which the Board must give effect to, subject to certain delay provisions and the Statutory Corporations (Liability of Directors) Act 1996 (s 35). Members have rights: to receive benefits (guaranteed by the Crown under s 31(1)), to be provided with information about their rights and entitlements so far as practicable (s 6(1)(ea)), to apply for internal review of Board decisions (s 13(1)), and for certain schemes, to apply to the State Administrative Tribunal (s 13(3)(a)). Members may also agree to benefit reductions (s 38(4)(b), (5A)(c)). Directors have rights to remuneration and allowances determined by the Treasurer on the recommendation of the Public Sector Commissioner (Sch 1 cl 7). They also have protections from personal liability when acting in good faith (s 9(1)).

Penalties and enforcement

The Act does not create criminal offences for non-compliance by Employers or Members. Instead, enforcement is primarily through civil mechanisms and administrative directions. If an Employer fails to comply with a written direction from the Board or Treasurer regarding practices and procedures, the Board may recover from the Employer any costs or expenses incurred as a result of that failure (s 34(3)). This operates as a civil debt recovery. For money owed to the Fund, the Board has several enforcement options under s 26: it may recover the amount as a debt in a court of competent jurisdiction (s 26(1)(a)), deduct the amount from any amount payable from the Fund to the debtor (s 26(1)(b)), enter into an arrangement for satisfaction of the debt if the debtor is an Employer (s 26(1)(c)), or if the debtor is a Member, direct the Member’s Employer to deduct the amount from the Member’s pay in instalments and pay it to the Fund (s 26(1)(d), (2)). The Employer must comply with such a direction (s 26(2)). Interest accrues on money owing to the Fund at a rate, manner and period determined by the Board (s 25(1)), and that interest may be recovered in the same way (s 25(2)). For breach of the employer contribution obligation under s 4B, the primary consequence is that the Employer becomes liable to pay the superannuation guarantee charge under Commonwealth law if an individual superannuation guarantee shortfall arises. Section 4B(4) provides that if an Employer becomes liable for the superannuation guarantee charge as a result of incurring a shortfall for an employee for a period, the Employer has no further obligation under subsection (1) to make contributions for that employee for that period. This means the Commonwealth charge effectively substitutes for the state obligation. There is no state penalty for the shortfall beyond the charge. For directors and committee members, a contravention of the material interest disclosure and voting rules in Schedule 2 clauses 10 and 11 does not invalidate a decision of the Board or committee (Sch 2 cl 10(4)), but it may ground removal from office by the Treasurer if the director is found to have contravened those clauses (Sch 1 cl 6(2)(d)). The Treasurer may remove a director for neglect of duty, misbehaviour, incompetence, contravention of those clauses, mental or physical incapacity, absenteeism, or conviction for dishonest conduct (Sch 1 cl 6(2)). The Board’s investment decisions are protected: in an action against the Crown or Board for loss from an investment, it is a defence to prove the investment was made in accordance with the investment strategy under s 19(1) (s 9(4)). This effectively limits liability if the strategy is followed. The Board cannot be forced to act if it lacks quorum due to material interest disqualifications; the Treasurer may then deal with the matter (Sch 2 cl 11(2)). There are no express monetary penalties or imprisonment provisions in the Act.

How it interacts with other laws

The Act interacts with Commonwealth legislation, state legislation, and prior acts. It references the Superannuation Guarantee (Administration) Act 1992 (Commonwealth) (SGA Act) directly. The definition of fund in Part 2A uses the SGA Act meaning (s 4A(1)). The employer contribution obligation under s 4B is tied to avoiding an individual superannuation guarantee shortfall as defined in SGA Act s 19. Employers must comply with SGA Act Part 3A Division 6 requirements even if not required by that Act (s 4B(3)). This means the state Act imports Commonwealth rules about choice of fund. The Corporations Act 2001 (Commonwealth) is also referenced: it is used to determine whether a body is a subsidiary of the Board (s 3(3)), and the Act declares certain provisions to be Corporations legislation displacement provisions under s 5G of the Corporations Act (s 7B(6)). This means the state provisions override the Corporations Act in relation to the constitution and governance of subsidiaries. The Act also interacts with the Statutory Corporations (Liability of Directors) Act 1996 (WA). The protection from personal liability for directors in s 9 is expressly subject to that Act. The Treasurer’s directions under s 35 are subject to that Act, and directions governed by a notice under s 17 of that Act have delayed effectiveness (s 35(5)). The Act interacts with the Administration Act 1903 (WA). Section 40 provides that the provisions of this Act and regulations dealing with payment of benefits under a scheme prevail over section 10 of the Administration Act 1903 to the extent of any inconsistency. This was inserted to override restrictions on payments to personal representatives. The Act also preserves the continuing application of certain provisions of the Superannuation and Family Benefits Act 1938 through the State Superannuation (Transitional and Consequential Provisions) Act 2000 s 26 (see note 1 in the compilation). The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 gave the SAT jurisdiction to review certain decisions under s 13(3)(a) for schemes continued by s 29(1)(c) or (d). The Financial Management Act 2006 (WA) is referenced in relation to annual reporting: the text of a direction from the Treasurer must be included in the annual report submitted by the accountable authority of the Board under Part 5 of that Act (s 35(8)), and similarly for declarations under Sch 2 cl 12(4). The Procurement Act 2020 is excluded from applying to procurement of services connected with the Board’s investment functions under s 18 (s 18(4)). The Act also provides that its provisions prevail over any other written law in relation to establishment of employer schemes (s 30(4)), and over the constitution of any subsidiary (s 7B(4)). The Treasurer’s guidelines are not subsidiary legislation under the Interpretation Act 1984 (s 33(3)). The Act also interacts with the Parliamentary Superannuation Act 1970, allowing spouses of persons entitled to benefits under that Act to participate in schemes (s 28(2)(b)). The Act was amended by the State Superannuation Amendment Act 2024 which inserted new Part 7 providing savings and transitional provisions, including for default funds (s 41) and director term limits (s 42), and validated existing regulations (s 43).

Amendment history

The Act was originally enacted as No. 42 of 2000, assented to 2 November 2000, and commenced on 17 February 2001 (except sections 1 and 2). It has been amended multiple times. Key amendments: The Corporations (Consequential Amendments) Act 2001 (No. 10 of 2001) made minor amendments to Schedule 1 clause 6. The Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (No. 3 of 2002) amended s 28 to include de facto partners in the definition of spouse. The Corporations (Consequential Amendments) Act (No. 3) 2003 (No. 21 of 2003) amended Schedule 2 clause 9 regarding material interests. The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (No. 55 of 2004) amended s 13 to give SAT jurisdiction and amended s 38. The Superannuation Legislation Amendment and Validation Act 2006 (No. 18 of 2006) was a major amendment: it inserted s 4E (later deleted), s 7A (subsidiary formation), s 7B (subsidiary constitution), s 15(2)(ba) (expenditure on subsidiaries), s 28 (scheme establishment), s 36 (access to information), s 36A (later renumbered and amended), s 40 (override of Administration Act), and Schedule 3 (subsidiary provisions). It also amended s 6, 15, 28, 33, 36, 38, and 39. The Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006) inserted s 33A (Board to observe policy instruments) and s 33B (strategic development plan and statement of corporate intent). The Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006) made consequential amendments to ss 31, 32, and 35, and Schedule 2 clause 12. The State Superannuation Amendment Act 2007 (No. 25 of 2007) was a significant amendment affecting many provisions: it amended ss 3, 6, 7B, 8, 9, 10, 13, 14, 15, 18, 19, 22, 24, 25, 26, 28, 29, 31, 32, 34, 35, 36, 38, 39, 40, and Schedules 1 and 2. It also deleted former s 33C. The Public Sector Reform Act 2010 (No. 39 of 2010) amended Schedule 1 clause 7 regarding remuneration. The State Superannuation Amendment Act 2011 (No. 35 of 2011) was a major restructuring act: it inserted Part 2A (employer contribution obligation), renumbered and reorganized Parts, added new headings, inserted s 20A (reserves), s 22 (allocation of earnings and costs), s 36A (laying documents before Parliament), s 37 (non-government contributors, later replaced), amended s 38 extensively including new subsections (5A)-(5F) (later partly deleted), and made numerous consequential amendments. The Statutes (Repeals and Minor Amendments) Act 2011 (No. 47 of 2011) made a minor amendment. The Statutes (Repeals and Minor Amendments) Act 2014 (No. 17 of 2014) amended s 30. The Unclaimed Money (Superannuation and RSA Providers) Amendment and Expiry Act 2014 (No. 22 of 2014) amended s 38. The most recent and significant amendment is the State Superannuation Amendment Act 2024 (No. 50 of 2024), assented to 6 December 2024. Most provisions of that Act (ss 3, 4, 5(1) and (3), 9-27) commenced on 17 April 2025. This amendment replaced the former s 37 (non-government contributors) with a new version, inserted new Part 7 (savings and transitional provisions) with ss 41-43, amended Schedules 1 and 2 regarding director terms, maximum periods of service, acting directors, and material interest definitions, and amended ss 3, 4A, 6, 18, 23, 24, 27 (deleted), 28, 30, 33, 38, and 39. Sections 5(2) and 6-8 of the 2024 Act remain uncommenced as of the compilation date.

Gotchas

Several provisions in the Act may trap unwary readers. First, the prohibition on loans to Members in s 21 is absolute: the Board must not use Fund assets to make a loan or give financial assistance to a Member. This applies to all Members regardless of circumstances. Second, the employer contribution obligation in s 4B(1) is framed as a duty to avoid an individual superannuation guarantee shortfall, not simply to pay a minimum percentage. This means Employers must comply with the choice of fund requirements of the SGA Act, including lodging paperwork for employee choices. Section 4B(3) requires compliance with Part 3A Division 6 of the SGA Act even if the Act does not otherwise apply, which can be a trap for employers who assume they only need to meet the charge percentage. Third, the borrowing power of the Board under s 24 is highly restricted: borrowing is only permitted for overcoming a cash flow problem in benefit payments or for a purpose approved by the Treasurer, with terms also approved and in accordance with Treasurer’s guidelines. The prohibition applies to re-borrowing or obtaining advances (s 24(3)). Fourth, the investment restrictions in s 20(1) and (3) limit the Board’s ability to invest in debt paper or securities of an Employer beyond a prescribed percentage of total cost. This is a concern for any restructuring where the Board might hold government bonds. Fifth, the material interest provisions in Schedule 2 clauses 9-12 are nuanced. A director does not have a material interest merely because they are a Member (cl 9(2)(a)) or work for an Employer (cl 9(2)(b)). But if they have a direct or indirect pecuniary interest beyond that, disclosure and non-participation are required. Clause 12 allows the Board to disapply the voting ban by resolution, but the interested director cannot be present or vote on that resolution. The Treasurer can also declare clause 11 inapplicable to a specified matter (cl 12(3)). Sixth, the protection from personal liability in s 9(1) is not absolute: it is subject to the Statutory Corporations (Liability of Directors) Act 1996, so directors may still be liable if that Act applies. Also, the defence in s 9(4) for investment losses only applies if the investment was in accordance with the investment strategy under s 19(1) - if the Board deviates from that strategy, the defence may be lost. Seventh, for non-government contributors, s 37(5) prohibits crediting contributions to accounts kept for the schemes continued by s 29. This means those contributions cannot be used for the defined benefit schemes; they must be kept in a separate account. Eighth, regulations cannot reduce benefits that accrued or became payable before the regulations came into operation, except with a Treasurer’s certificate that the change would be required or permitted under Commonwealth legislation, or with Member consent (s 38(3), (4)). For the schemes continued by s 29(1)(a)-(c), additional protections apply: an actuary must certify that the regulations will not reduce the multiplying factor or pension value factor below the 17 February 2001 level, unless Members agree (s 38(5A), (5B)). Ninth, the Treasurer’s guidelines under s 33(2) are not subsidiary legislation, meaning they are not subject to parliamentary scrutiny, but they must be published on the department’s website (s 33(4A)). If guidelines conflict with a direction under s 35, guidelines prevail (s 33(4)), which may be surprising. Tenth, the default fund provisions under Part 2A have a transitional rule: if contributions were being made to a fund approved under former s 30(2) immediately before the 2024 amendments commenced, the employee continues to be an exempt employee and that fund is the default fund until the Treasurer revokes approval (s 41). This means previous approvals continue to have effect.

How to comply

To comply with the Act, Employers should first ensure they meet the contribution obligation under s 4B(1) by making superannuation contributions sufficient to avoid an individual superannuation guarantee shortfall for each employee. This requires calculating contributions under the SGA Act rules, not simply paying a flat rate. Employers must pay contributions to the chosen fund for employees who have made a choice under SGA Act Part 3A Division 4, or to the default fund for employees without a choice (s 4B(2)). The default fund is either prescribed by regulation or, for exempt employees, named by the Employer with Treasurer approval (s 4A(1)). Employers must also comply with SGA Act Part 3A Division 6 requirements about offering choice, providing information to employees, and complying with directions from the Board or Treasurer under s 34. If an Employer becomes liable for the superannuation guarantee charge, no further state contribution is required for that period (s 4B(4)), but the Employer must still comply with other obligations. Employers should keep records of contributions and choice arrangements. For the Board, compliance involves numerous obligations. The Board must maintain the Fund, keep accounting records (s 16(1)), and cause actuarial investigations at least every three years (s 17(1)). It must formulate an investment strategy consistent with Treasurer’s guidelines and consider the factors in s 19(2). The strategy must be reviewed from time to time per guidelines (s 19(3)). The Board must also formulate a reserving strategy (s 20A(2)) consistent with its capacity to discharge liabilities and Treasurer’s guidelines, and review it periodically (s 20A(4)). All investment decisions must accord with the strategy and guidelines (s 19(4)). The Board must comply with the borrowing restrictions in s 24, the loan prohibition in s 21, and the investment limitation in s 20. It must allocate earnings and costs between schemes and Members in accordance with guidelines and equity (s 22). The Board must prepare a strategic development plan and statement of corporate intent at prescribed times and submit them to the Treasurer (s 33B(1)). It must observe those instruments (s 33A). The Board must ensure every subsidiary has a constitution consistent with Schedule 3 (s 7B(2)). It must comply with Treasurer’s directions (s 35(2)) and guidelines (s 33(4) gives guidelines precedence over directions). The Board must also provide information to Members about their rights and entitlements (s 6(1)(ea)), and act in the best interests of Members (s 6(2)(a)). For directors and committee members, compliance requires disclosing any material interest at a meeting as soon as the relevant facts are known (Sch 2 cl 10(1)), and not being present or voting on matters where they have a material interest unless the Board passes a resolution under cl 12(1) or the Treasurer issues a declaration under cl 12(3). Directors must also avoid the grounds for removal in Sch 1 cl 6(2). For Members, compliance is minimal: they must ensure they are aware of their choice of fund rights and may need to provide the Board with information for benefit calculations. Non-government contributors must obtain the Board’s service and only make contributions for employees who are scheme members (s 37(4)), and cannot contribute to the s 29 continued scheme accounts (s 37(5)). All parties should be aware that the Act binds the Crown (s 4), so government entities are not exempt.