Part 6Miscellaneous

Part 6—Miscellaneous 43B—Exclusion of benefits under awards etc (1) A person who employs a contributor in employment to which this Act applies cannot be required by or under the Fair Work Act 1994 or by an award, enterprise agreement or contract of employment to make a payment or payments— (a) in the nature of superannuation; or (b) to a superannuation fund, for the benefit of the contributor or for the benefit of some other person in respect of the contributor. (2) An award cannot be made or varied under the Fair Work Act 1994 under which a person who employs, or has employed, a contributor is required to make a payment or payments in respect of a period of employment to which this Act applies occurring before 1 July 1992— (a) in the nature of superannuation; or (b) to a superannuation fund, for the benefit of the contributor or for the benefit of some other person in respect of the contributor. 44—Review of Board's decisions (1) A person who is dissatisfied with a decision of the Board under this Act may seek a review of the decision by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 or the Board. (2) An application for review may be made to the Tribunal or the Board (as the case may be) within 3 months after the person receives notice of the decision. (4) On a review by the Board, the Board may substitute another decision for its original decision or confirm its original decision. 45—Effect of workers compensation etc on pension (1) If at any time during a financial year a contributor who is receiving, or would, but for this subsection, be entitled to receive, a pension under another provision of this Act is also receiving or entitled to receive— (a) weekly payments of workers compensation; or (b) in the case of a relevant contributor—income from remunerative activities engaged in by the contributor, the following provisions apply: (c) the pension will be reduced by the amount of the workers compensation payments and if those payments equal or exceed the amount of the pension, the pension will be suspended; (d) if the contributor is a relevant contributor— (i) the Board must estimate the income (if any) that the contributor is likely to receive during the financial year from remunerative activities engaged in by the contributor; and (ii) it must be assumed that the income estimated by the Board will be paid at a uniform rate throughout the financial year; (f) if the aggregate of the pension and the workers compensation payments (if any) and, if the contributor is a relevant contributor, the income from remunerative activities (if any) (paid at the rate assumed, by paragraph (d)(ii)) exceeds the contributor's notional salary, the pension will be reduced by the amount of the excess and, if that amount equals or exceeds the amount of the pension, the pension will be suspended; (g) at the end of the financial year the Board must, if the contributor is a relevant contributor, determine the income from remunerative activities actually received by the contributor during that year and if, on the basis of the income actually received— (i) the pension has been underpaid, an amount equivalent to the underpayment must be paid to the contributor or if the contributor has died, to his or her estate; (ii) the pension has been overpaid, the amount overpaid may be deducted from future payments of pension or from any other amount to be paid to the contributor under this Act or, if the contributor has died, the amount overpaid is a debt due by the contributor's estate to the Treasurer. (1aa) Subsection (1) does not apply in relation to a pension that constitutes a draw down benefit under section 33A. (1a) Income of a kind referred to in subsection (1)(a) and (b) will— (a) in the case of workers compensation payments—be taken to include payments lawfully made to some person other than the contributor; (b) in the case of income from remunerative activities—be taken to include— (i) the monetary value of income that is in a non-monetary form; and (ii) income lawfully paid to some person other than the contributor. (2) If— (a) the spouse of a deceased contributor is receiving or would, but for this subsection, be entitled to receive, a pension under this Act; and (b) the spouse is also receiving, or entitled to receive weekly workers compensation payments in consequence of the contributor's death, the following provisions apply— (c) if the weekly workers compensation payments equal or exceed the amount of the pension, the pension will be suspended; (d) in any other case, the pension will be reduced so that the aggregate equals the pension that the spouse would have received if there had been no entitlement to workers compensation. (3) If an eligible child of a deceased contributor is receiving or entitled to receive weekly workers compensation payments in consequence of the contributor's death, the following provisions apply— (a) if the weekly workers compensation payments equal or exceed the amount of the pension, the pension will be suspended; (b) in any other case, the pension will be reduced so that the aggregate equals the pension that the child would have received if there had been no entitlement to workers compensation. (4) If a right to weekly workers compensation payments has been surrendered in whole or in part by commutation or by agreement, the person who would have been entitled to those payments if the right to them had not been surrendered will be taken, for the purposes of this section, to be receiving them unless— (a) if the person is a contributor—the contributor has reached the age of retirement; or (b) if the person is the spouse of a deceased contributor—the contributor would have reached the age of retirement if he or she were still alive. (5) If a contributor whose pension is subject to suspension or reduction under this section dies, the suspension or reduction will be ignored in calculating any pension that becomes payable on the contributor's death to a spouse or eligible child of the contributor. (6) If part of a retrenchment pension has been commuted— (a) the amount of the pension for the purposes of subsection (1)(f) will be the amount of the pension that the contributor would have been receiving if part of it had not been commuted; and (b) the amount (if any) by which the pension is to be reduced under subsection (1)(f) must be deducted from the part of the pension that has not been commuted. relevant contributor means a contributor— (a) who has not reached the age of retirement; and (b) whose entitlement to receive a pension under another provision of this Act does not relate to a pension granted on the basis of his or her age. 46—Division of benefit where deceased contributor is survived by lawful and putative spouses (1) If a deceased contributor is survived by a lawful spouse and a putative spouse, any benefit to which a surviving spouse is entitled under this Act will be divided between them in a ratio determined by reference to the relative length of the periods for which each of them cohabited with the deceased as his or her spouse. (2) If a number of periods of cohabitation are to be aggregated for the purpose of determining an aggregate period of cohabitation for the purpose of subsection (1), any separate period of cohabitation of less than 3 months will be disregarded. (3) A surviving spouse must, at the request of the Board, furnish it with any information that it requires for the purposes of making a division under subsection (1). (4) A putative spouse is not entitled to any benefit under this section, unless the deceased contributor and that spouse were putative spouses as at the date of the contributor's death. (5) If— (a) a deceased contributor is survived by a lawful and a putative spouse; (b) a benefit is paid to 1 of them on the assumption that he or she is the sole surviving spouse of the deceased, the other spouse has no claim on the benefit insofar as it has been already paid unless that spouse gave the Board notice of his or her claim before the date of the payment. 47—Adjustment of pensions (1) If a pension is expressed to be indexed, the Board must adjust the amount of the pension from the first payment of pension in each adjustment period to reflect— (a) in the case of an April adjustment period—the percentage variation (rounded to 2 decimal places) between the Consumer Price Index for the immediately preceding December quarter and the Consumer Price Index for the immediately preceding June quarter; and (b) in the case of an October adjustment period—the percentage variation (rounded to 2 decimal places) between the Consumer Price Index for the immediately preceding June quarter and the Consumer Price Index for the immediately preceding December quarter. (2) If on the first day of the relevant adjustment period, the pension has been payable for a period of less than 6 months, the extent of the adjustment will be reduced to reflect the proportion which the period of payment of the pension bears to 6 months. (3) If the pension was partially commuted to a lump sum under the repealed Act and no further commutation has occurred under this Act, the variation will be based on the amount of the pension that would have been payable if the commutation had not occurred rather than on the actual pension. (4) To avoid a reduction in pensions the Treasurer may direct that subsection (1) does not apply in relation to a particular adjustment period. (5) In that event an adjustment in the next adjustment period in relation to which subsection (1) applies will be based on the variation between the Consumer Price Index for the June or December quarter (whichever is applicable) immediately preceding that period and the Consumer Price Index for the June or December quarter (whichever is applicable) immediately preceding the adjustment period in relation to which subsection (1) last applied. (6) In this section— adjustment period means the period of 6 months commencing at the commencement of 1 April and 1 October in each year; April adjustment period means an adjustment period commencing at the commencement of 1 April in any year; October adjustment period means an adjustment period commencing at the commencement of 1 October in any year. 47A—Subsequent roll over of benefits to another fund or scheme A contributor who is entitled to benefits in the form of a lump sum that is preserved under this Act may, at any time before reaching the age of 55 years, require the Board to pay those benefits to some other superannuation fund or scheme approved by the Board. 47B—Roll over of benefits from another fund or scheme The Board may, on such terms and conditions as it thinks fit, accept the payment of benefits on behalf of a contributor from another superannuation fund or scheme. 47C—Portion of pension etc to be charged against contribution account etc (1) A proportion of a pension or lump sum under Part 5 paid to, or in relation to, a contributor will be charged against the contributor's contribution account or, if the account has been closed, will be charged against the relevant division of the Fund. (2) The proportion for the purposes of subsection (1) will be equivalent to the proportion of the future benefits payable under Part 5 that can, in the opinion of the Board, be met from the Fund. (3) The opinion of the Board must be based on the most recent triennial report under section 21(4). 47D—Charge against Fund if draw down benefit paid If a contributor becomes entitled to a draw down benefit under section 26A or 33A— (a) when the draw down benefit is paid under section 26A—there will be a charge on the relevant division of the Fund equal to the amount charged to the contributor's contribution account and, if relevant, any roll over account, on account of the payment of the draw down benefit; (b) when the draw down benefit is paid under section 33A—there will be a charge on the relevant division of the Fund determined by applying the same proportion that applies under section 47C(2) with respect to the payment of a pension. 48—Repayment of contribution account balance and minimum benefits (a) a contributor's employment has terminated or has been terminated; and (b) no pension has been paid under this Act to or in relation to the contributor following termination of the employment; and (c) no benefit is payable (either immediately or prospectively) under any other provision of this Act, an amount equivalent to the balance standing to the contributor's contribution account will be paid to the contributor or the contributor's estate (and charged against that account). (2) If— (a) a contributor's employment terminates or is terminated; and (b) either immediately or after a period of preservation of the contributor's benefits— (i) a pension is paid under this Act to the contributor; or (ii) a pension is paid under this Act to the contributor and then, on the contributor's death, a pension is paid under this Act to the spouse of the contributor; or (iii) the contributor's employment is terminated by death and a pension is paid under this Act to the spouse of the contributor; or (iv) the contributor dies after a period of preservation before receiving a pension and a pension is paid under this Act to his or her spouse; and (c) the pension, or the last of the pensions to be payable, ceases before the expiration of the period of 4.5 years after the pension, or the first of the pensions, commenced and no actual or prospective right to a pension exists and no other benefit is payable under this Act, an amount determined in accordance with subsection (2a) is payable to the contributor's estate. (2a) The amount referred to in subsection (2) is the amount of the pension or pensions that would have been payable to, or in relation to, the contributor during the period referred to in subsection (2)(c) if the pension or pensions had not ceased, reduced by— (a) the amount of the lump sum, or the aggregate of the lump sums, (if any) paid on commutation of the pension or pensions; and (b) the amount of the pension or pensions actually paid to, or in relation to, the contributor. (2b) When computing the amount of the pension or pensions that would have been payable during the period referred to in subsection (2)(c)— (a) it will be assumed that the pension or pensions were not reduced by commutation or reduced or suspended under section 45; and (b) the provisions of this Act for indexation of pensions will be ignored. (a) a contributor's employment terminates or is terminated; and (b) a pension becomes payable under this Act to or in relation to the contributor; and (c) the amount standing to the credit of the contributor's contribution account exceeds what would have been the balance of the account if the contributor had contributed throughout his or her contribution period at the standard contribution rate, the amount of the excess will be paid to the contributor or the contributor's estate (as the case requires). 49—Special provision for payment in case of infancy or death (1) If a pension or monetary sum is payable under this Act to a child, the Board may, in its discretion, pay it— (a) to the child; or (b) to a parent, guardian or trustee on behalf of the child. (2) If a person to whom money is payable under this Act dies, the Board may, in its discretion, pay the money to— (a) the personal representative of the deceased; or (b) the spouse of the deceased; or (c) the children of the deceased. 50—Pension not to be assignable (1) A right to a pension under this Act cannot be assigned. (2) This section does not prevent the making of a garnishee order in relation to a pension. 50A—Unclaimed superannuation benefits (1) If an amount of the Fund is attributable to an unclaimed superannuation benefit of a contributor, the Treasurer may, in accordance with the Superannuation (Unclaimed Money and Lost Members) Act 1999 of the Commonwealth, pay an amount equal to the unpaid superannuation benefit, or any amount required to be paid under that Act on account of the unclaimed superannuation benefit, from the Consolidated Account to the Commissioner of Taxation. (2) The Treasurer must reimburse the Consolidated Account by charging the Fund with an amount equal to— (a) the balance of the contributor's contribution account; and (b) the balance (if any) of the contributor's co‑contribution account; and (c) the balance (if any) of the contributor's rollover account. (3) The Board must then close all accounts maintained by the Board in the name of the contributor, after which— (a) he or she will cease to be a contributor; and (b) his or her rights in relation to superannuation under this Act will be taken to have been exhausted and no derivative rights will exist in relation to him or her under this Act. 51—Liabilities may be set off against benefits Any liability of a contributor arising under this Act or the repealed Act may be set off against any payment that is to be made to or in relation to the contributor under this Act. 51A—Method of making contributions (1) Contributions to be made to the Treasurer by a contributor under section 23 are to be deducted from the contributor's salary and paid to the Treasurer. (2) A contributor cannot make any contribution to the Scheme in addition to the contributions he or she makes under section 23. 52—Annuities (1) The Board may, with the Minister's approval, provide annuities on terms and conditions fixed by the Board. (2) The Board can only undertake to provide an annuity— (a) to, or in relation to, a contributor; or (b) to, or in relation to, a person who is, or has been, a member of some other public sector superannuation scheme. 53—Continuation of the Voluntary Savings Account (1) The Board may continue to maintain the Voluntary Savings Account for the benefit of contributors and such other persons as the Board determines. (2) The terms on which money is accepted on deposit in the Voluntary Savings Account will be as determined by the Board from time to time. (3) The cost of administering the Voluntary Savings Account will be paid from the income of that account. 54—Power to obtain information (1) The Board may, from time to time, require an employing authority, workers compensation authority, employee, contributor or pensioner to supply the Board with any information that it reasonably requires for the purposes of this Act. (2) The Board may require an employee, contributor or pensioner to verify information supplied under this section by statutory declaration. (3) If a pensioner fails to comply with a requirement under this section, the Board may suspend payment of the pension until the requirement is complied with. (4) A person who— (a) fails to comply with a requirement under subsection (1); or (b) supplies information in response to such a requirement that is false or misleading in a material particular, is guilty of an offence. (5) If a contributor commits an offence against subsection (4), the Board may expel the contributor from membership of the Scheme and, in that event— (a) the amount standing to the credit of the former contributor's contribution account will be repaid to the contributor; and (b) no further benefit will be payable under this Act to or in relation to the former contributor. (6) For the purposes of any other Act or law, a workers compensation authority will be taken, when acting under this section, to be disclosing information in the course of official duties. workers compensation authority includes any person or authority with power to determine or manage claims for workers compensation. 55—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 of a personal or private nature, or information as to the entitlements or benefits of any person under this Act (including under an administered scheme under Schedule 3) 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 that person's employer or employing authority; or (d) to any other person for purposes related to the administration of this Act or, if relevant, an administered scheme under Schedule 3; or (e) as may be required by a court or the Tribunal; or (f) if relevant, as may be allowed under the rules of an administered scheme under Schedule 3. (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. (2) This section does not prevent the disclosure of statistical or other information related to a class or classes of persons (rather than to an individual). 56—Resolution of difficulties (1) If, in the opinion of the Board, any doubt or difficulty arises in the application of this Act to particular circumstances or the provisions of this Act do not address particular circumstances that have arisen, the Board may give such directions as are reasonably necessary to resolve the doubt or difficulty or to address the circumstances (but only insofar as the Board determines it to be fair and reasonable in the circumstances) and any such direction will have effect according to its terms. (2) If, in the opinion of the Board— (a) a time limit under this Act should be extended in particular circumstances; or (b) a procedural step under this Act should be waived in particular circumstances, the Board may extend the time limit (even if it has already expired) or waive compliance with the procedural step. (3) In determining whether to take action under subsection (2), the Board should have regard to— (a) in a case under subsection (2)(a)— (i) the length of delay that has occurred; and (ii) the explanation for the delay; and (iii) any hardship that will occur if the time limit is not extended; and (iv) the extent to which it will cause any unfairness if the time limit is not extended; and (v) any other relevant factor; (b) in a case under subsection (2)(b)— (i) the conduct of the person who would benefit from the action; and (ii) any hardship that will occur if the procedural step is not waived; and (iii) the extent to which it will cause any unfairness if the procedural step is not waived; and (iv) any other relevant factor. (4) Subsections (2) and (3) do not derogate from any other provision of this Act or the regulations that makes specific provision for the extension of time. 58—Pensions payable in foreign currency (a) a lump sum or pension becomes payable to or in relation to a contributor; (b) the contributor was immediately before the lump sum or pension became payable, employed outside Australia and paid a salary in a currency other than Australian currency, the lump sum or pension will be paid in that other currency. (2) An indexed pension that is paid in some currency other than Australian currency may be indexed on some basis that the Board considers reasonable instead of by reference to the Consumer Price Index. 58A—Rounding off of contributions and benefits The Board may round off the amount of contributions and benefits under this Act to the nearest multiple of 5 cents. 59—Regulations (1) The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act. (1a) In particular a regulation may— (aa) set out the procedures for the election of a member of the Board (including procedures that determine eligibility to vote in the election); (a) prescribe the salary, or an amount to be taken to be the salary, of a contributor for the purpose of determining contributions or benefits in relation to the contributor notwithstanding any provision to the contrary in this Act; (b) if a contributor was previously a contributor to another superannuation scheme and money is paid in respect of the contributor from that other scheme to the scheme established by this Act—modify the provisions of this Act in their application to the contributor in order to comply with conditions under which the payment is made; (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; (d) without limiting a preceding paragraph, provide that a specified provision of this Act does not apply in prescribed circumstances, subject to any condition to which the regulation is expressed to be subject. (2) A regulation may impose a penalty, not exceeding $2 000, for breach of or non-compliance with a provision of the regulations. (3) Regulations under this Act may— (a) be of general application or limited application; or (b) make different provision according to the matters or circumstances to which they are expressed to apply.