Superannuation Funds Management Corporation of South Australia Regulations 2025

The primary entity is the “Corporation”, the Superannuation Funds Management Corporation of South Australia, which is responsible for investing funds including “public sector superannuation funds” and “nominated funds” of approved authorities. A “contributor” is a person who contributes to a superannuation fund managed by the Corporation. For voting purposes, regulation 6 defines the eligible contributor pool as those who were contributors on the last business day before the seven-day period immediately preceding the publication of the election notice. The “hour of nomination” is defined in regulation 3 as the hour by which the Electoral Commissioner must receive nominations. The “Electoral Commissioner” is the South Australian official who conducts the election under Part 2.

The election system uses preferential voting as defined in regulation 13: a form of instant-runoff where candidates with the fewest first preferences are successively excluded and their ballots transferred to the next preference of each voter, until one candidate remains. Voters mark preferences with consecutive numbers starting from 1, though a tick or cross is counted as a vote for that candidate only. Ballot papers are provided to contributors either by post or through their employer. Candidates may supply promotional material not exceeding 200 words and one photograph, provided it is submitted by the hour of nomination.

The concept of “public authority” under section 3(1) of the Act is given specific content by regulation 17, which names the Commissioner for Consumer Affairs, the Local Government Association of South Australia, and the University of Adelaide. These entities are brought within the statutory definition. “Prescribed public authority” is a separate and narrower category, defined by regulation 18, listing 11 entities including the Adelaide Cemeteries Authority, the Legal Services Commission, the Motor Accident Commission, the South Australian Government Financing Authority, and the Public Trustee. The distinction matters because the Act provides different rules for the treatment of funds belonging to prescribed public authorities compared with ordinary public authorities. The investment restrictions in regulation 16 apply to the “public sector superannuation funds or the nominated funds of an approved authority”. “Approved authority” is defined in the Act, but the regulations do not further expand that definition. Regulation 16 prohibits the Corporation from investing those funds in property outside Australia or real property outside South Australia without prior ministerial authorisation, and from entering into certain derivative contracts (forwards, futures, swaps, similar contracts) unless authorised by the Minister. Subregulation 16(3) contains an important interpretive rule: if a derivative transaction can be characterised as obtaining financial accommodation, it is taken to be authorised for the purposes of section 6(2) of the Act, removing the need for separate ministerial approval. The Minister may vary or revoke any authorisation given.

Transitional concepts include the grandfathering of authorisations under the repealed 2010 regulations and the continuation of declarations of prescribed public authorities. The term “lost member” is used in regulation 9 to exclude contributors defined as such under the Commonwealth Superannuation (Unclaimed Money and Lost Members) Act 1999, who are not entitled to receive ballot papers.

The regulations directly affect several distinct groups. First, contributors to the public sector superannuation funds managed by the Corporation: they gain the right to vote in elections for board members, but only if they meet the eligibility cutoff in regulation 6. Contributors who are “lost members” under federal law are excluded from receiving ballot papers and effectively disenfranchised for these elections. Employers of contributors are affected because regulation 9(4)(b) allows the Electoral Commissioner to give ballot papers and envelopes to employers for onward distribution to contributors. This imposes a practical obligation on employers to handle and forward electoral material in a timely manner.

Second, the Corporation itself is the primary subject of the investment restrictions in regulation 16. The Corporation must not invest in overseas property or certain derivative instruments without prior ministerial authorisation. This compliance obligation constrains the investment strategy of the Corporation and requires ongoing administrative engagement with the Minister for any cross-border property allocation or derivative hedging activity. The Corporation also must consult with the board when the Electoral Commissioner determines an election timetable (regulation 5(3)).

Third, the Minister holds the power to authorise, vary, or revoke authorisations for out-of-State investments and derivative transactions. The regulations create a gatekeeper role for the Minister over the Corporation’s investment activities, which may limit the speed at which the Corporation can respond to market opportunities.

Fourth, the Electoral Commissioner is tasked with conducting elections, including publishing timetables, receiving nominations, printing ballot papers, distributing electoral material, counting votes under a preferential system, and declaring results. The Commissioner may also determine the form of ballot papers, the order of candidate names by lot, and the method of distribution (post or employer). The Commissioner may permit scrutineers (other than candidates) to observe the count.

Fifth, the entities listed as public authorities (regulation 17) and prescribed public authorities (regulation 18) are affected because their status under the Act triggers specific rules about how the Corporation may invest their nominated funds. For example, prescribed public authorities likely have different rights or obligations concerning the pooling or management of their funds. The inclusion of the Local Government Association of South Australia and the University of Adelaide in both lists may create overlapping statutory treatment that those entities need to understand for compliance and governance purposes.

Sixth, candidates for election to the board are directly affected by the nomination rules (requiring three nominators) and the promotional material limits (200 words, one photo). They cannot serve as scrutineers.

Finally, any person wishing to challenge election outcomes, investment authorisations, or the status of a particular authority will be affected by the evidentiary rules in regulation 16(5), which states that a ministerial certificate is conclusive evidence of authorisation in legal proceedings.

The regulations impose both duties and rights across several parties. The Electoral Commissioner is under a duty to conduct elections in accordance with Part 2, including publishing an election timetable in a daily newspaper at least 14 days before the nomination deadline, fixing a return date for ballot papers no less than 21 days and no more than 28 days after they are posted or distributed, and consulting with the board on the timetable. The Commissioner must provide each eligible contributor (other than lost members) with a ballot paper and a return envelope, and must include any promotional material submitted by a candidate by the hour of nomination, subject to form and content limits. The Commissioner must count votes using the preferential exclusion rule and, in the event of a tie between two candidates, determine the winner by lot. The Commissioner must declare the result in the Gazette and in a newspaper or on a website.

Contributors have the right to vote if they are on the list provided by the superannuation board within seven days of the election notice. They have the right to nominate candidates, with each nomination requiring the signatures of at least three contributors. Voters must indicate their first preference by a number 1 (or a tick or cross, which is treated as a 1), and may express additional preferences by consecutive numbers. Voters must return the sealed signed envelope bearing the ballot paper; failing to sign, or returning multiple ballots, or returning ballots late results in rejection. Contributors are entitled to request that the Electoral Commissioner permit scrutineers to observe the counting, though the decision to permit scrutineers is at the Commissioner’s discretion.

Candidates have the right to submit promotional material of up to 200 words and one photograph, to be included with ballot papers. They cannot be scrutineers. The Electoral Commissioner may print the material in whatever form the Commissioner thinks fit.

The Corporation has the duty not to invest public sector superannuation funds or nominated funds in property outside Australia or real property outside South Australia, and not to enter into specified derivative contracts, unless the Minister has authorised the investment or class of investments. This is a negative duty; the Corporation can seek authorisation, and the Minister may give it specifically or by reference to a class. The Corporation also has the right to rely on the deeming provision in regulation 16(3): if a derivative contract can be characterised as obtaining financial accommodation, it is taken to be authorised for the purposes of section 6(2) of the Act, meaning the Corporation does not need separate approval. This is an interpretive right that may reduce compliance burden for certain hedging transactions.

The Minister has the duty to decide whether to authorise investments or dealings, and the right to vary or revoke any authorisation. The Minister’s certificate is conclusive evidence of authorisation.

Superannuation boards must provide a list of eligible contributors to the Electoral Commissioner within seven days of the election notice. This is a compliance duty imposed on the boards that manage the ACT’s superannuation schemes.

Employers to whom ballot papers are entrusted have a de facto duty to distribute them promptly to the relevant contributors, though the regulations do not specify a time limit for employer distribution.

Listed public authorities and prescribed public authorities arguably have an informational right to know their status under the regulations, but the regulations impose no active duties on them beyond the consequences that flow from that status under the Act.

The regulations themselves do not specify financial penalties, imprisonment terms, or infringement notice amounts for non-compliance. Penalties for breaches are likely found in the primary Act, the Superannuation Funds Management Corporation of South Australia Act 1995, or in other applicable laws such as the Electoral Act 1985 (SA) for voting irregularities or the Criminal Law Consolidation Act 1935 (SA) for fraud or forgery. The regulations rely on those external enforcement frameworks.

For investment restrictions, a breach of regulation 16 by the Corporation (e.g., investing in overseas property without ministerial authorisation) would likely constitute a contravention of the Act, which may attract civil penalties or director liability under the Act. The conclusive evidence rule in regulation 16(5) works in favour of the Corporation when it has obtained authorisation, but the flip side is that any investment entered into without a certificate could expose the Corporation to legal challenge or regulatory action. The Minister may also revoke authorisations, possibly leaving past investments in an uncertain legal position.

For election irregularities, no specific penalty is provided in these regulations. However, the regulations contain several mechanisms for rejecting improper votes: ballot papers returned in the same envelope are all rejected (regulation 12(2)), late returns are rejected (regulation 12(3)), and duplicate returns are rejected (regulation 12(1)). These serve as administrative rather than penal consequences. More serious conduct such as impersonating a contributor, forging a signature, or interfering with ballot papers would be prosecutable under general criminal law or the Electoral Act. The Electoral Commissioner may reject ballot papers that are not initialled if they are not on watermarked paper (regulation 9(3)), though this is a procedural safeguard rather than a penalty.

The superannuation boards are not directly penalised for failing to provide the list of contributors within seven days, but such failure could delay an election or lead to court action to compel compliance. Candidates or contributors who submit promotional material exceeding the word or photo limit may have that material excluded; the regulation gives the Commissioner discretion to print material “in such form as the Commissioner thinks fit”, which likely means non-compliant material can be omitted.

Overall, the enforcement of the regulations depends on the Act and other statutes. The regulations create legal duties but delegate punishment to existing law. This is typical for subordinate legislation that fills in procedural details rather than creating standalone offences.

These regulations are made under the Superannuation Funds Management Corporation of South Australia Act 1995 and must be read in conjunction with that Act. The Act defines key terms such as “public authority”, “prescribed public authority”, “approved authority”, “nominated funds”, and “public sector superannuation funds”. The regulations flesh out those definitions by listing entities in regulations 17 and 18. Regulation 18 also states it is “for the purposes of the definition of prescribed public authority in section 3(1) of the Act”, so any entity on that list is a prescribed public authority and any entity not on that list is not (unless covered by transitional provisions).

The election provisions in Part 2 interact with the Act’s provisions on board composition and terms, though the Act is not reproduced here. The regulations specify that the election is for “a member of the board” but do not detail how many members are elected by contributors compared with those appointed by other methods. The Electoral Commissioner’s role ties into the Electoral Act 1985 (SA), which governs the conduct of elections in South Australia and likely provides the Commissioner’s powers and the law for offences such as personation. The regulation refers to “a daily newspaper circulating throughout the State” and the “Gazette”, both of which are publication mechanisms defined by the Acts Interpretation Act 1915 (SA) and the Government Gazette Act 1985 (SA).

The investment restriction in regulation 16 interacts with Part 3 of the Act and likely with the Corporations Act 2001 (Cth) where the Corporation engages in derivatives or overseas investments that cross federal regulatory boundaries. The deeming provision in regulation 16(3) for “financial accommodation” interacts with section 6(2) of the Act, which imposes restrictions on the Corporation obtaining financial accommodation. By deeming certain derivatives to be authorised for that purpose, the regulations create a carve-out from the Act’s borrowing limits, subject to ministerial oversight.

The “lost member” exclusion in regulation 9 incorporates the Commonwealth Superannuation (Unclaimed Money and Lost Members) Act 1999, which creates a category of members whose whereabouts are unknown. The regulation effectively disenfranchises those members from board elections, raising potential interaction with the Racial Discrimination Act 1975 (Cth) or the Australian Constitution’s implied right to vote, though the application to superannuation fund board elections is distinct from federal elections.

The transitional provisions in Schedule 1 interact with the repealed 2010 regulations and the Prescribed Public Authorities Regulations 2010. Clause 7 provides that existing authorisations under the old regulation 16(1) and 16(3) continue as authorisations under the new regulation 16(1) and 16(2). Clause 8 provides that declarations of prescribed public authorities under the old regime are not affected by repeal. This means the list in regulation 18 is not exhaustive; any entity declared prescribed under the old regulations remains declared. Uncertainty may arise if there were entities declared under the old regulations that are not listed in regulation 18, but no such entities are identified in the source.

The repeal of Part 2 of the 2010 regulations means that any election in progress at commencement would need to transition to the new rules. The regulations are silent on transitional elections, which could create a gap.

The 2025 regulations are a complete remake of the Superannuation Funds Management Corporation of South Australia Regulations 2010. They do not amend that earlier instrument in piecemeal fashion; instead, they revoke it and replace it with a new set of provisions. However, Schedule 1 Part 1 contains amendments to the 2010 regulations that are necessary to clean up the statute book after the new regulations commence. Specifically, the amendment to regulation 1 changes the short title of the 2010 regulations to “Superannuation Funds Management Corporation of South Australia (Prescribed Public Authorities) Regulations 2010”, reflecting that those regulations will no longer contain election and investment provisions. Regulation 3 of the 2010 regulations has its definitions of “contributor” and “hour of nomination” deleted because those terms are no longer needed in the amended instrument. Part 2 of the 2010 regulations (which contained election rules) is repealed, as are regulations 16 and 16A (investment restrictions and related matters). Schedule 1 of the 2010 regulations is also repealed. The effect is to strip the 2010 regulations down to a skeleton that only holds the list of prescribed public authorities, and even that is then superseded by regulation 18 of the new regulations. Then Schedule 1 Part 2 repeals the separate Prescribed Public Authorities Regulations 2010 entirely, because their content is now in regulation 18.

The legislative history indicates that the 2025 regulations were made on 1 May 2025 and most provisions commence on that date. Regulation 18 (prescribed public authorities) commences on the day after the disallowance period expires, which is calculated under section 3(6) of the Acts Interpretation Act 1915 (SA). Schedule 1 Part 2 (repeal of the Prescribed Public Authorities Regulations 2010) commences on 1 September 2025. This staggered commencement means that between 1 May 2025 and 1 September 2025, both regulation 18 and the old Prescribed Public Authorities Regulations 2010 are in force concurrently, creating a potential double listing. However, the transitional provision in clause 8 says the repeal does not affect declarations made under the old regulations, so presumably the regulator will rely on the new list from the time regulation 18 commences, likely shortly after 1 May 2025.

The regulations do not have an amendment history because they are new. The 2010 regulations had their own amendment history, but that is not relevant to the 2025 instrument. The absence of an explicit expiration or sunset clause suggests the regulations continue indefinitely until further amendment.

No litigation is mentioned in the source text. The regulations are new (2025) and have not yet been the subject of any reported court proceedings. The source provides no case names, judgments, or legal disputes. Given that the regulations are subordinate legislation dealing with procedural matters (elections, investment approvals, and entity listing), litigation could arise in future on several grounds: a challenge to the validity of an election on the basis that the Electoral Commissioner did not follow the timetable, that ballot papers were not properly initialled, or that promotional material was unfairly excluded. A contributor could seek judicial review of an election result. The investment restrictions could give rise to disputes if the Corporation enters into a derivative contract without ministerial authorisation and a stakeholder challenges it, or if a certificate from the Minister is contested. The list of prescribed public authorities could be challenged if an entity believes it has been incorrectly included or omitted, or if the transitional clause 8 fails to preserve an old declaration properly. The evidentiary rule in regulation 16(5) (conclusive evidence of ministerial certificate) may be tested in court, given that it purports to exclude judicial review of the facts certified; such clauses are typically read down by courts to preserve the jurisdiction of the court to consider ultra vires or fraud. However, there is no existing case law reported. The regulations are likely too recent to have generated judicial interpretation. The litigation history must be recorded as a blank, drawing attention to potential future areas of contest.

Several aspects of the regulations are likely to trap the unwary. First, the definition of “contributor” for voting purposes in regulation 6 uses a lookback period tied to the “last business day before the 7 day period immediately preceding the day on which notice was published”. This complex date formula means a person who becomes a contributor just after the eligibility date cannot vote, even if they are a contributor by the time ballots are distributed. The superannuation boards must provide the eligibility list within seven days of publication; any delay by the board could disenfranchise contributors incorrectly omitted. There is no express mechanism for challenging a board’s list.

Second, the distribution of ballot papers via employers (regulation 9(4)(b)) introduces risk. An employer may fail to pass on the ballot paper, or pass it late, leaving the contributor with no remedy. The regulations do not impose obligations on employers to ensure delivery, nor do they provide a fallback if the contributor does not receive the envelope. Furthermore, the envelope must be signed by the voter; if it is unsigned or the signature is not recognised, the ballot may be rejected. The use of employer distribution also raises privacy concerns, as an employer may observe who receives a ballot, though the voting is secret.

Third, the word and photo limits for candidate promotional material (200 words, one photograph) are strict. The material must be provided “at or before the hour of nomination”. A candidate who submits material after that deadline will not have it included. The Electoral Commissioner has discretion as to the form of printing, so the candidate may not approve the final printed version.

Fourth, the preferential voting system uses a “tick or cross equals 1” rule. A voter who ticks multiple candidates does not create preferences; only a tick or cross is treated as a first preference, and the rest of the paper may be informal. The regulations do not allow for “just vote 1” and the preferences may not be exhausted; if a voter writes “1” only, the vote can be transferred only to the next preference if the first candidate is excluded. If no further preferences are marked, the ballot becomes exhausted and is not counted for the final candidate.

Fifth, the investment restriction deeming provision in regulation 16(3) is a double-edged sword. It says that if a derivative contract can be characterised as “obtaining financial accommodation”, it is taken to be authorised for the purposes of section 6(2) of the Act. However, this does not mean it is authorised for the purposes of regulation 16(2). Regulation 16(2) requires authorisation for entering into such contracts; regulation 16(3) only deems the contract to be authorised under section 6(2), but the wording is “for the purposes of section 6(2) of the Act”. It does not say it is authorised under regulation 16(2). The intersection is unclear: if the Corporation enters a derivative that is also financial accommodation, does the deeming provision exempt it from needing regulation 16(2) authorisation? The wording of 16(3) is “the contract or dealing will be taken to be authorised for the purposes of section 6(2) of the Act.” This does not expressly say it is authorised under regulation 16(2). A cautious reading would require separate ministerial authorisation regardless. This is a potential drafting trap.

Sixth, the transitional provisions clause 8 states that the repeal of the Prescribed Public Authorities Regulations 2010 “does not affect the declaration of any public authority under those regulations”. That suggests that any entity that was declared under the old regulations remains a prescribed public authority, even if not listed in regulation 18. However, regulation 18 is the operative provision declaring prescribed public authorities. There could be entities on the old list that are not on the new list, creating a situation where the new regulations intend to remove them but the transitional provision keeps them. It is impossible to resolve this without knowing the content of the old regulations, but it is a known pitfall for those relying solely on regulation 18.

Seventh, the evidentiary rule in regulation 16(5) that a ministerial certificate is conclusive evidence may be challenged. Courts usually construe “conclusive evidence” as conclusive only if there is no error of law or jurisdictional error. A party challenging an investment may argue the Minister’s certificate is not conclusive as to the fact of whether the transaction was actually authorised, or that the authorisation was invalid.

Eighth, the regulations do not prescribe a term for elected board members. Regulation 8 and 15 require the notice to specify “the length of the term”, implying that terms vary, but no default term is given. This might be in the Act or may be left to the board’s constitution.

Finally, the use of the Gazette and a website or newspaper for declarations means that interested parties must check multiple sources to confirm election results or the current status of authorisations.

For the Superannuation Funds Management Corporation, compliance requires a systematic approach to both investment activities and board elections. On investments, the Corporation should maintain an internal register of all proposed investments in property outside Australia, real property outside South Australia, and derivative contracts falling within regulation 16(2). For each such proposed transaction, the Corporation must seek prior written authorisation from the Minister, either specifically for that transaction or by reference to an approved class. The request should be in writing and the Corporation should obtain a signed certificate from the Minister under regulation 16(5) as a record. The Corporation should also assess whether any derivative contract can be characterised as financial accommodation; if so, it may be deemed authorised under section 6(2) but the safer course is to still seek authorisation under regulation 16(2) given the ambiguity. The Corporation should also ensure that any variation or revocation of an authorisation by the Minister is captured and that investments are wound down or restructured accordingly.

For elections, the Corporation must cooperate with the Electoral Commissioner in setting the timetable and must ensure that the superannuation boards provide an accurate list of eligible contributors within seven days of the election notice. The Corporation should have procedures to compile and deliver those lists promptly. Internally, the Corporation should identify which board positions are subject to election by contributors and ensure that the election is triggered only for those positions. Contributors should be informed of their voting rights and the deadlines.

For contributors, compliance is passive: they need to ensure their contact details are up to date with their superannuation board to receive ballot papers. Contributors should vote within the timeframe and follow the instructions: use a number 1 for first preference (or a tick/cross), add consecutive numbers if they wish, sign the envelope, and return it before the specified hour. If voting via employer distribution, contributors should follow up if they do not receive a ballot paper by the expected date.

For employers who receive ballot papers for distribution, they should accept the papers and forward them to the relevant contributors without delay. The regulations do not prescribe a time, but best practice would be to distribute within one business day. Employers should not open or inspect the ballot papers.

For candidates, compliance entails obtaining a nomination form signed by at least three contributors, submitting it by the hour of nomination, and preparing promotional material that does not exceed 200 words and one photograph. The material must be provided at or before the hour of nomination. Candidates should expect the Electoral Commissioner to format the material and should check its accuracy. Candidates cannot serve as scrutineers.

For the Minister, compliance involves responding to authorisation requests in a timely manner, either specifically or by class, and issuing certificates. The Minister should keep a register of authorisations and variations.

General compliance for all parties includes monitoring the Gazette and at least one daily newspaper for election notices and declarations. The regulations allow use of a website, but parties should not rely solely on the website until the Electoral Commissioner determines it. With respect to prescribed public authorities, entities listed in regulation 18 (or continued by transitional clause 8) should verify their status and understand any reporting or investment governance obligations under the Act. Officers of those entities should liaise with the Corporation to clarify how their nominated funds, if any, are managed.