Superannuation Legislation Amendment and Validation Act 2006 (WA)

Western Australia

Superannuation Legislation Amendment and

Validation Act 2006

Western Australia

Superannuation Legislation Amendment and

Validation Act 2006

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
Part 2 — Parliamentary

Superannuation

Act 1970 amended

3.	The Act amended in this Part	3
4.	Section 28 amended	3
Part 3 — State Superannuation

Act 2000 amended

5.	The Act amended in this Part	5
6.	Section 3 amended	5
7.	Section 6 amended	5
8.	Section 7 amended	6
9.	Sections 7A and 7B inserted	6

7A.	Formation or acquisition of subsidiary	6
7B.	Control of subsidiary	7

10.	Section 15 amended	8
11.	Section 28 amended	8
12.	Section 33 amended	9
13.	Section 36 amended	9
14.	Section 38 amended	9
15.	Section 40 inserted	11

Superannuation Legislation Amendment and Validation Act 2006

Contents

40. Inconsistent written laws 11

16.	Schedule 3 inserted	11
Schedule 3 — Provisions to be included in

constitution of subsidiary

1.	Definition	11
2.	Disposal of shares	11
3.	Directors	12
4.	Further shares	12
5.	Alteration of constitution	12
6.	Subsidiaries of subsidiary	12

Part 4 — Validation provisions

17.	Validation of certain payments	13
18.	Validation of contributions made for visiting
medical practitioners	14
19.	Validation of statutory membership of workers
who ceased to be excluded	15
20.	Validation of certain things done under the
Superannuation and Family Benefits Act 1938	15

Western Australia

Superannuation Legislation Amendment and

Validation Act 2006

No. 18 of 2006

An Act to —

amend the Parliamentary Superannuation Act 1970 and the State

Superannuation Act 2000; and

validate certain things done under the State Superannuation

Act 2000, the Government Employees Superannuation Act 1987

and the Superannuation and Family Benefits Act 1938.

[Assented to 31 May 2006]

The Parliament of Western Australia enacts as follows:

Superannuation Legislation Amendment and Validation Act 2006

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1.             Short title

This is the Superannuation Legislation Amendment and

Validation Act 2006.

2.             Commencement

This Act comes into operation on the day on which it receives the

Royal Assent.

Superannuation Legislation Amendment and Validation Act 2006

Parliamentary Superannuation Act 1970 amended Part 2

s. 3

Part 2 — Parliamentary Superannuation

Act 1970 amended

3.             The Act amended in this Part

The amendments in this Part are to the Parliamentary

Superannuation Act 1970*.

[* Reprint 3 as at 4 April 2003.]

4.             Section 28 amended

(1) Section 28(3) is amended as follows:

(a) after paragraph (i) by inserting the following paragraph —

“

(ia)

things that may be done to satisfy the

requirements of Division 2.2 of the Family Law

(Superannuation) Regulations 2001 of the

Commonwealth;

”;

(b) in paragraph (j) by deleting “(i)” and inserting instead —

“ (ia) ”.

(2) After section 28(4) the following subsections are inserted —

“

(5)

Subsection (4) does not prevent the making of a

determination that reduces or provides for the reduction

of any benefits to which a member or former member

is or will become entitled if —

(a) a superannuation agreement, flag lifting agreement or splitting order is in force in respect of the member or former member; and

Superannuation Legislation Amendment and Validation Act 2006

Part 2	Parliamentary Superannuation Act 1970 amended
s. 4
(b) the reduction does not reduce those benefits to less than the member’s or former member’s entitlement under the agreement or order.

(6)	In subsection (5), “flag lifting agreement”, “splitting order” and “superannuation agreement” each have the meaning given to them in section 90MD of the
Family Law Act 1975 of the Commonwealth.

”.

Superannuation Legislation Amendment and Validation Act 2006

State Superannuation Act 2000 amended Part 3

s. 5

Part 3 — State Superannuation Act 2000 amended

5.             The Act amended in this Part

The amendments in this Part are to the State Superannuation

Act 2000*.

[* Act No. 42 of 2000.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 431.]

6.             Section 3 amended

(1)

Section 3(1) is amended by inserting after the definition of

“scheme” —

“

“subsidiary” means a body determined under

subsection (3) to be a subsidiary of the Board;

”.

(2) After section 3(2) the following subsection is inserted —

“

(3) Part 1.2 Division 6 of the Corporations Act 2001 of the Commonwealth applies for the purpose of determining whether a body is a subsidiary of the Board.

”.

7.             Section 6 amended

Section 6(1) is amended as follows:

(a) after each of paragraphs (a), (b), (c) and (d) by inserting —

“ and ”;

Superannuation Legislation Amendment and Validation Act 2006

Part 3	State Superannuation Act 2000 amended
s. 8

(b) by deleting paragraph (e), and “and” after it, and inserting instead —

“

(e) provide, or facilitate the provision of, products and services to —

(i)      members of superannuation schemes administered by the Board under this Act or any other written law; and

(ii) Employers;

and

”.

8.             Section 7 amended

Section 7(2) is amended as follows:

(a) after each of paragraphs (a), (b), (d) and (e) by inserting —

“ and ”;

(b) after paragraph (c) by inserting —

“

and

(ca)

subject to section 7A, form or acquire a

subsidiary for the purpose of performing the

function referred to in section 6(1)(e); and

”.

9.             Sections 7A and 7B inserted

After section 7 the following sections are inserted —

“

7A. Formation or acquisition of subsidiary

(1)

The Board must obtain the approval of the Minister

before it forms or acquires a subsidiary.

Superannuation Legislation Amendment and Validation Act 2006

State Superannuation Act 2000 amended Part 3

s. 9

(2)

The Minister must not give approval under

subsection (1) except with the Treasurer’s concurrence.

(3)

When seeking approval under subsection (1) the Board

must give to the Minister a copy of the subsidiary’s

constitution or proposed constitution, as the case

requires.

7B. Control of subsidiary

(1)	In this section —
“Corporations Act” means the Corporations Act 2001

of the Commonwealth.

(2)

The Board must ensure that the constitution of every

subsidiary of the Board that under a written law or the

Corporations Act is required to have a constitution —

(a)	contains provisions to the effect of those required by Schedule 3; and
(b)	is consistent with this Act; and
(c)	is not amended in a way that makes it inconsistent with this Act.

(3)

A director or a member of the staff of the Board may with the approval of the Board become a director of a company that is or is to be a subsidiary of the Board.

(4)

The provisions of this Act prevail to the extent of any

inconsistency with the constitution of any subsidiary of

the Board.

(5) Neither —

(a) subsection (2); nor

(b) provisions referred to in subsection (2)(a) included in the constitution of a subsidiary,

make the Board or the Minister a director of a

subsidiary for the purposes of the Corporations Act.

Superannuation Legislation Amendment and Validation Act 2006

Part 3	State Superannuation Act 2000 amended
s. 10

(6)

Subsections (2) to (5) and Schedule 3 are declared to

be Corporations legislation displacement provisions for

the purposes of section 5G of the Corporations Act in

relation to the Corporations legislation as defined in

section 9 of the Corporations Act.

”.

10.           Section 15 amended

(1)

Section 15(1)(b) is amended by deleting “in respect of

Members”.

(2)

Section 15(2) is amended as follows:

(a) after paragraph (a) by inserting —

“ and ”;

(b) before paragraph (c) by inserting —

“

(ba)

expenditure relating to the establishment of a

subsidiary under section 7(2)(ca); and

”.

11.           Section 28 amended

(1)

Section 28(2) is repealed and the following subsection is

inserted instead —

“

(2)

A scheme, other than a scheme continued by

section 29(b), (c) or (d), may provide for the spouses or

former spouses of —

(a)	persons who are working, or have worked, for Employers; or
(b)	persons who are, or will become, entitled to benefits under the Parliamentary Superannuation Act 1970,

to participate in the scheme.

Superannuation Legislation Amendment and Validation Act 2006

State Superannuation Act 2000 amended	Part 3
s. 12

”.

(2)

Section 28(3) is amended by inserting before the definition of

“spouse” —

“

“benefits” has the meaning given to that term in

section 28(1) of the Parliamentary

Superannuation Act 1970;

”.

12.           Section 33 amended

Section 33(2) is amended as follows:

(a) after each of paragraphs (a) to (h) by inserting —

“ and ”;

(b)

in paragraph (b) by deleting “other” and inserting “

, or the facilitation by the Board of the

provision of,

”.

13.           Section 36 amended

(1)	Section 36(1)(a) is amended by inserting after “Board” —
“ or a subsidiary ”.
(2)	Section 36(3) is amended by inserting after “Board” —
“ or a subsidiary ”.

14.           Section 38 amended

(1) Section 38(2) is amended as follows:

(a) after each of paragraphs (a) to (j) by inserting —

“ and ”;

Superannuation Legislation Amendment and Validation Act 2006

Part 3	State Superannuation Act 2000 amended
s. 14

(b) in paragraph (c) by deleting “to be made to” and inserting instead —

“ and transfers of money to ”;

(c) in paragraph (j) by deleting “other” and inserting instead —

“ , or facilitation by the Board of the provision of, ”.

(2) After section 38(4) the following subsections are inserted —

“

(4a)

Subsections (3) and (4) do not apply in respect of

regulations that reduce or provide for the reduction of a

Member’s benefit if —

(a)	a superannuation agreement, flag lifting agreement or splitting order is in force in respect of the Member; and
(b)	the reduction does not reduce the Member’s benefit to less than the Member’s entitlement under the agreement or order.

(4b)

In subsection (4a), “flag lifting agreement”,

“splitting order” and “superannuation agreement”

each have the meaning given to them in section 90MD

of the Family Law Act 1975 of the Commonwealth.

”.

(3)

Section 38(5)(b) is deleted and the following paragraph is

inserted instead —

“

(b) relate to a matter referred to in subsection (2)(j),

”.

Superannuation Legislation Amendment and Validation Act 2006

State Superannuation Act 2000 amended	Part 3
s. 15

15.           Section 40 inserted

After section 39 the following section is inserted —

“

40.           Inconsistent written laws

The provisions of this Act and the regulations made or applying under it that deal with the payment of benefits under a scheme prevail over section 10 of the

Administration Act 1903 to the extent of any inconsistency.

”.

16.           Schedule 3 inserted

After Schedule 2 the following Schedule is inserted —

“

Schedule 3 — Provisions to be included in

constitution of subsidiary

[s. 7B]

1.              Definition

In this Schedule —

“prior approval” means the prior written approval of the

Minister given with the Treasurer’s concurrence.

2.              Disposal of shares

(1)

The Board must not sell or otherwise dispose of shares in

the subsidiary without prior approval.

(2)

The Minister is empowered to execute a transfer of any

shares in the subsidiary held by the Board.

Superannuation Legislation Amendment and Validation Act 2006

Part 3	State Superannuation Act 2000 amended
s. 16

3.              Directors

(1)

The directors of the subsidiary are to be appointed by the

Board, but no such director may be appointed without prior

approval.

(2)

All decisions relating to the operation of the subsidiary are

to be made by or under the authority of the board of the

subsidiary in accordance with the statement of corporate

intent of the Board and the subsidiary.

(3)

The board of the subsidiary is accountable to the Minister in

the manner set out in section 36 and in the constitution of

the subsidiary.

4.              Further shares

Shares in the subsidiary must not be issued or transferred

without prior approval.

5.              Alteration of constitution

The constitution of the subsidiary must not be modified or

replaced without prior approval.

6.              Subsidiaries of subsidiary

(1)

The subsidiary must not form or acquire any subsidiary

without prior approval.

(2)

The subsidiary must ensure that the constitution of each of

its subsidiaries at all times complies with this Act.

(3)

The subsidiary must, to the maximum extent practicable,

ensure that each of its subsidiaries complies with its

constitution and with the requirements of this Act.

”.

Superannuation Legislation Amendment and Validation Act 2006

Validation provisions	Part 4
s. 17

Part 4 — Validation provisions

17.           Validation of certain payments

(1)	In this section —
“Superannuation Act” means the State Superannuation

Act 2000, the Government Employees Superannuation

Act 1987 or the Superannuation and Family Benefits

Act 1938.

(2)

A payment or purported payment of a benefit under the State

Superannuation Act 2000, the Government Employees

Superannuation Act 1987 or the Superannuation and Family

Benefits Act 1938 that was —

(a)	made before this section came into operation; and
(b)	invalid or ineffective because of the Administration Act 1903 section 10,

is, and is to be taken always to have been, as valid and effective

as it would have been if the State Superannuation Act 2000

section 40, as inserted by section 15 of this Act, had been in

operation in respect of each Superannuation Act at the time of

the payment.

(3) If —

(a)	a benefit under the State Superannuation Act 2000, the Government Employees Superannuation Act 1987 or the Superannuation and Family Benefits Act 1938 was paid to an executor or administrator of the estate of a deceased person before this section came into operation; and
(b)	the executor or administrator paid, or purportedly paid, some or all of the benefit to another person before this section came into operation; and

Superannuation Legislation Amendment and Validation Act 2006

Part 4	Validation provisions
s. 18

(c) the payment was invalid or ineffective because of the Administration Act 1903 section 10,

the executor or administrator is, and is to be taken always to

have been, as liable for the payment referred to in paragraph (b)

as the executor or administrator would have been if the State

Superannuation Act 2000 section 40, as inserted by section 15

of this Act, had been in operation in respect of each

Superannuation Act at the time of the payment referred to in

paragraph (a).

18.           Validation of contributions made for visiting medical practitioners

(1)	In this section —
“Board” means the Government Employees Superannuation Board referred to in the State Superannuation Act 2000 section 5;
“visiting medical practitioner” means a medical practitioner

engaged, other than as an employee, to provide services in

a hospital.

(2)

This section applies in relation to superannuation contributions made, or purportedly made, under the Government Employees Superannuation Act 1987 or the State Superannuation Act 2000

in respect of a visiting medical practitioner between 1 July 1992

and 30 June 2001.

(3)

A thing done, or purportedly done, by the Board in consequence

of a superannuation contribution having been made, or

purportedly made, in respect of a visiting medical practitioner

is, and is to be taken always to have been, as valid and effective

as if the contribution had been made in respect of a person who

was a member of the relevant scheme.

Superannuation Legislation Amendment and Validation Act 2006

Validation provisions	Part 4
s. 19

19.           Validation of statutory membership of workers who ceased to be excluded

(1) A person who —

(a) when the State Superannuation Regulations 2001 came into operation —

(i)      was a worker; and

(ii)      was excluded from becoming a statutory Member (as defined in those regulations) by the State Superannuation Regulations 2001 regulation 51(2), (3) or (4);

and

(b) before the State Superannuation Amendment Regulations 2006 came into operation, ceased to be so excluded,

is taken to have become a statutory Member when he or she

ceased to be so excluded.

(2)

Anything done or purported to have been done under the State

Superannuation Regulations 2001 before this Act came into

operation in relation to a person to whom subsection (1) applies,

is as valid as it would have been if the State Superannuation

Amendment Regulations 2006 had come into operation

immediately after the State Superannuation Regulations 2001

came into operation.

20.           Validation of certain things done under the Superannuation and Family Benefits Act 1938

A thing done or purportedly done —

(a) under the Superannuation and Family Benefits Act 1938 (whether as continued in force by the State Superannuation (Transitional and Consequential Provisions) Act 2000 section 26 or not); and

Superannuation Legislation Amendment and Validation Act 2006

Part 4	Validation provisions
s. 20

(b) before the State Superannuation Amendment Regulations (No. 4) 2003 came into operation,

is, and is to be taken always to have been, as valid and effective

as it would have been if the definition of “department” in the

Superannuation and Family Benefits Act 1938 section 6(1) had

been amended on 1 January 1997 by inserting after “port

authority” —

“

, every college (within the meaning of the

Vocational Education and Training Act 1996)

”.