South Australian Consolidated Acts South Australian Consolidated ActsPart A—Preliminary
(1) In this Schedule,
unless the contrary intention appears—
the Board means the Electricity Industry Superannuation Board—see Part
B;
electricity supply industry has the same meaning as in the
Electricity Act 1996 ;
employer means—
(a) a
person or body who employs a pre-privatisation member of the Scheme in the
electricity supply industry;
(b) a
person or body who employs any other member of the Scheme in the electricity
supply industry;
(c) a
public sector employer who employs a pre-privatisation member of the Scheme
who accepted an offer made under section 24 of the Electricity Corporations
(Restructuring and Disposal) Act 1999 ;
(d) a
gas trading company that employs a pre-privatisation member of the Scheme or
any other member of the Scheme;
gas trading company means—
(a)
Terra Gas trader Pty Ltd; and
(b) any
other body corporate—
(i)
carrying on the business of trading in gas; or
(ii)
that employs persons in, or in relation to, the business
of trading in gas,
that has been declared by proclamation to be a gas trading company for the
purposes of this Schedule;
member of the Scheme has the same meaning as in the Trust Deed;
pre-privatisation member means a person who was a member of Division 2, 3 or 4
of the Electricity Industry Superannuation Scheme immediately before the
commencement of clause 10 but does not include a person who, after the
commencement of that clause, ceased to be a member of the Scheme but is
subsequently re-admitted to membership of the Scheme;
private sector employer means an employer that is not the Crown, an
electricity corporation or a State-owned company or any instrumentality of the
Crown or statutory corporation;
public sector employer means an employer that is the Crown, an electricity
corporation or a State-owned company or any instrumentality of the Crown or
statutory corporation;
the Rules means the Rules referred to in the Trust Deed;
the Scheme means the Electricity Industry Superannuation Scheme—see
clause 3 of the Trust Deed;
the Scheme assets has the same meaning as in the Trust Deed;
State-owned company has the same meaning as in the
Electricity Corporations (Restructuring and Disposal) Act 1999 ;
the Trust Deed means the Electricity Industry Superannuation Scheme Trust
Deed.
(2) In this Schedule,
a reference to a Commonwealth Act is a reference to that Act as amended from
time to time or an Act enacted in substitution for that Act.
Part B—The Electricity Industry Superannuation Board
2—The Electricity Industry Superannuation Board
(1) The ETSA
Superannuation Board continues in existence under the name Electricity
Industry Superannuation Board .
(2) The Board—
(a) is a
body corporate; and
(b) has
perpetual succession and a common seal; and
(c) is
capable of suing and being sued in its corporate name; and
(d) is a
constitutional corporation for the purposes of section 19 of the
Superannuation Industry (Supervision) Act 1993 of the Commonwealth; and
(e) has
the functions and powers assigned or conferred by this Schedule, the Trust
Deed and the Rules; and
(f) is
not an agency or instrumentality of the Crown.
(3) Where a document
appears to bear the common seal of the Board, it will be presumed, in the
absence of proof to the contrary, that the document was duly executed by the
Board.
(1) Subject to
subclause (2), the Board is the trustee of the Scheme and is responsible
for all aspects of the administration of the Scheme pursuant to this Schedule,
the Trust Deed and the Rules.
(2) Subject to
subclause (3), the Board ceases to be the trustee of the Scheme at the
end of the financial year in which, for the first time, all members of the
Scheme who are employed in the electricity supply industry are employed by
private sector employers.
(3) The private sector
employers may, by a majority decision, extend the Board's office as trustee of
the Scheme.
(4) If the Board
ceases to be the trustee of the Scheme, the Treasurer may, by notice in the
Gazette, dissolve the Board and in that event any assets of the Board in
addition to the Scheme assets will vest in the new trustee of the Scheme and
any liabilities of the Board will attach to the new trustee.
(1) The Board consists
of the following members:
(a) two
members elected by the members of the Scheme in accordance with the Rules; and
(b) four
members appointed by the employers pursuant to the Rules; and
(d) two
members appointed by the United Trades and Labor Council; and
(e) an
independent member appointed by the other members of the Board.
(2) In the case of the
members elected under subclause (1)(a), and in the case of the members
appointed under subclause (1)(b), at least one must be a woman and at
least one must be a man.
(3) A member of the
Board may, with the approval of the Board, appoint a deputy to the member and
the deputy may, in the absence or during a temporary vacancy in the office of
that member, act as a member of the Board.
(4) Subject to
subclause (5), a member of the Board will be elected or appointed for a
term not exceeding three years determined in accordance with the Rules.
(5) A member of the
Board elected or appointed to fill a casual vacancy will be elected or
appointed for the balance of the term of his or her predecessor.
(6) The office of a
member of the Board becomes vacant if the member—
(a)
dies; or
(b)
completes a term of office and is not re-elected or reappointed; or
(c)
resigns by written notice to the Board; or
(d) is
removed from office by the Board on the ground—
(i)
of mental or physical incapacity to carry out official
duties satisfactorily; or
(iv)
that the member is a disqualified person within the
meaning of the Superannuation Industry (Supervision) Act 1993 of the
Commonwealth.
5—Procedure at meetings of Board
(1) A meeting of the
Board will be chaired by the independent member but, if he or she is absent,
the meeting will be chaired by a member of the Board chosen by those present.
(2) Subject to
subclause (3), the Board may act despite vacancies in its membership.
(3) Six members of the
Board constitute a quorum for a meeting of the Board.
(4) Each member
present at a meeting of the Board is entitled to one vote on a matter arising
for determination at the meeting.
(5) A decision of the
Board requires the vote of six members of the Board in favour of the decision.
(6) Subject to this
Schedule, the Trust Deed and the Rules, the Board may determine its own
procedures.
(7) The Board must
keep minutes of its proceedings.
Part C—Ownership of Scheme assets
(1) The Scheme assets
are vested in the Board and if the Board ceases to be the trustee of the
Scheme, the Scheme assets are vested in the trustee for the time being of the
Scheme.
(2) No stamp duty,
financial institutions duty or debits tax is payable under the law of the
State in respect of the vesting of Scheme assets in the Board or any other
trustee of the Scheme by subclause (1).
(3) No person has an
obligation under the Stamp Duties Act 1923 , the
Financial Institutions Duty Act 1983 or the Debits Tax Act 1990
—
(a) to
lodge a statement or return relating to a matter referred to in
subclause (2); or
(b) to
include in a statement or return a record or information relating to such a
matter.
Part D—Reports
(1) The Board must, on
or before 31 October in each year, submit a report to the Treasurer on the
operation of this Schedule, the Trust Deed and the Rules and on the management
and investment of the Scheme assets during the financial year ending on 30
June in that year.
(2) The report under
subclause (1) must include the audited financial statements of the Scheme
for the relevant financial year.
(3) An actuary
appointed by the Board must, in relation to the triennium ending on 30 June
1999 and thereafter in relation to each succeeding triennium, report to the
employers, the Board and the Treasurer—
(a) on
the employer costs of the Scheme at the time of making the report and during
the foreseeable future; and
(b) on
the ability of the Scheme assets to meet the Scheme's current and future
liabilities,
(each report must be submitted within 12 months after the end of the relevant
triennium).
(4) The Treasurer
must, within six sitting days after receiving a report under this clause, have
copies of the report laid before both Houses of Parliament.
(5) Where, under the
Rules, the Board determines a rate of return that is at variance with the net
rate of return achieved by investment of the Scheme assets, the Board must
include its reasons for the determination in its report for the relevant
financial year.
Part E—Transfer of members of the non-contributory scheme
8—Transfer of members of the non-contributory scheme
(1) The Treasurer may,
by notice in writing to the Electricity Industry Superannuation Board and the
South Australian Superannuation Board before the relevant day, transfer a
member of the non-contributory scheme who is no longer employed by an employer
within the meaning of this Schedule but who is entitled to preserved benefits
in the non-contributory scheme to a superannuation scheme (to be specified in
the notice) established by an Act of Parliament.
(2) The trustee of a
scheme to whom a person is transferred under subclause (1) must open an
employer contribution account in the name of the person and must credit to the
account the balance credited in favour of the person in the non-contributory
scheme immediately before the transfer.
(3) The Governor may,
by regulation, make provisions of a transitional nature in relation to the
transfer of a person under this clause.
(4) A regulation under
subclause (3) may—
(a)
modify the provisions of the Act establishing the scheme to which the person
has been transferred in their application to that person;
(b)
operate prospectively or retrospectively from a date specified in the
regulation.
(5) A notice under
subclause (1) must identify the person or persons to whom it applies.
(6) On receipt of the
notice, the Electricity Industry Superannuation Board must give notice to each
person transferred advising him or her of the transfer.
(7) On the transfer of
a person under this clause, his or her entitlements under the non-contributory
scheme cease.
(8) The South
Australian Superannuation Board may, from time to time, require the
Electricity Industry Superannuation Board to provide it with information that
is in its possession relating to persons transferred under this clause.
(9) Despite any other
Act or law to the contrary, the Electricity Industry Superannuation Board must
comply with a requirement under subclause (8).
(10) In this
clause—
the non-contributory scheme means the non-contributory superannuation scheme
maintained under Part H of Schedule 1 of this Act repealed by the
Electricity Corporations (Restructuring and Disposal) Act 1999 ;
the relevant day means the day on which the approval of the Treasurer ceases
to be required for the variation or replacement of the Rules.
Part F—Miscellaneous
9—Exclusion of section 35B of Trustee Act 1936
Section 35B of the Trustee Act 1936 does not apply to, or in relation to,
the Scheme.
10—Closure of Division 2 of the Scheme
(1) Subject to
subclause (2), a person cannot apply for membership of Division 2 of the
Scheme after the commencement of this clause.
(2) Subclause (1)
does not apply to a person who is a member of Division 3 or 4 of the Scheme
when he or she applies for membership of Division 2.
11—Treasurer may vary Rules in relation to taxation
(1) The Treasurer may,
after consultation with the trustee of the Scheme, insert into the Rules a
rule or rules relating to changes in benefits for members and employer costs
in relation to those benefits, following the Scheme's loss of constitutional
protection.
(2) A rule inserted by
the Treasurer may—
(a)
prescribe a decrease in the level of gross benefits; or
(b)
require benefits to be paid on an untaxed basis or partly on an untaxed basis;
or
(c) make
provisions of the kind referred to in both paragraphs (a) and (b),
in order to avoid or reduce an increase in employer costs caused by changes in
the incidence of taxation as a result of the Scheme's loss of constitutional
protection.
(3) Subject to
subclause (4), the change in benefits effected by a rule made under this
clause must not result in the level of net benefits to which a member, or a
person in respect of a member, is entitled being less than the level of net
benefits to which he or she would have been entitled if the Scheme had not
lost constitutional protection.
(4) The level of net
benefits to which a member, or a person in respect of a member, is entitled
may be reduced below the level permitted by subclause (3) to avoid or
reduce an increase in employer costs attributable to tax under the
Superannuation Contributions Tax (Assessment and Collection) Act 1997 of
the Commonwealth in relation to the member.
(5) A rule made under
this clause may operate differently in relation to—
(a)
different classes of members;
(b)
different classes of benefits;
(c)
different classes of components of benefits.
(6) A rule made under
this clause—
(a) must
be made by notice in writing given to the trustee of the Scheme before the
relevant day;
(b) may
be varied or revoked by the Treasurer by notice in writing to the trustee
before that day;
(c) is
not subject to the Subordinate Legislation Act 1978 .
(7) The trustee of the
Scheme may vary or replace a rule inserted in the Rules under this clause in
the same manner as it can vary or replace any of the other rules of the
Scheme.
(8) In this
clause—
level of gross benefits in relation to a member means the amount of the
benefits to which the member, or another person in respect of the member, is
entitled under the Scheme before tax attributable to those benefits has been
paid or allowed for;
level of net benefits in relation to a member means the amount of the benefits
to which the member, or another person in respect of the member, is entitled
after tax attributable to those benefits has been paid or allowed for using
the tax rates applicable on the day on which the Scheme loses constitutional
protection and based on the assumption that the member has reached the age of
55 years;
the relevant day means the day on which the approval of the Treasurer ceases
to be required for the variation or replacement of the Rules.
(9) For the purposes
of this clause—
(a)
benefits are paid on an untaxed basis where the trustee of the Scheme has made
an election under the Income Tax Assessment Act 1936 of the Commonwealth
as a result of which the person receiving the benefits is liable for a higher
rate of tax in relation to them;
(b) the
Scheme loses constitutional protection when it ceases to be a constitutionally
protected fund for the purposes of the Income Tax Assessment Act 1936 of
the Commonwealth.
12—Appeal to trustee against rule under clause 11
(1) A member of the
Scheme, or if the member has died, a person who is entitled to receive a
benefit in respect of the member, may appeal to the trustee of the Scheme on
the ground that a rule made under clause 11 has the effect in relation to
the member of reducing the level of net benefits to which the member or other
person is entitled below the level permitted by clause 11.
(2) An appeal—
(a) must
be made in the manner and form determined by the trustee;
(b) may
be made at any time before the expiration of six months after benefits have
become payable to the member or other person and the member or other person
has received a written statement from the trustee as to the amount of the
benefits.
(3) If the trustee
(after giving the appellant and the employer of the member, or former member,
a reasonable opportunity to appear and be heard, either personally or by
representative) is satisfied that the appeal should be allowed, it must—
(a) vary
the effect of the rule as it applies to, or in respect of, the member; and
(b)
determine the amount of the benefits to which the member or other person is
entitled following the variation under paragraph (a); and
(c) make
any ancillary determination or order that in its opinion is necessary or
desirable.
(4) No proceedings for
judicial review or for a declaration, injunction, writ, order or other remedy
(other than an appeal under this clause) may be brought before a court,
tribunal, or other person or body to challenge or question the validity or
operation of a rule made under clause 11.
(5) In this
clause—
level of net benefits has the same meaning as in clause 11.
13—Separation of Trust Deed from Schedule
(1) The Trust Deed
ceases to form part of this Schedule on a day to be fixed by the Treasurer for
that purpose by notice published in the Gazette.
(2) The Trust Deed
remains in full force and effect after separation from this Schedule under
subclause (1).
(1) An employer who
employs a pre-privatisation member of the Scheme (whether before or after
separation of the Trust Deed from this Schedule under clause 13) is bound
by the Trust Deed as an employer under the Deed whether that person or body
has agreed to be bound or not.
(2) Subject to
subclause (4), where the employment of a member is transferred by an
employee transfer order under the Electricity Corporations
(Restructuring and Disposal) Act 1999 from an electricity corporation or
a State-owned company to a purchaser under a sale/lease agreement within the
meaning of that Act, the purchaser is liable (unless the Trust Deed or the
Rules expressly provide otherwise) to pay to the Scheme within the period of
five years immediately following the transfer of the employment of the member
an amount (to be determined by an actuary appointed by the Treasurer)
sufficient to meet the unfunded liability of the Scheme in respect of the
member's entitlement to benefits that accrued before the transfer of the
member's employment to the purchaser.
(2a) Subject to
subclause (4), where shares in an electricity corporation or a
State-owned company are transferred pursuant to a sale/lease agreement within
the meaning of the Electricity Corporations (Restructuring
and Disposal) Act 1999 , the former electricity corporation or
State-owned company is liable (unless the Trust Deed or the Rules expressly
provide otherwise) to pay to the Scheme within the period of five years
immediately following the transfer of the shares an amount (to be determined
by an actuary appointed by the Treasurer) sufficient to meet the unfunded
liability of the Scheme in respect of benefits—
(a) that
accrued before the transfer of the shares occurred; and
(b) that
accrued for the benefit of those persons who were employed by the corporation
or company and were members of the Scheme when the shares were transferred.
(3) The Treasurer is
liable to pay to the Scheme the amount required to fully satisfy the whole or
that part (if any) of the liability of a purchaser under subclause (2) or
a former electricity corporation or State-owned company under
subclause (2a) that has not been satisfied by the purchaser or former
electricity corporation or State-owned company within the period referred to
in the relevant subclause and, on payment of that amount by the Treasurer, the
purchaser or former electricity corporation or State-owned company is liable
to pay the same amount to the Treasurer.
(4) The Treasurer may,
by notice in writing to the purchaser or the former electricity corporation or
State-owned company, release the purchaser or former electricity corporation
or State-owned company from the whole or part of its liability under
subclause (2) or (2a) and, in that event, the Treasurer must pay to the
Scheme the equivalent of the amount by which the liability has been reduced.
The Electricity Industry Superannuation Scheme Trust Deed
Note—
The clauses of the Trust Deed will be renumbered when 36/1999 Sch 3
Pt 4 cl 4(j) comes into operation.
1—Operation of Deed
(1) This Deed forms
part of Schedule 1 of the Electricity Corporations Act 1994 as
substituted by the Electricity Corporations
(Restructuring and Disposal) Act 1999 until the Schedule and this Deed
are separated under clause 13 of the Schedule.
(2) This Deed comes
into operation at the same time as the Schedule.
2—Interpretation
(1) In this Trust
Deed, unless the contrary intention appears—
actuary means—
(a) a
Fellow or Accredited Member of the Institute of Actuaries of Australia; or
(b) a
partnership at least one member of which must be a Fellow or Accredited Member
of the Institute of Actuaries of Australia; or
(c) a
body corporate that employs or engages a Fellow or Accredited Member of the
Institute of Actuaries of Australia for the purpose of providing actuarial
advice;
amending Act means the Statutes Amendment (Electricity Industry Superannuation
Scheme) Act 2006 ;
the Board means the Electricity Industry Superannuation Board continued in
existence by Schedule 1 of the Electricity Corporations Act 1994 ;
commencement of this Deed —see clause 1;
electricity supply industry has the same meaning as in the
Electricity Act 1996 ;
employer means—
(a) a
person or body who employs a pre-privatisation member of the Scheme in the
electricity supply industry;
(b) a
person or body who employs any other member of the Scheme in the electricity
supply industry;
(c) a
public sector employer who employs a pre-privatisation member of the Scheme
who accepted an offer made under section 24 of the Electricity Corporations
(Restructuring and Disposal) Act 1999 ;
(d) a
gas trading company that employs a pre-privatisation member of the Scheme or
any other member of the Scheme;
gas trading company means—
(a)
Terra Gas trader Pty Ltd; and
(b) any
other body corporate—
(i)
carrying on the business of trading in gas; or
(ii)
that employs persons in, or in relation to, the business
of trading in gas,
that has been declared by proclamation to be a gas trading company for the
purposes of this Deed;
member of the Scheme means a person who is a member of the Scheme pursuant to
this Deed;
pre-privatisation member means a person who was a member of Division 2, 3 or 4
of the Electricity Industry Superannuation Scheme immediately before the
commencement of clause 10 of the Schedule but does not include a person who,
after the commencement of that clause, ceased to be a member of the Scheme but
is subsequently re-admitted to membership of the Scheme;
private sector employer means an employer that is not the Crown, an
electricity corporation or a State-owned company or any instrumentality of the
Crown or statutory corporation;
public sector employer means an employer that is the Crown, an electricity
corporation or a State-owned company or any instrumentality of the Crown or
statutory corporation;
relevant law means the law for the time being set out in—
(a) the
Superannuation Industry (Supervision) Act 1993 of the Commonwealth; and
(b) the
Income Tax Assessment Act 1936 of the Commonwealth; and
(c) the
Superannuation (Resolution of Complaints) Act 1993 of the Commonwealth;
and
(d) such
other Act, regulation, rule or other legislative instrument as the Trustee
determines should be included in this definition;
repealed Schedule means Schedule 1 of the Electricity
Corporations Act 1994 repealed by the Electricity Corporations
(Restructuring and Disposal) Act 1999 ;
the Rules means the Rules of the Electricity Industry Superannuation Scheme
(being the Rules of the ETSA Contributory Superannuation Scheme and the ETSA
Non-Contributory Superannuation Scheme at the commencement of this Deed) as
varied or replaced from time to time;
the Schedule means Schedule 1 of the Electricity Corporations Act 1994 as
substituted by the Electricity Corporations
(Restructuring and Disposal) Act 1999 ;
the Scheme means the Electricity Industry Superannuation Scheme—see
clause 3;
the Scheme assets —see clause 9;
State-owned company has the same meaning as in the
Electricity Corporations (Restructuring and Disposal) Act 1999 ;
Trustee means the Board or any body for the time being appointed to the office
of trustee of the Scheme.
(2) In this Deed, a
reference to a Commonwealth Act is a reference to that Act as amended from
time to time or an Act enacted in substitution for that Act.
(3) The Rules form
part of this Deed and accordingly a reference to the Deed includes a reference
to the Rules.
(4) Although the Rules
form part of the Deed, a provision of the Deed applies to the exclusion of a
provision of the Rules to the extent of any inconsistency between them.
(5) In this
Deed—
(a)
every word of the masculine gender will be construed as including the feminine
gender;
(b)
every word of the feminine gender will be construed as including the masculine
gender;
(c)
every word in the singular number will be construed as including the plural
number;
(d)
every word in the plural number will be construed as including the singular
number;
(e)
every word in either of those genders or numbers will be construed as
including a body corporate as well as an individual.
(6) A reference in
this Deed to an Act, regulation, rule or other legislative instrument includes
a reference to—
(a) that
instrument as amended from time to time; and
(b) an
instrument that replaces or supersedes it; and
(c) a
regulation, rule or other instrument, and a written determination or ruling,
made under or in connection with that instrument.
(7) The transfer of
employment of a member from one employer to another employer under the Scheme,
however effected, and whether voluntary or involuntary, will not be taken to
involve the termination of the previous employment and does not give rise to
an immediate or delayed entitlement to benefits under the Scheme.
(8) If a person ceases
employment with 1 employer under the Scheme in order to take up employment
with another employer under the Scheme within 1 month after that
cessation of employment but dies or becomes an invalid before commencing
employment with that other employer, the person will be taken to have
terminated his or her employment for reason of such death or invalidity on the
date of the cessation of his or her employment with the first employer.
(9) In
subclauses (7) and (8)—
employer —
(a)
includes a person or body who was not an employer for the purposes of this
Deed until the employment of the member referred to in that subclause was
transferred to the person or body; but
(b) does
not include a person or body if the member referred to in the subclause is
employed by the person or body in another State or a Territory (unless the
person or body has commenced making payments on behalf of the member or has
otherwise agreed with the Board to be treated as an employer for the purposes
of subclause (7));
transfer of employment —
(a) a
transfer of employment includes a case where a member resigns his or her
employment with 1 employer under the Scheme and commences employment with
another employer under the Scheme; and
(b) a
person will be taken to have transferred his or her employment if, and only
if—
(i)
the person's employment with a new employer under the
Scheme commenced within 1 month after the cessation of employment with
his or her previous employer under the Scheme; or
(ii)
the person—
(A) ceased his or her employment with
1 employer under the Scheme and commenced employment with another
employer under the Scheme before the commencement of the amending Act; and
(B) is taken by the Board to have
transferred his or her employment.
(10)
Subclause (9) applies as follows:
(a)
paragraph (b) of the definition of employer applies both prospectively
and retrospectively;
(b) the
definition of transfer of employment applies—
(i)
in relation to a person who has, before the commencement
of the amending Act, been paid, or elected to preserve, a benefit on account
of the cessation of his or her employment with an employer under the
Scheme—prospectively only; and
(ii)
in relation to any other person—both prospectively
and retrospectively.
3—Continuation of Scheme
(1) The ETSA
Contributory Superannuation Scheme continues in existence under the name
Electricity Industry Superannuation Scheme .
(2) The ETSA
Non-Contributory Superannuation Scheme continues in existence as a division of
the Electricity Industry Superannuation Scheme.
(3) Subject to
subclause (2), the Scheme will be treated as made up of the divisions
specified in the Rules.
(4) The Trustee may
divide the Scheme assets into divisions according to the different investments
that may be made of those assets.
(5) The Scheme assets
will be allocated to the divisions of the Scheme in accordance with the Rules.
4—Rules of the Scheme
(1) Subject to the
relevant law, the Trustee may, by instrument in writing, vary or replace the
Rules.
(2) The
Subordinate Legislation Act 1978 does not apply to, or in relation to,
rules made under this clause.
(3) The Rules must
conform with the provisions of the Schedule and this Trust Deed.
(4) Where the
variation or replacement of a rule would result in an increase in the
contribution to be made by an employer or increase the liability of the
employer under the Scheme in any other way, the rule cannot be varied or
replaced without the approval of the employer.
(5) A variation or
replacement of the Rules will be taken to come into operation on the date
specified in the instrument varying or replacing the Rules whether being a
date before or after the date on which the instrument was made.
(6) The Rules may
confer discretionary powers.
5—Reduction in benefits on changes in taxation
(1) Subject to
subclause (3), where the cost to employers of maintaining the existing
level of benefits is increased by a change in the incidence of taxation
occurring after the Scheme loses its status as a constitutionally protected
fund under the Income Tax Assessment Act 1936 of the Commonwealth, the
level of benefits is reduced to the extent necessary to avoid an increase in
that cost.
(2) The extent of the
reduction in the level of benefits under subclause (1) must be determined
by the Trustee on the advice of an actuary.
(3) If the Trustee and
all the employers agree that subclause (1) will operate to reduce the
level of benefits to a lesser extent than is provided by that subclause, the
subclause will operate in accordance with the agreement.
6—Membership of the Scheme
(1) The following
persons are members of the Scheme:
(a)
subject to subclause (2), a person who was a contributor under the
repealed Schedule immediately before the commencement of this Deed; and
(b) a
person who was a member of the non-contributory scheme under the repealed
Schedule immediately before the commencement of this Deed; and
(c) all
other persons who are accepted as members of the Scheme pursuant to the Rules.
(2) A contributor who
died before the commencement of this Deed is a former member of the Scheme for
the purposes of this Deed.
(3) A person ceases to
be a member of the Scheme on death or when his or her rights in relation to
superannuation under the Scheme have been exhausted.
(4) A person who has,
before the commencement of the amending Act—
(a)
accepted an offer of public sector employment under section 24 of the
Electricity Corporations (Restructuring and Disposal) Act 1999 ; and
(b) been
paid his or her accrued entitlements under the Scheme as at the date of the
cessation of his or her private sector employment,
will be taken to have ceased to be a member of the Scheme when those
entitlements were paid.
8—Payment of benefits
(1) Benefits are
payable from the Scheme assets in accordance with the Rules.
(2) A person who,
whether before or after the commencement of this subclause—
(a) has
been paid, or has elected to preserve, his or her accrued entitlements under
the Scheme as at the date of the cessation of his or her employment with an
employer; and
(b) has
subsequently commenced employment with another employer (the new employer ),
is not entitled to a benefit arising from his or her membership of the Scheme
before the commencement of his or her employment with the new employer (other
than in respect of a preserved benefit).
9—Scheme assets
(1) The Scheme assets
are subject to the management and control of the Trustee.
(2) The Scheme assets
comprise—
(a)
contributions made by the contributors and the employers to the Scheme
pursuant to the Rules; and
(b)
interest and other income and other accretions arising from investment of the
Scheme assets; and
(c)
amounts paid to the Scheme pursuant to clause 14 of the Schedule; and
(d) any
other income or assets transferred to the Scheme as part of the Scheme assets;
and
(e) such
other assets as are required by the Rules to be included in the Scheme assets.
(3) The following
amounts will be paid from the Scheme assets:
(a)
benefits that are payable to, or in respect of, members or former members
pursuant to the Rules; and
(b) the
costs and other expenses of administering the Scheme; and
(c) such
other amounts as are provided for by the Rules.
10—Investment of Scheme assets
(1) The Trustee may
invest money comprising the Scheme assets that is not immediately required in
any manner in which it could invest that money—
(a) if
acting as a trustee; or
(b) if
acting on its own behalf and not as a trustee.
(2) Without limiting
subclause (1), the Trustee may—
(a)
participate in any financial arrangement (usually called a synthetic or
derivative investment) for the purpose of risk management or hedging;
(b) pool
Scheme assets with other persons' assets for investment purposes.
18—Accounts
(1) The Trustee must
keep proper accounts of receipts and payments in relation to the Scheme and
must, in respect of each financial year, prepare financial statements in
relation to the Scheme.
(2) Subject to
subclause (2a), the Auditor-General must, on an annual basis, audit the
accounts and financial statements referred to in subclause (1).
(2a) The
Auditor-General may, as the Auditor-General thinks fit, appoint or authorise
another person to conduct an audit on behalf of, or instead of, the
Auditor-General.
(3) The Trustee must,
in accordance with the relevant law, appoint an actuary to prepare reports in
relation to the Scheme in accordance with that law.
12—Insurance
The Trustee may purchase and renew insurance of any kind for the purposes of
the Scheme and may pay all insurance premiums from the Scheme assets.
13—Exclusion of liability and indemnity
(1) The Trustee and
the members and former members, or members or former members of the governing
body, of the Trustee and employees and former employees of the Trustee are not
liable in relation to any act or omission in connection with the
administration of the Scheme or the Scheme assets in compliance, or purported
compliance, with the Schedule, this Deed or the Rules except to the extent
that the person—
(a)
fails to act honestly; or
(b)
intentionally or recklessly fails to exercise proper care and diligence.
(2) If, despite
subclause (1), a person referred to in that subclause incurs a liability
which the subclause purportedly protects him or her from, the person will be
indemnified in respect of that liability from the Scheme assets.
14—Benefits cannot be assigned
A right to a benefit under the Scheme cannot be assigned.
15—Governing law
This Deed is governed by the law of South Australia.
16—Severance of invalid provision
Any provision of this Deed that is—
(a)
invalid in whole or in part; or
(b)
required to be limited or read down in order to be valid,
is severed or limited or read down to the extent of the invalidity, but the
remainder of the provision continues in full force and effect.
17—Withdrawal of employers and winding up of the Scheme
(1) Subject to this
clause, an employer may withdraw from the Scheme in accordance with the Rules.
(2) An employer who
employs one or more pre-privatisation members of the Scheme in the electricity
supply industry cannot withdraw from the Scheme without the consent in writing
of the member or members concerned.
(2a) A gas trading
company that employs one or more pre-privatisation members of the Scheme
cannot withdraw from the Scheme without the consent in writing of the member
or members concerned.
(3) If all the
employers have withdrawn from the Scheme the Trustee must wind the Scheme up
in accordance with the Rules.