This Act may be cited as the Superannuation Schemes Act 1989.
(2)
Section 32 of this Act shall come into force on the 1st day of April 1990.
(3)
Except as provided in subsection (2) of this section, this Act shall come into force on the day on which it receives the Royal assent.
2-
Interpretation
(1)
In this Act, unless the context otherwise requires,—
Actuary means a person who is a Fellow of the New Zealand Society of Actuaries
Administration manager, in relation to any superannuation scheme, means the person (if any) to whom the trustees have contracted some or all of the administration of the scheme
Auditor means a chartered accountant (within the meaning of section 19 of the Institute of Chartered Accountants of New Zealand Act 1996)
Auditor: substituted, as from 1 October 1996, by section 23 Institute of Chartered Accountants of New Zealand Act 1996 (1996 No 39).
Beneficiary, in relation to any superannuation scheme, means—
(a)
A natural person who is eligible to receive a benefit from the scheme:
(b)
The trustee of another registered superannuation scheme which is eligible to receive a benefit from the scheme:
Beneficiary: this definition was substituted, as from 1 August 1990, by section 2(1) and (2) respectively, Superannuation Schemes Amendment Act 1990 (1990 No 67).
Benefit means any lump sum, annuity, pension, allowance, refund, or other payment arising from membership of a superannuation scheme
complying fund rules means complying fund rules, as defined in section OB 1 of the Income Tax Act 2004
complying fund rules: this definition was inserted, as from 18 December 2006, by section 235 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).
Employee means any person who is engaged to work, or works, under a contract of service or apprenticeship with an employer
Employer means any person who pays, or is liable to pay, to any person (being an employee within the meaning of this subsection) any earnings as an employee
Government Actuary includes any person for the time being authorised by delegation by the Government Actuary to exercise or perform any of the powers or functions of the Government Actuary
Investment manager, in relation to any superannuation scheme, means a person (if any) to whom the trustees have contracted the investment of some or all of the funds of the scheme
KiwiSaver scheme has the meaning given to it in the KiwiSaver Act 2006
KiwiSaver scheme: this definition was inserted, as from 1 December 2006, by section 231 KiwiSaver Act 2006 (2006 No 40). See section 232 of that Act as to the transitional provision requiring all KiwiSaver contributions to be paid to the Commissioner in the first 3 months. See clause 2(2) KiwiSaver Act Commencement Order 2006 (SR 2006/357).
Member, in relation to any superannuation scheme, means—
(a)
A natural person who has been admitted to membership of the scheme and who is, or may become, entitled to benefits under the scheme:
(b)
The trustees of another registered superannuation scheme which has been admitted to membership of the scheme and which is, or may become, entitled to benefits under the scheme:
Member: this definition was substituted, as from 1 August 1990, by section 2(1) and (2) respectively, Superannuation Schemes Amendment Act 1990 (1990 No 67).
participation agreement has the meaning given to it in section 4(1) of the KiwiSaver Act 2006
Registered superannuation scheme or registered scheme means a superannuation scheme that, for the time being, is registered under this Act
Solicitor means a person enrolled as a barrister and solicitor of the Court under or by virtue of the Law Practitioners Act 1982
superannuation scheme or scheme has the meaning given to it in section 2A
Superannuation scheme or scheme: this definition was amended, as from 1 August 1990, by section 2(3) Superannuation Schemes Amendment Act 1990 (1990 No 67) by inserting the words “or paying benefits to persons who are the trustee of a registered superannuation scheme”.
Superannuation scheme or scheme: this definition was substituted, as from 1 December 2006, by section 231 KiwiSaver Act 2006 (2006 No 40). See section 232 of that Act as to the transitional provision requiring all KiwiSaver contributions to be paid to the Commissioner in the first 3 months. See clause 2(2) KiwiSaver Act Commencement Order 2006 (SR 2006/357).
Trustees,—
(a)
In relation to a superannuation scheme established under a trust deed, means the persons who are designated as such in the trust deed, or the successors of those trustees, and who have the responsibility for administering the trusts governing the superannuation scheme:
(b)
In relation to a superannuation scheme constituted under an Act of the Parliament of New Zealand, means the person or persons appointed to administer the scheme:
Trust deed means the trust deed that sets out the trusts governing a superannuation scheme, as amended from time to time.
(2)
For the purposes of this Act and any regulations made under this Act, a superannuation scheme shall be deemed to operate on the principle of unallocated funding if the contributions to the scheme are not allocated on a defined basis to individual members.
Section 2(1) participation agreement: inserted, on 19 December 2007, by section 105 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).
2A
Definition of superannuation scheme
(1)
In this Act, unless the context otherwise requires, superannuation scheme or scheme—
(a)
means—
(i)
any trust established by its trust deed principally for the purpose of providing retirement benefits to beneficiaries who are natural persons or paying benefits to persons who are the trustees of a registered superannuation scheme or a KiwiSaver scheme; or
(ii)
any arrangement constituted under an Act of the Parliament of New Zealand, other than the Social Security Act 1964, principally for the purpose of providing retirement benefits to natural persons; but
(b)
does not include any scheme that is registered as a KiwiSaver scheme.
(2)
In Acts other than this Act, superannuation scheme or scheme includes a KiwiSaver scheme to the extent set out in section 118 of the KiwiSaver Act 2006.
Section 2A was inserted, as from 1 December 2006, by section 231 KiwiSaver Act 2006 (2006 No 40). See section 232 of that Act as to the transitional provision requiring all KiwiSaver contributions to be paid to the Commissioner in the first 3 months. See clause 2(2) KiwiSaver Act Commencement Order 2006 (SR 2006/357).
Applications for registration of scheme governed by trust deed
(1)
The trustees of any superannuation scheme—
(a)
That is governed by a trust deed that is interpreted and administered in accordance with New Zealand law; and
(b)
That has at least one trustee who is a New Zealand resident,—
may apply to the Government Actuary for registration of the scheme.
(2)
Every such application shall be accompanied by a copy of the trust deed and of every amendment to the trust deed.
4-
Applications for registration of scheme constituted under Act of Parliament
(1)
The person appointed to administer any superannuation scheme that is constituted under an Act of the Parliament of New Zealand may apply to the Government Actuary for registration of the scheme.
(2)
Every such application shall be accompanied by a copy of the Act of Parliament and any other documents governing the scheme.
5-
Matters required to be specified in application
Every application for registration shall specify the matters set out in Schedule 1 to this Act.
6-
Registration of schemes
(1)
The Government Actuary shall register a scheme within 14 days after receiving the application and the documents required to accompany the application.
(2)
The registration shall be deemed to take effect on whichever date is the latest of—
(a)
The commencement date of the scheme:
(b)
The date on which the Government Actuary received the application and the documents required to accompany the application:
(c)
Such date as may be determined by agreement between the trustees and the Government Actuary.
The trust deed of every registered superannuation scheme shall specify the following matters:
(a)
The conditions of entry of members to the scheme:
(b)
The conditions as to termination of membership of the scheme:
(c)
The contributions payable:
(d)
The conditions under which benefits become payable and the way in which the benefits are to be determined:
(e)
The number of trustees, and provision for their appointment and retirement:
(f)
The circumstances in which the scheme may be wound up, and the way in which the assets of the scheme are to be distributed in the event of a winding up.
8-
Implied provisions as to investment of scheme money
The following provisions shall be implied in every trust deed of a registered superannuation scheme:
(a)
That all money belonging to the scheme and available for investment shall be invested in accordance with the provisions of the Trustee Act 1956 as to the investment of trust funds; and
(b)
That, notwithstanding anything to the contrary in section 13D(1) of that Act, the trustees and any investment manager of the scheme shall, in exercising the power of investment, exercise the care, diligence, and skill required of that person by section 13B or section 13C of that Act, as is applicable.
9-
Implied provision as to amendments reducing accrued benefits, etc
There shall be implied in every trust deed of a registered superannuation scheme a provision that no amendment of the trust deed which would have the effect of—
(a)
Reducing, postponing or otherwise adversely affecting the benefits, whether vested, contingent, or discretionary, that may in due course flow from, or are attributable to, membership of the scheme up to the date the amendment is made; or
(b)
Removing any right of the members or other beneficiaries to participate in the management of the scheme; or
(c)
Increasing the contributions, fees, or charges payable by any member; or
(d)
Providing for the reversion of any assets of the scheme to any employer to any greater extent than already provided for in the trust deed,—
shall be made without the written consent of every member, and of every other beneficiary who is in receipt of a benefit under the scheme at the date the amendment is made, who would be adversely affected by the amendment.
9A
Implied provision as to alterations to scheme
There shall be implied in every trust deed of a registered superannuation scheme a provision that no alteration to the scheme that—
(a)
Would be contrary to or have the effect of nullifying or reversing or amending any matter stated in the trust deed, or any provision implied in the trust deed by this Act; or
(b)
Would have the effect of extending or varying or limiting the scope of the trust deed in any material particular—
shall be effected otherwise than by way of amendment to the trust deed in accordance with section 12 of this Act.
Sections 9A and 9B were inserted, as from 1 August 1990, by section 2 Superannuation Schemes Amendment Act (No 2) 1990 (1990 No 80).
9B
Implied provision as to transfer of members, etc
(1)
There shall be implied in every trust deed of a registered superannuation scheme a provision that no member or beneficiary of the superannuation scheme will be transferred to another superannuation scheme without the written consent of the member or beneficiary concerned.
(1A)
This section is subject to section 9BAA.
(2)
The trustees of each registered superannuation scheme affected must notify the persons described in subsection (2A) in accordance with subsection (2B) if it is proposed to transfer (whether at the same time or over an extended period) all or a substantial number of members or beneficiaries—
(a)
from a registered superannuation scheme to any other superannuation scheme; or
(b)
from a superannuation scheme to a registered superannuation scheme.
(2A)
The persons referred to in subsection (2) are—
(a)
all members and beneficiaries of each registered superannuation scheme (other than those members and beneficiaries that, in the opinion of the Government Actuary, are not likely to be materially affected by the proposed transfer referred to in that subsection); and
(b)
the Government Actuary.
(2B)
At least 1 month before the date by which the written consent of members and beneficiaries to a proposed transfer referred to in subsection (2) must be received by the trustees of each registered superannuation scheme affected,—
(a)
the trustees must notify the members and beneficiaries described in subsection (2A)(a) in writing of—
(i)
the proposed transfer and its implications for members and beneficiaries; and
(ii)
the date on which the proposed transfer is to occur; and
(iii)
the date by which the written consent of members and beneficiaries to the proposed transfer must be received by the trustees; and
(iv)
the fact that a copy of the notice has been forwarded to the Government Actuary; and
(b)
the trustees must notify the Government Actuary in writing of—
(i)
the proposed transfer and its implications for members and beneficiaries; and
(ii)
the date on which the proposed transfer is to occur; and
(iii)
the date by which the written consent of members and beneficiaries to the proposed transfer must be received by the trustees.
(3)
The giving of notice under subsection (2) of this section shall not derogate from the need to comply with any other provision of this Act.
(4)
For the purposes of section 20 of this Act, and without limiting the provisions of that section, it shall be a ground for the Government Actuary to have reasonable cause to believe that a particular registered scheme to which members are transferred fails to meet the requirements of this section if—
(a)
Over any 12 month period, either—
(i)
Twenty percent or more of the members or beneficiaries of any other superannuation scheme are transferred to the particular registered scheme; or
(ii)
The number of members or beneficiaries of the particular registered scheme is increased by 20 percent or more by reason of any transfer of members and beneficiaries from any other scheme; and
(b)
The members and beneficiaries of the particular registered scheme have not been notified of the transfer, or any notification given has not adequately set out the implications of the transfer.
(5)
For the purpose of this section, references to the transfer of members or beneficiaries from one scheme to another include references to transfers of members or beneficiaries from one section of a registered scheme to another section of the same scheme.
Sections 9A and 9B were inserted, as from 1 August 1990, by section 2 Superannuation Schemes Amendment Act (No 2) Act 1990 (1990 No 80).
Subsection (1A) was inserted, as from 1 December 2006, by section 231 KiwiSaver Act 2006 (2006 No 40). See section 232 of that Act as to the transitional provision requiring all KiwiSaver contributions to be paid to the Commissioner in the first 3 months. See clause 2(2) KiwiSaver Act Commencement Order 2006 (SR 2006/357).
Subsection (2) was substituted, and subsections (2A) and (2B) were inserted, as from 3 May 2001, by section 3 Superannuation Schemes Amendment Act 2001 (2001 No 26).
9BBA
When Government Actuary may approve transfers without consent of members and beneficiaries
(1)
The requirement in section 9B to obtain the written consent of all or any of the members and beneficiaries of a scheme does not apply if the Government Actuary approves the transfer under this section.
(1B)
This section applies despite anything to the contrary in a scheme's trust deed.
(2)
The Government Actuary may approve the transfer if, and only if, the Government Actuary is satisfied that—
(a)
the terms and conditions of the scheme to which the members or beneficiaries are to be transferred (new scheme) are no less favourable to members or beneficiaries than the terms and conditions of the scheme from which they are being transferred (old scheme); and
(b)
the transfer is otherwise reasonable in all the circumstances (including having regard to the value of the assets transferred from the old scheme to the new scheme); and
(c)
the procedure in section 9BAB has been followed.
(3)
The Government Actuary may decline to approve a transfer if the Government Actuary considers that the transfer would adversely affect the interests of all or any of the members and beneficiaries of the old scheme in any material way.
(4)
In determining whether subsection (2) or (3) applies, the Government Actuary may—
(a)
have regard to the likely effect of the new scheme on benefits to members and beneficiaries as a whole; and
(b)
have regard to any other matter that the Government Actuary considers relevant.
(4B)
For a transfer that the Government Actuary has approved,—
(a)
each relevant member of the old scheme is treated as offering to be a member of the new scheme on the terms and conditions for that new scheme; and
(b)
the trustee of the new scheme is treated as accepting the member's offer.
(5)
For the purpose of this section, references to the transfer of members or beneficiaries from one scheme to another include references to transfers of members or beneficiaries from one section of a registered scheme to another section of the same scheme.
Sections 9A and 9B were inserted, as from 1 August 1990, by section 2 Superannuation Schemes Amendment Act (No 2) Act 1990 (1990 No 80).
Subsection (1A) was inserted, as from 1 December 2006, by section 231 KiwiSaver Act 2006 (2006 No 40). See section 232 of that Act as to the transitional provision requiring all KiwiSaver contributions to be paid to the Commissioner in the first 3 months. See clause 2(2) KiwiSaver Act Commencement Order 2006 (SR 2006/357).
Subsection (2) was substituted, and subsections (2A) and (2B) were inserted, as from 3 May 2001, by section 3 Superannuation Schemes Amendment Act 2001 (2001 No 26).
9BAB
How approval under section 9BAA may be granted
(1)
The Government Actuary may accept an application for approval under section 9BAA that is made by all or any of the trustees of the old scheme, the trustees of the new scheme, or a relevant employer, provided that the Government Actuary is satisfied that—
(a)
it is reasonable in all of the circumstances of the case that the person have standing to make the application; and
(b)
the person falls within a class specified in any guidelines published by the Government Actuary (if any) for the purposes of this subsection.
(2)
The Government Actuary may require the applicant to give the Government Actuary, with the application or at any later time,—
(a)
a certificate, signed by a person of any class specified by the Government Actuary, that the transfer meets the requirements of section 9BAA; and
(b)
any other information about the new scheme, the old scheme, or the transfer.
(3)
The applicant must give notice to every member and beneficiary to whom the transfer will relate—
(a)
that the applicant has applied for approval to transfer the members and beneficiaries without their written consent; and
(b)
that the member or beneficiary may make submissions to the Government Actuary about the transfer.
(4)
The Government Actuary must have regard to any submission before deciding whether or not to give approval.
(5)
The Government Actuary may give approval subject to any terms and conditions that the Government Actuary may specify in the notice of approval, and the approval is effective only if the transfer is carried out in accordance with those terms and conditions.
(6)
To avoid doubt, any approval given under this section is subject to section 23.
Sections 9BAA and 9BAB were inserted, as from 1 December 2006, by section 231 KiwiSaver Act 2006 (2006 No 40). See section 232 of that Act as to the transitional provision requiring all KiwiSaver contributions to be paid to the Commissioner in the first 3 months. See clause 2(2) KiwiSaver Act Commencement Order 2006 (SR 2006/357).
