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Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Bill 2008

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2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

SUPERANNUATION LEGISLATION AMENDMENT (TRUSTEE BOARD AND OTHER MEASURES) (CONSEQUENTIAL AMENDMENTS) BILL 2008

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for Superannuation and Corporate Law,

Senator the Hon Nick Sherry)

 

 



 

GENERAL OUTLINE

 

SUPERANNUATION LEGISLATION AMENDMENT (TRUSTEE BOARD AND OTHER MEASURES) (CONSEQUENTIAL AMENDMENTS) BILL 2008

 

OUTLINE

 

The main purpose of the Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Bill 2008 (the Bill) is to make amendments to a range of legislation as a consequence of:

·                the introduction, on 1 July 2005, of the Public Sector Superannuation Accumulation Plan (PSSAP);

·                the establishment, on 1 July 2006, of a single Superannuation Board, named the Australian Reward Investment Alliance (ARIA), to administer the Commonwealth Superannuation Scheme (CSS), the Public Sector Superannuation Scheme (PSS) and the PSSAP;

·                introduction of the new regime for managing legislative instruments provided for under the Legislative Instruments Act 2003 (LI Act); and

·                the requirement to use ordinary time earnings (OTE) to calculate employer Superannuation Guarantee (SG) obligations from 1 July 2008.

 

The Bill also proposes to remove the requirement in the Superannuation Act 1976 (the 1976 Act) that interest determinations be gazetted and make some minor technical amendments.

 

Introduction of the PSSAP

 

On 1 July 2005 the Superannuation Act 2005 (2005 Act) provided for the establishment, by Trust Deed, of the PSSAP, which replaced the CSS and the PSS as the main Australian Government civilian superannuation scheme for new employees.

 

The 2005 Act contains provisions relating to benefit entitlements arising from invalidity that mirror provisions in the 1976 Act and the Superannuation Act 1990 (1990 Act).  However, unlike the 1976 Act and 1990 Act, the provisions have not been recognised in a number of Acts.  To ensure consistency and transparency with arrangements for the 1976 Act and the 1990 Act, it is desirable to include in these Acts equivalent provisions to recognise the invalidity requirements of the 2005 Act.

 

Single Superannuation Board

 

On 1 July 2006 the Superannuation Legislation Amendment (Trustee Board and Other Measures) Act 2006 consolidated the governance arrangements for the CSS, the PSS and the PSSAP under one trustee board, called ARIA.

 

There are some 27 Commonwealth Acts that make references to the previous CSS and PSS Boards.  Schedule 1 to the Bill includes consequential amendments to those Acts to recognise ARIA by replacing the references to the previous CSS and PSS Boards with ARIA.

 

Legislative Instruments Act

 

The LI Act introduced a comprehensive regime for the making, registration, parliamentary scrutiny and sun-setting of Commonwealth delegated legislation from 1 July 2005.  It replaced provisions in the Acts Interpretation Act 1901 (AI Act) that dealt with the making and parliamentary scrutiny of instruments.

 

As a result, amendments to the superannuation Acts are required to remove out-of-date references to the AI Act and concepts under that Act.  Amendments are also required to clarify that those instruments that were disallowable under the AI Act before these amendments are made continue to be subject to disallowance.

 

The Bill makes a number of technical amendments to the Parliamentary Contributory Superannuation Act 1948 , the Superannuation Act 1922 , the 1976 Act, the 1990 Act and the Superannuation (Productivity Benefit) Act 1988 (PB Act) as a consequence of the LI Act.

 

Removal of requirement to gazette interest determinations

 

ARIA makes periodic determinations of interest on investment earnings that apply to members’ accounts.  Those rates are published on the scheme websites (generally on the business day immediately after the rates become effective).

 

Interest determinations for the CSS, PSS and the PSSAP have been exempted from the requirements of the LI Act because of the undue burden of registering the instruments, and because they are published on the scheme websites.

 

However, the 1976 Act still contains an outdated requirement to gazette CSS interest determinations, which does not exist in relation to the PSS and the PSSAP.  In these circumstances, compliance with the requirement that each CSS interest determination must be gazetted would be both onerous and expensive. 

 

The Bill, therefore, proposes that the requirement for gazettal be removed from the 1976 Act.  ARIA has given undertakings that it will continue to publish the interest rates on the scheme websites.

 

Amendments to replace an incorrect reference

 

An amendment to the 1976 Act is required to replace an incorrect reference to the Minister in section 110C with a reference to the Board.  That section refers to a declaration by the Minister under section 110D.  The amendment is required because only the Board is able to make a declaration under section 110D.

 

Amendment to remove a redundant provision

 

Subsection 4(2) of the 1990 Act provides for the establishment of the PSS by trust deed in the form set out in the Schedule to the Act.  However, retaining the original form of the trust deed as a Schedule to the 1990 Act is unnecessary and can be misleading as it does not reflect any changes made to the Trust Deed since 1990.

 

The amendments propose to remove the Schedule to the 1990 Act by repealing section 4 of that Act which requires the Trust Deed to be in the form of a Schedule of the Act.

 

Requirement to use ordinary time earnings when calculating SG obligations

 

From 1 July 2008, the Superannuation Guarantee (Administration) Act 1992 (SG Act) will require employers to use OTE when calculating their SG obligations in all cases.

 

For a defined benefit scheme like CSS, the employer SG obligation is reflected through the minimum benefit payable by an employer in respect of an employee.  The minimum benefit under the CSS is calculated based on superannuation salary defined under the 1976 Act, which varies and can be lower than the amount calculated using OTE.

 

The Bill proposes amendments to the 1976 Act that will enable the Minister for Finance and Deregulation to make Regulations under that Act, when necessary, to ensure that the CSS complies with requirements under the SG Act, including complying with the OTE method from 1 July 2008.  No changes are required to the 1990 Act as these will be made by amending the PSS Rules.

 

Amendments are also proposed to the PB Act to allow, where necessary, an additional contribution to be paid by an employer to avoid an individual SG shortfall in respect of the employee covered by that Act.

·          This will ensure that employers contributing under the PB Act can meet their SG obligations from 1 July 2008.

·          The proposed amendment will also ensure that employees whose superannuation is provided under the PB Act will not be disadvantaged in circumstances where the current method of calculating benefits under the PB Act would result in higher benefits than if the OTE method was used.

 

Financial Implications

 

The amendments relating to the SG will not have a material Budget impact because the change from the current PB Act salary base to the SG earnings base to apply from 1 July 2008 is not significant.  There are no costs associated with the other amendments contained in the Bill.



TERMS USED IN THE NOTES ON CLAUSES

 

 

1976 Act ” means the Superannuation Act 1976 .

 

1990 Act ” means the Superannuation Act 1990 .

 

2005 Act ” means the Superannuation Act 2005 .

 

AI Act ” means Acts Interpretation Act 1901 .

 

ARIA ” means the Australian Reward Investment Alliance.

 

Note: ARIA was formerly known as the PSS Board, and has also taken over the functions of the now abolished CSS Board.  Prior to 1 July 1995 the PSS Board was known as the Commonwealth Superannuation Board of Trustees No. 1, and the CSS Board was known as the Commonwealth Superannuation Board of Trustees No. 2.

 

Bill ” means the Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Bill 2008.

 

Commonwealth Superannuation Board of Trustees No. 1 ”  See the note under the definition of “ARIA” above.

 

Commonwealth Superannuation Board of Trustees No. 2 ”  See the note under the definition of “ARIA” above.

 

CSS ” means the Commonwealth Superannuation Scheme established under the 1976 Act.

 

CSS Board ”  See the note under the definition of “ARIA” above.

 

LI Act ” means the Legislative Instruments Act 2003 .

 

OTE ” or “ ordinary time earnings ” means the earnings on an employee’s ordinary hours of work.  It is an employee’s default earnings base for SG purposes and is defined in the Superannuation Guarantee (Administration) Act 1992 and in rulings issued by the Australian Taxation Office.

 

PB Act ” means the Superannuation (Productivity Benefit) Act 1988 .

 

PSS ” means the Public Sector Superannuation Scheme established by Trust Deed under the 1990 Act.

 

“PSS Board”   See the note under the definition of “ARIA” above.

 

PSSAP ” means the Public Sector Superannuation Accumulation Plan established under the 2005 Act.

 

PSS Trust Deed ” means the Trust Deed made under section 4 of the 1990 Act.

 

PSSAP contributory member ” means a person whose employer is required to make contributions to the PSSAP for the benefit of the person in accordance with the rules of the scheme.

 

SG ” means Superannuation Guarantee.  The SG is a system which requires employers to provide a minimum level of superannuation support for most employees.

 

SG Act ” means the Superannuation Guarantee (Administration) Act 1992 .

 

SRP Act ” means the Statutory Rules Publication Act 1903 .

 

 



 

NOTES ON CLAUSES

 

Clause 1:        Short title

 

Clause 1 provides for the short title of the Act to be the Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Act 2008.

 

Clause 2:        Commencement

 

2.       Clause 2 is the commencement provision for the Bill.  The commencement dates for specific provisions are included in the table in subclause 2(1).

 

3.       Item 1 of the table provides that the Act, except for the Schedules, commences on the day on which it receives Royal Assent.

 

4.       Item 2 of the table provides that Schedules 1 to 3 commence on the day on which the Act receives Royal Assent.

 

5.       Item 3 of the table provides that items 1 and 2 of Schedule 4 commence on the day on which the Act receives Royal Assent.

 

6.       Item 4 of the table provides that items 3 to 7 of Schedule 4 commence on 1 July 2008 to coincide with the commencement of changes to the Superannuation Guarantee (Administration) Act 1992 which will require employers to use ordinary time earnings as the earnings base for an employee when calculating their Superannuation Guarantee obligations in all cases.

 

Clause 3:        Schedule(s)

 

7.       Clause 3 provides that each Act specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned.

 

 

SCHEDULE 1 - MAIN AMENDMENTS

 

8.       Schedule 1 contains amendments to a range of legislation to reflect the introduction of the PSSAP and the consolidation of the governance arrangements for the main superannuation schemes for Australian Government civilian employees.

9.       The PSSAP commenced on 1 July 2005 and replaced the PSS as the main superannuation scheme for new Australian Government employees and office holders.  The PSSAP was established by trust deed made under the Superannuation Act 2005 . The Schedule includes amendments to a number of other Acts to include appropriate references to the PSSAP or the 2005 Act.

 

 

10.     Many Commonwealth Acts include employment or appointment conditions for Australian Government employees and office holders, including in relation to the termination of that employment or appointment on invalidity grounds.  Section 43 of the 2005 Act provides that those provisions can not be applied to a PSSAP contributory member who is under age 60 unless ARIA has approved the retirement and certified that the member will be eligible for a PSSAP invalidity benefit on that retirement.

11.     Section 43 of the 2005 Act applies notwithstanding anything contained in any Act, award, determination, agreement or contract of employment.  The Schedule includes amendments to various Acts to emphasise the conditions imposed on invalidity retirements by section 43 of the 2005 Act.  These changes will ensure that those requirements are not overlooked when consideration is given to the possible invalidity retirement of a PSSAP contributory member.

12.     In each case similar provisions are already included in the Acts in relation to the invalidity retirements of a member of the CSS or the PSS.  The legislation providing for the CSS and the PSS, the 1976 Act and the 1990 Act respectively, includes similar provisions to section 43 of the 2005 Act in relation to the members of those schemes.

13.     The Schedule also includes changes to various Acts to reflect the consolidation of the governance arrangements for the CSS, the PSS and the PSSAP under the one trustee, ARIA, from 1 July 2006.  Before that date the CSS Board was the trustee for the CSS while the PSS Board was the trustee for the PSS and the PSSAP.  On 1 July 2006 the functions of the CSS Board were transferred to the PSS Board, which was renamed ARIA.

14.     Many Commonwealth Acts include references to the trustees of the PSS and the CSS.  Amendments made by the Schedule update any reference to the PSS and the CSS Boards, including references to those Boards under their earlier names of the Commonwealth Superannuation Board of Trustees No 1 for the PSS Board and the Commonwealth Superannuation Board of Trustees No 2 for the CSS Board.

 

 

Administrative Appeals Tribunal Act 1975 (AAT Act)

 

Items 1, 4, 5 and 8 - Invalidity retirement of PSSAP members

 

15.     Item 1 of Schedule 1 inserts paragraph 13(9)(c) in the AAT Act to allow the Governor-General to retire a member of the Administrative Appeals Tribunal who is a PSSAP contributory member, on the ground of incapacity if the member agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 13(14) of the AAT Act inserted by item 4 of Schedule 1.

 

 

 

 

 

16.     Item 5 of Schedule 1 inserts paragraph 24K(3)(c) in the AAT Act to allow the Governor-General to retire a Registrar of the Administrative Appeals Tribunal who is a PSSAP contributory member, on the ground of incapacity if the Registrar agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 24K(6) of the AAT Act inserted by item 8 of Schedule 1.

 

Items 2, 3, 6 and 7 - Introduction of ARIA

 

17.     Items 2 and 6 of Schedule 1 amend subsections 13(12) and 24K(4) of the AAT Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

18.     Items 3 and 7 of Schedule 1 amend subsections 13(13) and 24K(5) of the AAT Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Auditor-General Act 1997 (AG Act)

 

Items 9, 12, 13 and 16 - Invalidity retirement of PSSAP members

 

19.     Item 9 of Schedule 1 inserts paragraph 6(3)(c) in Schedule 1 to the AG Act to allow the Governor-General to retire an Auditor-General who is a PSSAP contributory member, on the ground of incapacity if the Auditor-General agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subclause 6(6) of Schedule 1 to the AG Act inserted by item 12 of Schedule 1.

 

20.     Item 13 of Schedule 1 inserts paragraph 5(3)(c) in Schedule 2 to the AG Act to allow the Governor-General to retire an Independent Auditor who is a PSSAP contributory member, on the ground of incapacity if the Independent Auditor agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subclause 5(6) of Schedule 2 to the AG Act inserted by item 16 of Schedule 1.

 

Items 10, 11, 14 and 15 - Introduction of ARIA

 

21.     Items 10 and 14 of Schedule 1 amend paragraphs 6(4)(b) of Schedule 1 and 5(4)(b) of Schedule 2 to the AG Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

22.     Items 11 and 15 of Schedule 1 amend paragraphs 6(5)(b) of Schedule 1 and 5(5)(b) of Schedule 2 to the AG Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Australian Crime Commission Act 2002 (ACC Act)

 

Items 17, 18, 20 and 21 - Introduction of ARIA

 

23.     Items 17 and 20 of Schedule 1 amend subsections 44(4) and 46H(3) of the ACC Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS. ARIA is the “Board” as defined in the 1976 Act.

 

24.     Items 18 and 21 of Schedule 1 amend subsections 44(5) and 46H(4) of the ACC Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

Items 19 and 22 - Invalidity retirement of PSSAP members

 

25.     Subsection 44(1) of the ACC Actallows the Governor-General to terminate the appointment of the Chief Executive Officer of the Australian Crime Commission because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 44(6) of the ACC Act inserted by item 19 of Schedule 1.

 

26.     Subsection 46H(1) of the ACC Actallows the Governor-General to terminate the appointment of an examiner of the Australian Crime Commission because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 46H(5) of the ACC Act inserted by item 22 of Schedule 1.

 

 

Australian Federal Police Act 1979 (AFP Act)

 

Items 23 and 26 - Invalidity retirement of PSSAP members

 

27.     Subsection 32(1) of the AFP Actallows the Commissioner of Police to retire an Australian Federal Police employee because of physical or mental incapacity.  Subsection 32(3) of the AFP Act provides that AFP employees whose engagement ends and who are not re-engaged for a further period solely due to physical or mental incapacity are taken to be retired under section 32, for the purposes of the 1976 Act and the 1990 Act, at the end of their engagement period.  Item 23 of Schedule 1 amends subsection 32(3) of the AFP Act so that it also applies for the purposes of 2005 Act.

 

28.     However, section 43 of the 2005 Act requires a certificate to first be received from ARIA before certain PSSAP contributory members may be retired on the grounds of invalidity.  This is acknowledged in the new subsection 32(6) of the AFP Act inserted by item 26 of Schedule 1.

 

Items 24, 25, 27 and 28 - Introduction of ARIA

 

29.     Items 24 and 27 of Schedule 1 amend subsection 32(4) and subparagraph (a)(i) of the definition of “superannuation authority” in section 41 of the AFP Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

30.     Items 25 and 28 of Schedule 1 amend subsection 32(5) and paragraph (ab) of the definition of “superannuation authority” in section 41 of the AFP Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Australian Film Commission Act 1975 (AFC Act)

 

Items 29 and 30 - Introduction of ARIA

 

31.     Item 29 of Schedule 1 amends subsection 28H(3) of the AFC Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

32.     Item 30 of Schedule 1 amends subsection 28H(4) of the AFC Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

Item 31 - Invalidity retirement of PSSAP members

 

33.     Subsection 28H(1) of the AFC Actallows the Minister to terminate the appointment of the Chief Executive Officer of the Australian Film Commission because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 28H(5) of the AFC Act inserted by item 31 of Schedule 1.

 

 

 

 

 

 

 

 

Australian Prudential Regulation Authority Act 1998 (APRA Act)

 

Items 32 and 33 - Introduction of ARIA

 

34.     Item 32 of Schedule 1 amends subsection 25(3) of the APRA Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

35.     Item 33 of Schedule 1 amends subsection 25(4) of the AFC Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

Item 34 - Invalidity retirement of PSSAP members

 

36.     Paragraph 25(2)(a) of the APRA Actallows the Governor-General to terminate the appointment of an Australian Prudential Regulation Authority member because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 25(5) of the APRA Act inserted by item 34 of Schedule 1.

 

 

Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act)

 

Items 35 and 38 - Invalidity retirement of PSSAP members

 

37.     Item 35 of Schedule 1 inserts paragraph 51(3)(c) in the ARPANS Act to allow the Governor-General to retire a CEO of the Australian Radiation Protection and Nuclear Safety Agency who is a PSSAP contributory member, on the ground of incapacity if the CEO agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 51(6) of the ARPANS Act inserted by item 38 of Schedule 1.

 

Items 36 and 37 - Introduction of ARIA

 

38.     Item 36 of Schedule 1 amends paragraph 51(4)(b) of the ARPANS Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

39.     Item 37 of Schedule 1 amends paragraph 51(5)(b) of the ARPANS Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

 

 

 

Australian Securities and Investments Commission Act 2001 (ASIC Act)

 

Items 39 and 42 - Invalidity retirement of PSSAP members

 

40.     Item 39 of Schedule 1 inserts paragraph 111(2)(c) in the ASIC Act to allow the Governor-General to retire a full-time member of the Australian Securities and Investments Commission who is a PSSAP contributory member, on the ground of incapacity if the member agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 111(5) of the ASIC Act inserted by item 42 of Schedule 1.

 

Items 40 and 41 - Introduction of ARIA

 

41.     Item 40 of Schedule 1 amends subsection 111(3) of the ASIC Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

42.     Item 41 of Schedule 1 amends subsection 111(4) of the ASIC Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Building and Construction Industry Improvement Act 2005 (BCII Act)

 

Items 43 and 46 - Invalidity retirement of PSSAP members

 

43.     Subsection 24(2) of the BCII Actallows the Minister to terminate the appointment of an Australian Building and Construction Commissioner or Deputy Commissioner because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 24(5) of the BCII Act as inserted by item 46 of Schedule 1 .

 

44.     Item 43 of Schedule 1 makes a consequential amendment to subsection 24(2) of the BCII Act to ensure that it is subject to the new subsection 24(5).

 

Items 44 and 45 - Introduction of ARIA

 

45.     Item 44 of Schedule 1 amends subsection 24(3) of the BCII Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

46.     Item 45 of Schedule 1 amends subsection 24(4) of the BCII Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Classification (Publications, Films and Computer Games) Act 1995 (Classification Act)

 

Items 47, 50, 51 and 54 - Invalidity retirement of PSSAP members

 

47.     Item 47 of Schedule 1 inserts paragraph 65(3)(c) in the Classification Act to allow the Governor-General to retire a member of the Classification Board who is a PSSAP contributory member, on the ground of incapacity if the member agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 65(5A) of the Classification Act inserted by item 50 of Schedule 1.

 

48.     Item 51 of Schedule 1 inserts paragraph 83(3)(c) in the Classification Act to allow the Governor-General to retire a member of the Classification Review Board who is a PSSAP contributory member, on the ground of incapacity if the member agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 83(6) of the Classification Act inserted by item 54 of Schedule 1.

 

Items 48, 49, 52, and 53 - Introduction of ARIA

 

49.     Items 48 and 52 of Schedule 1 amend subsections 65(4) and 83(4) of the Classification Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

50.     Items 49 and 53 of Schedule 1 amend subsections 65(5) and 83(5) of the Classification Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Crimes (Superannuation Benefits) Act 1989 (CSB Act)

 

Items 55 and 56 - Introduction of ARIA

 

51.     Item 55 of Schedule 1 amends subparagraph (a)(i) of the definition of “superannuation authority” in subsection 2(1) of the CSB Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

52.     Item 56 of Schedule 1 amends paragraph (ab) of the definition of “superannuation authority” in subsection 2(1) of the CSB Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

 

Defence Force Retirement and Death Benefits Act 1973 (DFRDB Act)

 

Item 57 - Introduction of ARIA

 

53.     Item 57 of Schedule 1 amends the definition of “Board” in subsection 3(1) of the DFRDB Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Director of Public Prosecutions Act 1983 (DPP Act)

 

Items 58 and 59 - Introduction of ARIA

 

54.     Item 58 of Schedule 1 amends subsection 23(3) of the DPP Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

55.     Item 59 of Schedule 1 amends subsection 23(4) of the DPP Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

Item 60 - Invalidity retirement of PSSAP members

 

56.     Subsection 23(1) of the DPP Actallows the Governor-General to terminate the appointment of the Director of Public Prosecutions or the Associate Director of Public Prosecutions because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 25(5) of the DPP Act inserted by item 60 of Schedule 1.

 

 

Family Law Act 1975 (FL Act)

 

Items 61 and 64 - Invalidity retirement of PSSAP members

 

57.     Item 61 of Schedule 1 inserts paragraph 38K(3)(c) in the FL Act to allow the Governor-General to retire a Chief Executive Officer of the Family Court who is a PSSAP contributory member, on the ground of incapacity if the Chief Executive Officer agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 38K(6) of the FL Act inserted by item 64 of Schedule 1.

 

 

 

 

 

Items 62 and 63 - Introduction of ARIA

 

58.     Item 62 of Schedule 1 amends subsection 38K(4) of the FL Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

59.     Item 63 of Schedule 1 amends subsection 38K(5) of the FL Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Federal Court of Australia Act 1976 (FCA Act)

 

Items 65, 68, 69 and 72 - Invalidity retirement of PSSAP members

 

60.     Item 65 of Schedule 1 inserts paragraph 18K(3)(c) in the FCA Act to allow the Governor-General to retire a Registrar of the Federal Court of Australia who is a PSSAP contributory member, on the ground of incapacity if the Registrar agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 18K(6) of the FCA Act inserted by item 68 of Schedule 1.

 

61.     Item 69 of Schedule 1 inserts paragraph 37I(2)(c) in the FCA Act to allow the Governor-General to retire an assessor who is a PSSAP contributory member, on the ground of incapacity if the assessor agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 37I(5) of the FCA Act inserted by item 72 of Schedule 1.

 

Items 66, 67, 70 and 71 - Introduction of ARIA

 

62.     Items 66 and 70 of Schedule 1 amend subsections 18K(4) and 37I(3) of the FCA Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

63.     Items 67 and 71 of Schedule 1 amend subsections 18K(5) and 37I(4) of the FCA Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

 

 

 

 

 

Gene Technology Act 2000 (GT Act)

 

Items 73 and 76 - Invalidity retirement of PSSAP members

 

64.     Item 73 of Schedule 1 inserts paragraph 119(4)(c) in the GT Act to allow the Governor-General to retire a Gene Technology Regulator who is a PSSAP contributory member, on the ground of incapacity if the Regulator agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 119(7) of the GT Act inserted by item 76 of Schedule 1.

 

Items 74 and 75 - Introduction of ARIA

 

65.     Item 74 of Schedule 1 amends paragraph 119(5)(b) of the GT Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

66.     Item 75 of Schedule 1 amends subsection 119(6)(b) of the GT Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Inspector-General of Taxation Act 2003 (IGT Act)

 

Items 77 and 80 - Invalidity retirement of PSSAP members

 

67.     Subsection 35(2) of the IGT Actallows the Governor-General to terminate the appointment of Inspector-General of Taxation because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 35(5) of the IGT Act as inserted by item 80 of Schedule 1.

 

68.     Item 77 of Schedule 1 makes a consequential amendment to subsection 35(2) of the IGT Act to ensure that it is subject to the new subsection 35(5).

 

Items 78 and 79 - Introduction of ARIA

 

69.     Item 78 of Schedule 1 amends subsection 35(3) of the IGT Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

70.     Item 79 of Schedule 1 amends subsection 35(4) of the IGT Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

 

Intelligence Services Act 2001 (IS Act)

 

Item 81 - Invalidity retirement of PSSAP members

 

71.     Item 81 of Schedule 1 inserts paragraph 23(3)(c) in the IS Act to allow the Governor-General to retire a Director-General of the Australian Secret Intelligence Service who is a PSSAP contributory member, on the ground of incapacity if the Director-General agrees.  However, before the member may be retired a certificate must be received from ARIA in accordance with section 43 of the 2005 Act.

 

 

Law Officers Act 1964 (LO Act)

 

Items 82 to 85 - Election to cease PSSAP membership

 

72.     Section 14 of the LO Act allows the Solicitor-General the option of remaining in the CSS or the PSS if they had been a member of either of these schemes immediately before being appointed as the Solicitor-General.  Alternatively, the Solicitor-General may elect to cease membership of the CSS or the PSS and have the Judges’ Pensions Act 1968 apply to him or her.  Items 82 to 85 of Schedule 1 extend these provisions to a Solicitor-General who was a PSSAP member immediately before appointment.

 

73.     Item 82 of Schedule 1 amends subparagraph 14(1)(a)(ii) of the LO Act to make a technical change consequential to the new subparagraph 14(1)(a)(iii) inserted by item 83 of Schedule 1 .

 

74.     Item 83 of Schedule 1 amends paragraph 14(1)(a) of the LO Act to insert a new subparagraph (iii) allowing the Solicitor-General to remain a PSSAP contributory member if he or she was such a member immediately before being appointed.

 

75.     Item 84 of Schedule 1 amends subsection 14(2) of the LO Act to insert a new paragraph (c) allowing the Solicitor-General to elect to cease to be a contributory member of the PSSAP.

 

76.     Item 85 of Schedule 1 amends paragraph 14(2B)(b) of the LO Act to insert a new subparagraph (iii) as a consequence of allowing the Solicitor-General an election under the new paragraph 14(2)(c).  Subsection 14(2B) of the LO Act sets out the consequences of the Solicitor-General making an election under subsection 14(2).

 

 

 

 

 

 

 

National Blood Authority Act 2003 (NBA Act)

 

Items 86 and 89 - Invalidity retirement of PSSAP members

 

77.     Item 86 of Schedule 1 inserts paragraph 35(3)(c) in the NBA Act to allow the Minister to retire a General Manager of the National Blood Authority who is a PSSAP contributory member, on the ground of incapacity if the General Manager agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 35(6) of the NBA Act inserted by item 89 of Schedule 1.

 

Items 87 and 88 - Introduction of ARIA

 

78.     Item 87 of Schedule 1 amends paragraph 35(4)(b) of the NBA Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

79.     Item 88 of Schedule 1 amends paragraph 35(5)(b) of the NBA Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Nativ e Title Act 1993 (NT Act)

 

Items 90, 93, 94 and 97 - Invalidity retirement of PSSAP members

 

80.     Item 90 of Schedule 1 inserts paragraph 104(3)(c) in the NT Act to allow the Governor-General to retire a Native Title Registrar who is a PSSAP contributory member, on the ground of incapacity if the Registrar agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 104(6) of the NT Act inserted by item 93 of Schedule 1.

 

81.     Item 94 of Schedule 1 inserts paragraph 119(3)(c) in the NT Act to allow the Governor-General to retire a member of the National Native Title Tribunal, other than a Judge or an assessor, who is a PSSAP contributory member, on the ground of incapacity if the member agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 119(6) of the NT Act inserted by item 97 of Schedule 1.

 

Items 91, 92, 95 and 96 - Introduction of ARIA

 

82.     Items 91 and 95 of Schedule 1 amend subsections 104(4) and 119(4) of the NT Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

83.     Items 92 and 96 of Schedule 1 amend subsections 104(5) and 119(5) of the NT Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Ombudsman Act 1976 (Ombudsman Act)

 

Items 98 and 101 - Invalidity retirement of PSSAP members

 

84.     Item 98 of Schedule 1 inserts a new subsection 28A(5) in the Ombudsman Act to deem an Ombudsman who is removed from office following suspension on the ground of physical or mental incapacity under section 28 of that Act to have been retired on the ground of invalidity, for the purposes of the 2005 Act.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 28A(6) of the Ombudsman Act also inserted by item 98 of Schedule 1.

 

85.     Subsection 28(1) of the Ombudsman Act allows the Governor-General to remove an Ombudsman from office because of physical or mental incapacity in certain circumstances.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 28B(3) of the Ombudsman Act inserted by item 101 of Schedule 1.

 

Items 99 and 100 - Introduction of ARIA

 

86.     Item 99 of Schedule 1 amends subsection 28B(1) of the Ombudsman Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

87.     Item 100 of Schedule 1 amends subsection 28B(2) of the Ombudsman Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Parliamentary Contributory Superannuation Act 1948 (PCS Act)

 

Items 102 to 104 - Introduction of ARIA

 

88.     Items 102 to 104 of Schedule 1 amend subsections 16A(1) and 22Q(5) of the PCS Act to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

 

Productivity Commission Act 1998 (PC Act)

 

Items 105 and 108 - Invalidity retirement of PSSAP members

 

89.     Item 105 of Schedule 1 inserts a new subsection 36(5) in the PC Act to deem a Commissioner or Associate Commissioner who is a PSSAP contributory member who is removed from office on the ground of physical or mental incapacity under section 35 of that Act to have been retired on the ground of invalidity, for the purposes of the 2005 Act on the day of the removal.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 36(6) of the PC Act also inserted by item 105 of Schedule 1.

 

90.     Sections 34 and 35 of the PC Act contain provisions relating to the retirement and termination of appointment of a Commissioner or an Associate Commissioner because of physical or mental incapacity.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 37(3) of the PC Act inserted by item 108 of Schedule 1.

 

Items 106 and 107 - Introduction of ARIA

 

91.     Item 106 of Schedule 1 amends subsection 37(1) of the PC Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

92.     Item 107 of Schedule 1 amends subsection 37(2) of the PC Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Renewable Energy (Electricity) Act 2000 (REE Act)

 

Items 109 and 112 - Invalidity retirement of PSSAP members

 

93.     Item 109 of Schedule 1 inserts paragraph 147(4)(c) in the REE Act to allow the Minister to retire a Renewable Energy Regulator who is a PSSAP contributory member, on the ground of incapacity if the Regulator agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 147(7) of the REE Act inserted by item 112 of Schedule 1.

 

Items 110 and 111 - Introduction of ARIA

 

94.     Item 110 of Schedule 1 amends paragraph 147(5)(b) of the REE Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

95.     Item 111 of Schedule 1 amends paragraph 147(6)(b) of the REE Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

Social Security (Administration) Act 1999 (SSA Act)

 

Items 113 and 116 - Invalidity retirement of PSSAP members

 

96.     Item 113 of Schedule 1 inserts paragraph 17(6)(c) in Schedule 3 to the SSA Act to allow the Governor-General to retire a member of the Social Security Appeals Tribunal who is a PSSAP contributory member, on the ground of incapacity if the member agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subclause 17(11) of Schedule 3 to the SSA Act inserted by item 116 of Schedule 1.

 

Items 114 and 115 - Introduction of ARIA

 

97.     Item 114 of Schedule 1 amends subclause 17(9) of Schedule 3 to the SSA Act to update the reference to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

98.     Item 115 of Schedule 1 amends subclause 17(10) of Schedule 3 to the SSA Act to update the reference to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Superannuation (Consequential Amendments) Act 2005 (SCA Act)

 

Items 117 to 121 - Introduction of ARIA

 

99.     Items 117 to 121 of Schedule 1 amend item 3 of the SCA Act to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Veterans’ Entitlements Act 1986 (VE Act)

 

Items 122, 125, 126 and 129 - Invalidity retirement of PSSAP members

 

100.     Item 122 of Schedule 1 inserts paragraph 164(6)(c) in the VE Act to allow the Governor-General to retire a member of the Veterans’ Review Board who is a PSSAP contributory member, on the ground of incapacity if the member agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 164(10) of the VE Act inserted by item 125 of Schedule 1.

 

101.     Item 126 of Schedule 1 inserts paragraph 188(7)(c) in the VE Act to allow the Governor-General to retire a commissioner of the Repatriation Commission who is a PSSAP contributory member, on the ground of incapacity if the commissioner agrees.  However, a certificate must first be received from ARIA in accordance with section 43 of the 2005 Act.  This is acknowledged in the new subsection 188(11) of the VE Act inserted by item 129 of Schedule 1.

 

Items 123, 124, 127 and 128 - Introduction of ARIA

 

102.     Items 123 and 127 of Schedule 1 amend subsections 164(8) and 188(9) of the VE Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

103.     Items 124 and 128 of Schedule 1 amend subsections 164(9) and 188(10) of the VE Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

 

Workplace Relations Act 1996 (WR Act)

 

Items 130 to 135 - Introduction of ARIA

 

104.     Items 130, 132 and 134  of Schedule 1 amend subsections 35(3), 43(3) and 56(4)  of the WR Act respectively to update the references to the trustee Board for the CSS.  Since 1 July 2006 ARIA has been the trustee for the CSS.  ARIA is the “Board” as defined in the 1976 Act.

 

105.     Items 131, 133 and 135 of Schedule 1 amend subsections 35(4), 43(4) and 56(5) of the WR Act respectively to update the references to the trustee Board for the PSS.  On 1 July 2006 the Board was renamed as ARIA.  ARIA is the “Board” as defined in the 1990 Act.

 

Items 136 to 139 - Election to cease PSSAP membership

 

106.     Section 80 of the WR Act allows a Presidential Member the option of remaining in the CSS or the PSS if they had been a member of either of these schemes immediately before being appointed as a Presidential Member.  Alternatively, a Presidential Member may elect to cease membership of the CSS or the PSS and have the Judges’ Pensions Act 1968 apply to him or her.  Items 136 to 139 of Schedule 1 extend these provisions to a Presidential Member who was a PSSAP member immediately before appointment.

 

107.     Item 136 of Schedule 1 amends subparagraph 80(1)(a)(ii) of the WR Act to make a technical change consequential to the new subparagraph 80(1)(a)(iii) inserted by item 137 of Schedule 1 .

 

108.     Item 137 of Schedule 1 amends paragraph 80(1)(a) of the WR Act to insert a new subparagraph (iii) allowing a Presidential Member to remain a PSSAP contributory member if he or she was such a member immediately before being appointed.

 

109.     Item 138 of Schedule 1 amends subsection 80(2) of the WR Act to insert a new paragraph (c) allowing a Presidential Member to elect to cease to be a contributory member of the PSSAP.

 

110.     Item 139 of Schedule 1 amends paragraph 80(4)(b) of the WR Act to insert a new subparagraph (iii) as a consequence of allowing a Presidential Member an election under the new paragraph 80(2)(c).  Subsection 80(4) of the WR Act sets out the consequences of a Presidential Member making an election under subsection 80(2).

 

 

Item 140 - Meaning of “relevant law”

 

111.     Item 140 of Schedule 1 amends the definition of “relevant law” in section 116 of the WR Act to exclude the 2005 Act.

 



SCHEDULE 2 - TECHNICAL AMENDMENTS RELATING TO LEGISLATIVE INSTRUMENTS

 

112.     On 1 January 2005 the Legislative Instruments Act 2003 (LI Act) introduced a new, comprehensive regime for the making, registration, publication, parliamentary scrutiny and sunsetting of Commonwealth delegated legislation.  Schedule 2 contains technical amendments to certain superannuation Acts as a consequence of the LI Act.

 

113.     One of the features of the LI Act is that it provides a consistent tabling and disallowance regime to facilitate Parliamentary scrutiny of registered legislative instruments.  The LI Act and Legislative Instruments (Transitional Provisions and Consequential Amendments) Act (LITPACA Act) substantially repealed and re-enacted those provisions of the Acts Interpretation Act 1901 (AI Act) that related to the tabling and disallowance of regulations and disallowable instruments and extended their operation to all legislative instruments.

 

114.     The LITPACA Act also repealed the entire Statutory Rules Publication Act 1903 (SRP Act), reflecting the new publication arrangements introduced by the LI Act.

 

 

Parliamentary Contributory Superannuation Act 1948 (PCS Act)

 

Item 1 - Orders are legislative instruments

 

115.     Item 1 of Schedule 2 amends subsection 22CK(1) of the PCS Act to clarify that Orders made under section 22CK of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

Item 2 - Disallowable instruments

 

116.     Item 2 of Schedule 2 repeals subsections 22CK(2) and (3) of the PCS Act, which refer to a repealed provision of the AI Act and to the repealed SRP Act.

 

117.     The repealed subsection 22CK(2) provided that Orders made under section 22CK were disallowable instruments.  Item 2 of Schedule 2 also substitutes a new subsection 22CK(2) to ensure that those Orders continue to be disallowable.  The new subsection 22CK(2) overrides section 44 of the LI Act, which exempts superannuation instruments from disallowance, and provides that the disallowance provisions of section 42 of that Act will apply to Orders made under section 22CK of the PCS Act.

 

 

 

 

 

 

 

Superannuation Act 1922 (1922 Act)

 

Item 3 - Orders are legislative instruments

 

118.     Item 3 of Schedule 2 amends subsection 93DE(1) of the 1922 Act to clarify that Orders made under section 93DE of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

Item 4 - Disallowable instruments

 

119.     Item 4 of Schedule 2 repeals subsections 93DE(2) and (3) of the 1922 Act, which refer to a repealed provision in the AI Act and to the repealed SRP Act.

 

120.     The repealed subsection 93DE(2) provided that Orders made under section 93DE were disallowable instruments.  Item 4 of Schedule 2 also substitutes a new subsection 93DE(2) to ensure that those Orders continue to be disallowable.  The new subsection 93DE(2) overrides section 44 of the LI Act, which exempts superannuation instruments from disallowance, and provides that the disallowance provisions of section 42 of that Act will apply to Orders made under section 93DE of the 1922 Act.

 

 

Superannuation Act 1976 (1976 Act)

 

Items 5, 7, 8, 10, 13, 14, 15, 17, 18, 21, 22, 24, 25 and 27 - Legislative instruments

 

121.     Item 5 of Schedule 2 amends paragraph (a) of the definition of “approved authority” in subsection 3(1) of the 1976 Act to clarify that declarations made for the purposes of that definition are legislative instruments and therefore must meet the requirements of the LI Act.

 

122.     Item 7 of Schedule 2 amends paragraph (ec) of the definition of “eligible employee” in subsection 3(1) of the 1976 Act to clarify that declarations made for the purposes of that paragraph are legislative instruments and therefore must meet the requirements of the LI Act.

 

123.     Item 8 of Schedule 2 amends paragraph (j) of the definition of “eligible employee” in subsection 3(1) of the 1976 Act to clarify that declarations made for the purposes of that paragraph are legislative instruments and therefore must meet the requirements of the LI Act.

 

124.     Item 10 of Schedule 2 amends subsection 3(2A) of the 1976 Act to clarify that declarations made for the purposes of paragraph (b) of the definition of “approved authority” in subsection 3(1) of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

125.     Item 13 of Schedule 2 repeals and substitutes section 110D of the 1976 Act to clarify that declarations made under that section are legislative instruments and therefore must meet the requirements of the LI Act.

 

126.     Item 14 of Schedule 2 amends subsection 110E(1) of the 1976 Act to clarify that declarations made under section 110E of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

127.     Item 15 of Schedule 2 amends subsection 110F(1) of the 1976 Act to clarify that declarations made under section 110F of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

128.     Item 17 of Schedule 2 amends subsection 146MH(1) of the 1976 Act to clarify that Orders made under section 146MH of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

129.     Item 18 of Schedule 2 repeals subsections 146MH(2) and (3) of the 1976 Act, which refer to a repealed provision of the AI Act and to the repealed SRP Act.

 

130.     The repealed subsection 146MH(2) provided that Orders made under section 146MH were disallowable instruments.  Item 18 of Schedule 2 also substitutes a new subsection 146MH(2) to ensure that those Orders continue to be disallowable.  The new subsection 146MH(2) overrides section 44 of the LI Act, which exempts superannuation instruments from disallowance, and provides that the disallowance provisions of section 42 of that Act will apply to Orders made under section 146MH of the 1976 Act.

 

131.     Item 21 of Schedule 2 amends section 167AB of the 1976 Act to omit the term “disallowable instrument” and substitute “legislative instrument” to reflect the change in terminology introduced to that Act by Schedule 2 to the Bill.

 

132.     Item 22 of Schedule 2 amends subsection 238(1) of the 1976 Act to clarify that determinations made under section 238 of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

133.     Items 24 and 25 of Schedule 2 amend subsection 241(1) of the 1976 Act to clarify that determinations made under section 241 of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

134.     Item 27 of Schedule 2 amends subsection 242C(1) of the 1976 Act to clarify that determinations made under section 242C of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

 

 

 

Item 6, 9, 11, 16, 23, 26 and 28 - Disallowable instruments

 

135.     Item 6 of Schedule 2 repeals the definition of “disallowable instrument” in subsection 3(1) of the 1976 Act as a consequence of the amendments made to that Act by Schedule 2 to the Bill, to replace references to disallowable instruments for the purposes of the AI Act with references to the disallowance provisions of the LI Act.

 

136.     Items 9, 11, 16, 23, 26 and 28 amend the 1976 Act to remove references to various instruments as disallowable instruments for the purposes of the AI Act or Statutory Rules for the purposes of the repealed SRP Act.  The amendments also clarify that those instruments continue to be disallowable.  This is achieved by overriding section 44 of the LI Act, which exempts superannuation instruments from disallowance, and providing that the disallowance provisions of section 42 of that Act will apply.

 

137.       Item 9 of Schedule 2 repeals subsection 3(1BD) of the 1976 Act, which relates to declarations made for the purposes of paragraph (ec) or (j) of the definition of “eligible employee” in subsection 3(1) of the Act of the 1976 Act , and substitutes a new subsection 3(1BD) which provides for those instruments to be disallowable under the LI Act.

 

138.     Item 11 of Schedule 2 repeals subsections 4A(1) and (2) of the 1976 Act, which apply to declarations made for the purposes of the definition of “approved authority” in subsection 3(1) of the Act, and substitutes a new subsection 4A(1) which provides for those instruments to be disallowable under the LI Act.

 

139.     Item 16 of Schedule 2 repeals and substitutes section 110G of the 1976 Act, which applies to declarations made under sections 110D, 110E or 110F of the Act.  The new section 110G provides for those instruments to be disallowable under the LI Act.

 

140.     Item 23 of Schedule 2 repeals and substitutes subsection 238(2) of the 1976 Act, which applies to determinations made under section 238 of the Act.  The new subsection 238(2) provides for those instruments to be disallowable under the LI Act.

 

141.     Item 26 of Schedule 2 repeals and substitutes subsection 241(3) of the 1976 Act, which applies to determinations made under section 241 of the Act.  The new subsection 241(3) provides for those instruments to be disallowable under the LI Act.

 

142.     Item 28 of Schedule 2 repeals and substitutes subsection 242C(4) of the 1976 Act which applies to determinations made under section 242C of the Act.  The new subsection 242C(4) provides for those instruments to be disallowable under the LI Act.

 

 

 

 

 

 

Item 12 - Technical amendment

 

143.     Item 12 of Schedule 2 amends subsection 110C(2) of the 1976 Act to omit the reference to declarations by the “Minister” under section 110D of that Act and substitute a reference to declarations by the “Board” to reflect the amendment made to section 110D of the 1976 Act by the Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act (No. 1) 2003 .  That amendment to section 110D transferred the power to make declarations under that section from the Minister to the Board.  The Board in this case is ARIA.

 

Items 19 and 20 - Removal of requirement to gazette interest determinations

 

144.     ARIA makes periodic determinations of interest in respect of the CSS and the PSS to be applied to members’ accounts.  Generally, weekly interest rates are struck.  However, from time to time, it can be necessary for daily rates to be determined.  Those rates are published on the scheme website (generally on the business day immediately after the rates become effective).  The interest determinations for the CSS are also required to be gazetted.

 

145.     Interest determinations under both the 1976 Act, for the CSS, and the 1990 Act, for the PSS, have been exempted from the requirements of the Legislative Instruments Act 2003 by the Legislative Instruments Regulations 2004 .  This was done because setting of interest rates is based on commercial considerations that are a matter for ARIA.  Disallowance of the interest determinations could adversely affect the operation of the schemes by disrupting the orderly distribution of funds to members leaving the schemes.  The frequency and numbers of interest determinations also make registration on the Federal Register of Legislative Instruments administratively burdensome.

 

146.     For the same reasons, compliance with the current statutory requirement that each CSS interest determination must be gazetted also results in an undue administrative and financial burden on ARIA.

 

147.     Item 19 of Schedule 2 therefore repeals and substitutes subsection 154A(2) of the 1976 Act to remove the requirement for gazettal of CSS interest determinations.  This change will also result in consistent arrangements for CSS and PSS interest determinations, which will assist ARIA in its administration of the interest determination process.  ARIA has given an undertaking that the interest rates will continue to be published on the CSS website.

 

148.     Item 20 of Schedule 2 specifies that the removal of the requirement for gazettal of CSS interest determinations applies to determinations made after the repeal and substitution of subsection 154A(2).  This will occur on Royal Assent.

 

 

 

 

Superannuation Act 1990 (1990 Act)

 

Item 29 - Amendments to Trust Deed

 

149.     Item 29 of Schedule 2 amends subsection 5A(2) of the 1990 Act to replace a reference to a repealed provision of the AI Act with a  reference to the equivalent provision in the LI Act, to clarify that amendments to the PSS Trust Deed referred to in section 5A may be made with retrospective effect.

 

Items 30 and 31- Disallowable instruments

 

150.     Items 30, 31 and 32 amend section 45 of the 1990 Act to remove references to various instruments as disallowable instruments for the purposes of the AI Act or Statutory Rules for the purposes of the repealed SRP Act.  The amendments also clarify that those instruments continue to be disallowable.  This is achieved by overriding section 44 of the LI Act, which exempts superannuation instruments from disallowance, and providing that the disallowance provisions of section 42 of that Act will apply.

 

151.     Item 30 of Schedule 2 amends subsection 45(1) of the 1990 Act omit the reference to the disallowance provisions of section 46A of the AI Act.   Item 31 of Schedule 2 introduces the disallowance provisions in the LI Act by overriding section 44 of that Act.

 

Item 32 - Retrospective effect of instruments

 

152.     Item 32 of Schedule 2 amends subsection 45(6) of the 1990 Act to replace a reference to a repealed provision of the AI Act with a reference to the equivalent provision in the LI Act, to clarify that amendments to the Trust Deed made under subsection 5(1) may be made with retrospective effect.

 

 

Superannuation (Productivity Benefit) Act 1988 (PB Act)

 

Items 33 to 37 - Legislative instruments

 

153.     Item 33 of Schedule 2 amends section 3D of the PB Act to clarify that declarations made under section 3D of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

154.     Item 34 of Schedule 2 amends subsection 3E(1) of the PB Act to clarify that declarations made under section 3E of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

155.     Item 35 of Schedule 2 amends subsections 3F(1) and (2) of the PB Act to clarify that declarations made under section 3F that Act are legislative instruments and therefore must meet the requirements of the LI Act

 

156.     Item 36 of Schedule 2 amends subsections 4A(1) and (2) of the PB Act to clarify that declarations made under section 4A of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

157.     Item 37 of Schedule 2 amends subsections 4G(1) and (2) of the PB Act to clarify that determinations made under section 4G of that Act are legislative instruments and therefore must meet the requirements of the LI Act.

 

Item 38 - Disallowable instruments

 

158.     Item 38 of Schedule 2 repeals and substitutes section 9B of the PB Act.  This is in order to override section 44 of the LI Act, so that the disallowance provisions of section 42 of that Act apply to legislative instruments made under the PB Act.  The repealed section refers to repealed provisions in the AI Act and to the repealed SRP Act.

 



SCHEDULE 3 - REPEAL OF SCHEDULE TO SUPERANNUATION ACT 1990

 

159.     Section 4 of the 1990 Act provided for the Minister for Finance to establish an occupational superannuation scheme by deed in the form set out in the Schedule to the Act.  On 21 June 1990 the then Minister for Finance, to satisfy the requirements of subsection 4(1) of the 1990 Act, made the PSS Trust Deed, in the form set out by the Schedule to the 1990 Act, to establish the PSS.  The PSS Trust Deed has been amended on twenty-seven occasions since 21 June 1990 in accordance with the authority given to the Minister under section 5 of the 1990.

 

160.     Items 1 to 3 of Schedule 3 repeal the Schedule to the 1990 Act and remove the references to the Schedule in section 4 of the 1990 Act.  This will ensure that the original form of the deed is not mistaken for the amended deed as applying from time to time

 



SCHEDULE 4 - AMENDMENTS RELATING TO THE SUPERANNUATION GUARANTEE (ADMINISTRATION) ACT 1992

 

161.     Schedule 4 of the Bill amends the 1976 Act and the PB Act in relation to future changes to the Superannuation Guarantee (Administration) Act 1992 (SG Act).  These amendments are required because many Australian Government employers fulfil their SG obligations through contributions for employees under those Acts.

 

162.     The amendments are required in particular because of changes to the earnings base for the SG from 1 July 2008.  From that date employers will no longer be permitted to use earnings bases that existed before 21 August 1991 to calculate their SG obligations but must use ordinary time earnings (OTE) in all cases.  Both the CSS, which is provided for in the 1976 Act, and the PB Act provide for contributions and benefits that are based on earnings bases that existed before 21 August 1991 and which differ from OTE.

 

163.     The change to the SG earning base was announced by the Treasurer on 25 February 2004 as part of the policy paper entitled A More Flexible and Adaptable Retirement Income System .  Originally to apply from 1 July 2010 this date was subsequently brought forward to 1 July 2008.  Amendments were made to the SG Act by the Superannuation Laws Amendment (2004 Measures No. 2) Act 2004 to apply the change to accumulation schemes from 1 July 2008.  The change is to be applied to defined benefit schemes like the CSS with effect from the same date by regulations to be made under the SG Act.

 

Superannuation Act 1976

 

Items 1 and 2 - Regulation making power to ensure compliance with the SG Act

 

164.     Item 1 of Schedule 4 repeals and substitutes subsection 155C(1) of the 1976 Act.  This will enable the making of regulations to change that Act when necessary to ensure that the CSS provides benefits sufficient for an employer to avoid an individual SG shortfall in respect of an employee who is a member of the scheme.  This will enable changes to be made to the CSS to comply with the 2008 change to the SG earnings base once the regulations are made under the SG Act to apply that change to defined benefit schemes.  It will also ensure that any future changes to the SG Act can be reflected in the CSS where appropriate in a timely manner.

 

165.     The date of effect proposed for this amendment is Royal Assent.  This should provide sufficient time for the regulations to be made and in place by 1 July 2008.

 

166.     Item 2 of Schedule 4 is a transitional provision which ensures that existing regulations made under subsection 155C(1) continue to have effect after that subsection is repealed and substituted .

 

 

 

 

 

Superannuation (Productivity Benefit) Act 1988

 

Item 3 to 7 - Amendments to ensure compliance with the SG Act

 

167.     Item 3 of Schedule 4 inserts a definition of “quarter” which is used in the subsequent amendments .  The definition reflects the definition of the same term in the SG Act.

 

168.     Item 4 of Schedule 4 inserts a new paragraph (aa) after paragraph 4F(1)(a) of the PB Act to provide that an employer contributing under the Act is to pay an additional contribution for any quarter where it is necessary to avoid an individual SG shortfall in respect of an employee covered by that Act.  This will ensure that employers contributing under the Act can meet their SG obligations once the 2008 changes to the earnings base are made and also in the event of any further relevant changes to the SG Act.

 

169.     The proposed change will also ensure that employees whose superannuation is provided under the PB Act will not be disadvantaged as a result of the change to the SG earnings base to OTE if their current earnings base is higher than OTE.

 

170.     Item 5 of Schedule 4 amends paragraph 4F(1)(b) of the PB Act to incorporate a reference to the new paragraph 4F(1)(aa) and to give employers the flexibility to pay contributions at any time before the day they are payable under subsection 4F(2) .  An early payment might occur when an employer prefers to pay contributions on an ongoing basis throughout a quarter, rather than as a lump sum at the end of a quarter.

 

171.     Item 6 of Schedule 4 repeals and substitutes paragraph 4F(2) of the PB Act in order to specify the timeframe that employers must meet when paying contributions in accordance with the new paragraph 4F(1)(aa).  Those contributions must be paid by the end of the period of 28 days after the end of the quarter for which they are payable.

 

172.     Item 7 of Schedule 4 repeals and substitutes the definition of “notional contributions” in subsection 8A(2) of the PB Act, to incorporate a reference to the new paragraph 4F(1)(aa).  This will ensure that any contributions under that paragraph are taken in account when determining the amount of any overdue contributions that must be paid by an employer as an interim benefit under section 8A of the PB Act.