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2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SUPERANNUATION LEGISLATION AMENDMENT
(TRUSTEE BOARD AND OTHER MEASURES)
(CONSEQUENTIAL AMENDMENTS) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Finance and Administration,
Senator the Hon Nick Minchin)
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GENERAL OUTLINE
SUPERANNUATION LEGISLATION AMENDMENT (TRUSTEE BOARD AND
OTHER MEASURES) (CONSEQUENTIAL AMENDMENTS) BILL 2007
OUTLINE
The main purpose of the Superannuation Legislation Amendment (Trustee Board and
Other Measures) (Consequential Amendments) Bill 2007 (the Bill) is to make
amendments to a range of legislation as a consequence of other legislative changes,
including the:
· introduction on 1 July 2005 of the Public Sector Superannuation Accumulation Plan
(PSSAP);
· introduction on 1 July 2006 of a single Superannuation Board 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
· changes to the earnings base for the Superannuation Guarantee (SG) from
1 July 2008.
Introduction of the PSSAP
The Superannuation Act 2005 (2005 Act) provided for the establishment, by Trust Deed
under that Act, of the PSSAP, a new occupational superannuation scheme for Australian
Government civilian employees. The PSSAP replaced the PSS as the main Australian
Government civilian superannuation scheme for new employees from 1 July 2005.
The Bill includes consequential amendments to a number of Acts that contain references
to the superannuation arrangements for Australian Government employees and office
holders to include references to the PSSAP.
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. That Act transferred all the functions of the CSS Board to the PSS Board,
which also had responsibility for the PSSAP. The PSS Board was then renamed as the
Australian Reward Investment Alliance (ARIA) and the CSS Board was abolished.
The Bill includes consequential amendments to a range of legislation to recognise ARIA
taking responsibility for the CSS and the changed name of the former PSS Board.
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Legislative Instruments Act
On 1 January 2005 the LI Act introduced a new, comprehensive regime for the making,
registration, publication, parliamentary scrutiny and sunsetting of Commonwealth
delegated legislation. 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.
Change of Earnings Base for the Superannuation Guarantee
The Bill includes amendments to the 1976 Act and the PB Act in relation to future
changes to the Superannuation Guarantee (Administration) Act 1992. These
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.
Removal of requirement to gazette interest determinations
ARIA makes periodic determinations of interest in respect of the CSS and the PSS to be
applied to members' accounts. The interest determinations for the CSS are required to be
gazetted which results in an undue administrative and financial burden on ARIA.
The Bill includes amendments to 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.
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.
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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 2007.
"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 SG legislation, 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.
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"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.
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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 2007.
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 the Royal Assent.
4. Item 2 of the table provides that Schedules 1 to 3 commence on the day on which
the Act receives the 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 the 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 cease the use of earnings bases that
existed before 21 August 1991 to calculate SG liabilities.
Clause 3: Schedule(s)
7. Clause 3 provides that the Acts specified in the Schedules to the Act are 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.
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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 as
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.
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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.
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22. Items 11 and 15 of Schedule 1 amend paragraphs 5(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 Act allows 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 Act allows 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 Act allows 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.
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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 Act allows 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.
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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 Act allows 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.
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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 Act allows 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.
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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.
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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 Act allows 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 61 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.
15
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.
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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 Act allows 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.
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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).
18
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.
Native 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.
19
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.
20
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.
21
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.
Resource Assessment Commission Act 1989 (RAC Act)
Items 113 and 116 - Invalidity retirement of PSSAP members
96. Item 113 of Schedule 1 inserts a new subsection 45A(5) in the RAC Act to deem a
Commissioner who is a PSSAP contributory member who is removed from office on the
ground of physical or mental incapacity under section 45 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 45A(6) of the RAC Act also inserted by item 113 of
Schedule 1.
97. Section 45 of the RAC Act allows the Governor-General to suspend a
Commissioner, other than a Judge, from office because of physical or mental incapacity.
Section 51 of the RAC Act allows the Governor-General to retire a Commissioner on the
ground of invalidity 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 45B(3) of the RAC Act inserted by item 116 of
Schedule 1.
Items 114 and 115 - Introduction of ARIA
98. Item 114 of Schedule 1 amends subsection 45B(1) of the RAC 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.
99. Item 115 of Schedule 1 amends subsection 45B(2) of the RAC 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 117 and 120 - Invalidity retirement of PSSAP members
100. Item 117 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 120 of Schedule 1.
22
Items 118 and 119 - Introduction of ARIA
101. Item 118 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.
102. Item 119 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 121 to 125 - Introduction of ARIA
103. Items 121 to 125 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 126, 129, 130 and 133 - Invalidity retirement of PSSAP members
104. Item 126 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 129 of Schedule 1.
105. Item 130 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 133 of Schedule 1.
Items 127, 128, 131 and 132 - Introduction of ARIA
106. Items 127 and 131 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.
23
107. Items 128 and 132 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 134 to 139, 146 and 147 - Introduction of ARIA
108. Items 134, 136, 138 and 146 of Schedule 1 amend subsections 35(3), 43(3), 56(4)
and 162(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.
109. Items 135, 137, 139 and 147 of Schedule 1 amend subsections 35(4), 43(4), 56(5)
and 162(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 140 to 143 - Election to cease PSSAP membership
110. 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 140 to 143 of Schedule 1 extend these provisions to a
Presidential Member who was a PSSAP member immediately before appointment.
111. Item 140 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 141 of Schedule 1.
112. Item 141 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.
113. Item 142 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.
114. Item 143 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).
24
Item 144 - Meaning of "relevant law"
115. Item 144 of Schedule 1 amends the definition of "relevant law" in section 116 of
the WR Act to exclude the 2005 Act.
Items 145 and 148 - Invalidity retirement of PSSAP members
116. Item 146 of Schedule 1 inserts paragraph 162(3)(c) in the WR Act to allow the
Governor-General to retire an Employment Advocate who is a PSSAP contributory
member, on the ground of incapacity if the Advocate 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 162(6) of the WR Act inserted by item 148 of
Schedule 1.
25
SCHEDULE 2 - TECHNICAL AMENDMENTS RELATING TO LEGISLATIVE
INSTRUMENTS
117. 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.
118. 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.
119. 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
120. 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
121. 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.
122. 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.
26
Superannuation Act 1922 (1922 Act)
Item 3 - Orders are legislative instruments
123. 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
124. 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.
125. 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
126. 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.
127. 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.
128. 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.
129. 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.
27
130. 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.
131. 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.
132. 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.
133. 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.
134. 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.
135. 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.
136. 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.
137. 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.
138. 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.
139. 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.
28
Item 6, 9, 11, 16, 23, 26 and 28 - Disallowable instruments
140. 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.
141. 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.
142. 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.
143. 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.
144. 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.
145. 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.
146. 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.
147. 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.
29
Item 12 - Technical amendment
148. 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
149. 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.
150. 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.
151. 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.
152. 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.
153. 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.
30
Superannuation Act 1990 (1990 Act)
Item 29 - Amendments to Trust Deed
154. 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
155. 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.
156. 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
157. 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
158. 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.
159. 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.
31
160. 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
161. 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.
162. 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
163. 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.
32
SCHEDULE 3 - REPEAL OF SCHEDULE TO SUPERANNUATION ACT 1990
164. 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.
165. 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
33
SCHEDULE 4 - AMENDMENTS RELATING TO THE SUPERANNUATION
GUARANTEE (ADMINISTRATION) ACT 1992
166. 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.
167. 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.
168. 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
169. 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.
170. 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.
171. 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.
34
Superannuation (Productivity Benefit) Act 1988
Item 3 to 7 - Amendments to ensure compliance with the SG Act
172. 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.
173. 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.
174. 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.
175. 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.
176. 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.
177. 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.
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