Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
(Circulated by the authority of the Minister for Finance and Administration
the Hon John J Fahey, MP)
ISBN: 0642 377081
The purpose of this Bill is to make savings and transitional provisions arising out of amendments to, and subsequent repeals of, five Acts by the Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Bill 1998 (the Repeal and Amendment Bill) and the introduction of the Commonwealth Superannuation Board Bill 1998 (the Board Bill).
The five particular Acts dealt with by the Amendment Bill are the Superannuation Act 1922 (the 1922 Act), the Superannuation Act 1976 (the 1976 Act), the Superannuation Act 1990 (the 1990 Act), the Superannuation (Productivity Benefit) Act 1988 (the PB Act) and the Papua New Guinea (Staffing Assistance) Act 1973 (the PNG Act).
Transitional and savings amendments in respect of past actions
Amendments proposed by the Repeal and Amendment Bill to the 1976 and 1990 Acts together with the proposed Board Bill include the effect of combining the CSS and PSS Boards into one Board to be known as the Commonwealth Superannuation Board (the CS Board). The CS Board will have the responsibility of managing both the Commonwealth Superannuation Scheme (the CSS) and the Public Sector Superannuation Scheme (the PSS). Provisions of this Bill will ensure that there are no unintended costs to either the scheme members, the Commonwealth or the Funds arising from the new administration arrangements. The CS Board will be able to take over the activities of the CSS and PSS Boards and all previous actions of the two Boards will be taken to be actions of the CS Board.
This Bill will also provide that ComSuper will continue to provide scheme administration services to the CS Board for at least three years.
Amendments proposed by the Repeal and Amendment Bill to the 1922 Act and the PNG Act together with the proposed Board Bill have the effect of transferring responsibility for the scheme under the 1922 Act and the superannuation and retirement income provisions of the PNG Act to the CS Board. This Bill will ensure that all previous actions in relation to that administration will be taken to have been actions of the CS Board.
Other savings in respect of amended and repealed provisions
Certain other amendments included in the Repeal and Amendment Bill will amend and repeal specific provisions in the 1976 Act in order to simplify the administrative processes necessary for the CSS, or to restore the original intention of certain provisions. Provisions in the Bill will protect members taking action under the repealed provisions when the amending Bill comes into effect. For example, certain persons who have appealed decisions by the Commissioner for Superannuation to the Administrative Appeals Tribunal prior to 1 July 1999, will be able to continue with that appeal process even though any decisions of the Commissioner will be taken to be decisions of the CS Board after that date.
Savings of repealed Acts in relation to members and others entitled to benefits
The Repeal and Amendment Bill will repeal the 1922 Act, the 1976 Act, the 1990 Act, the PB Act and the provisions from the PNG Act that relate to superannuation and retirement income for persons covered by that Act. This Bill will save the provisions of that legislation in relation to all persons who were covered by the legislation, or who would have been covered in the future, immediately prior to the repeals to ensure no disadvantage to individuals as a result of the repeal. For example, persons receiving, or entitled in the future to, benefits under the repealed Acts will still be able to receive those benefits on the same terms as under the repealed Acts.
Financial Impact Statement
This Bill has no financial impact.
"1922 Act" means the Superannuation Act 1922;
"1976 Act" means the Superannuation Act 1976;
"1990 Act" means the Superannuation Act 1990;
"APS" means the Australian Public Service;
"Board Bill" means the Commonwealth Superannuation Board Bill 1998;
"Commissioner" means the Commissioner for Superannuation;
"CS Board" means the Commonwealth Superannuation Board as provided for in the Commonwealth Superannuation Board Bill 1998;
"CSS" means the Commonwealth Superannuation Scheme;
"CSS member" is used to describe a person who makes personal contributions to the CSS (the 1976 Act uses the term "eligible employee" for such a person);
"PNG Act" means the Papua New Guinea (Staffing Assistance) Act 1973;
"PB Act" means the Superannuation (Productivity Benefit) Act 1988;
"PSS" means the Public Sector Superannuation Scheme;
"PSS Rules" means the rules for the administration of the PSS;
"Repeal and Amendment Bill" means the Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Bill 1998;
"SIS" means the Superannuation Industry (Supervision) Act 1993 and regulations under that Act;
"Supervisory Mechanisms Act" means the Superannuation Benefits (Supervisory Mechanisms) Act 1990.
PART 1 PRELIMINARY
Clause 1 – Short title
Clause 1 provides that the short title of the Act is to be the Superannuation Legislation (Commonwealth Employment – Saving and Transitional Provisions) Act 1998.
Clause 2 – Commencement
2. Clause 2 provides that the Act commences on 1 July 1999. Part 3 commences at the same time as Schedule 2 to the Repeal and Amendment Bill, Part 5 commences at the same time as Schedule 4 to that Bill and Part 8 commences as the same time as Schedule 9 to that Bill.
Clause 3 – Definition
Clause 3 defines the Commonwealth Superannuation Board.
PART 2 – PROVISIONS CONSEQUENTIAL ON AMENDMENTS TO THE 1976 ACT
Clause 4 - Transitional provision consequential on vesting of assets and liabilities in CS Board
3. Subclause 4(1) provides that section 4 will apply to assets that vest in, or liabilities that become liabilities of, the CS Board, including in relation to its capacity as ‘trustee’ of the CSS Fund, under section 40A of the 1976 Act.
4. Subclause 4(2) provides that all proceedings by or against the CSS Board in relation to these assets and liabilities that began before 1 July 1999 and have not been finalised before that date are to be taken as pending by or against the CS Board. Without such a provision it may be possible that all pending proceedings taken by or against the CSS Board could end on the abolition of the CSS Board.
5. Similarly, subclause 4(3) is intended to ensure that anything done or not done before 1 July 1999 in relation to the assets and liabilities does not lapse from 1 July 1999.
6. Subclause 4(4) provides that any references, whether they be in an Act, instrument made under an Act or in any other document, to the CSS Board in relation to the assets and liabilities is to be, or taken to include, a reference to the CS Board. For example, this subclause together with section 40A of the 1976 Act would provide for the name CSS Board where it appears, such as in a shareholder register or register of unitholders, to be able to be read as CS Board without the necessity for any action to be taken or documentation to be done.
Clause 5- Transfers of land may be registered
7. Subclause 5(1) provides for section 5 to apply where land vests in the CS Board under subsection 40A(2) of the 1976 Act and there is lodged with a land registration official a certificate signed by the Minister or authorised person identifying the land and stating the right, title or interest has become vested in the CS Board.
8. Subclause 5(2) allows the land registration official to register the land or the interest in the land in the way that transfers are normally registered and subclause 5(3) provides that a certificate referred to in subsection 5(1) is prima facie taken to be such.
9. Subclause 5(4) allows the Minister to authorise in writing a person to sign a certificate under subsection 5(1). Subclause 5(5) provides that the Lands Acquisition Act 1989 does not apply in relation to anything done under this section. Subclause 5(6) defines who is a ‘land registration official’ for the purposes of the section.
10. The purpose of clause 5 is to enable transfers of rights, titles and interests in land that are vested in the CS Board under subsection 40A(2) of the 1976 Act to be registered and otherwise dealt with in the way that those matters would ordinarily be dealt with.
Clause 6 -Certificates in relation to assets other than land
11. Subclause 6(1) provides for section 6 to apply where an asset other than land vests in the CS Board under subsection 40A(2) of the 1976 Act and there is lodged with an assets official a certificate signed by the Minister or authorised person identifying the asset and stating that the asset has become vested in the CS Board.
12. Subclause 6(2) allows an assets official to deal with and give effect to the certificate as if it were a proper instrument of transactions in relation to assets of that kind and make such entries as are necessary in the register relating to assets of that kind.
13. Subclause 6(3) provides that a certificate under subsection 6(1) is prima facie taken to be such.
14. Subclause 6(4) allows the Minister to appoint a person to sign a certificate under subsection 6(1).
15. Subclause 6(5) defines who is an assets official for the purposes of the section which includes a person who is required under a trust instrument to keep a register of assets of the kind concerned.
16. The purpose of clause 6 is to enable the transfer of assets (other than land) vested in the CS Board under subsection 40A(2) of the 1976 Act to be registered and otherwise dealt with in the way that transfers of assets of those kinds would ordinarily be dealt with.
Clause 7 – Transitional provision relating to annual report and financial statements of the CSS Board
17. Sections 161, 161A and 162 of the 1976 Act required the CSS Board and the Commissioner to provide reports on administration and, in the case of the CSS Board, financial statements in connection with their functions under the 1976 Act and the 1922 Act respectively. Those provisions are to be repealed by the Repeal and Amendment Bill and the Board Bill will require the CS Board to provide similar reports and financial statements in relation to the 1976 and 1922 Acts after their repeal.
18. Clause 7 provides that sections 161, 161A and 162 of the 1976 Act will continue to apply, despite their repeal, in respect of financial years commencing before their repeal. Any obligations under those sections should be performed by the CS Board after the date of repeal and any reference to the performance of the functions of the CSS Board includes a reference to anything done during a financial year that is taken, by clause 10 of this Act, to have been done by the CS Board.
Clause 8 – Saving of modifications under section 14A of the 1976 Act
19. Section 14A of the 1976 Act provides for the modification, by regulation, of the 1976 Act in relation to a person to whom the section applies. The Repeal and Amendment Bill repeals the section with effect from 1 July 1999.
20. Clause 8 provides that the modifications made under section 14A of the 1976 Act continue to apply, despite the repeal of that section, to the persons to whom the modifications applied at the time the section was repealed.
Clause 9 – Saving of pending applications to Administrative Appeals Tribunal
21. Section 154 of the 1976 Act provides access to appeal to the Administrative Appeals Tribunal (the AAT) for CSS members and other persons who are dissatisfied with decisions made by the Commissioner under this Act as it applied before 1 July 1994 and under the 1922 Act. The statutory office of the Commissioner is to be abolished from 1 July 1999 by the Repeal and Amendment Bill and any decisions made by the Commissioner prior to that date under the 1976 or 1922 Acts will be taken, under section 10 or section 20 of this Bill, to have been done by the CS Board. Decisions made by the CS Board will not be able to be reviewed by the AAT as SIS will require such decisions to be reviewed by the Superannuation Complaints Tribunal. The Repeal and Amendment Bill repeals section 154.
22. However, there may be individuals who have applied to the AAT for review of a decision prior to 1 July 1999 and those appeals may not have been finalised at that date.
23. Clause 9 provides that, where a person has applied to the AAT for review a decision of the Commissioner prior to 1 July 1999 under section 154 of the 1976 Act, that review may continue to be heard by the AAT as if section 154 had not been repealed.
Clause 10 –Actions by former authorities to be taken to be actions of the CS Board
24. The Repeal and Amendment Bill and the Board Bill together provide for the CS Board to take over all functions of the CSS Board, and the Commissioner, from 1 July 1999.
25. Clause 10 provides that any actions taken by the CSS Board and the Commissioner (or their delegates) prior to 1 July 1999 should be taken to have been done by the CS Board. The clause further provides that anything done to, or in respect of, the CSS Board or the Commissioner under the 1976 Act or its regulations prior to 1 July 1999 is taken to have been done to, or in respect of, the CS Board.
PART 3 – PROVISIONS CONSEQUENTIAL ON THE REPEAL OF THE 1976 ACT
Clause 11 – Repealed Act to continue to apply in respect of certain people
26. The Repeal and Amendment Bill repeals the 1976 Act from 1 July 1999.
27. Clause 11 provides that the repealed Act, all the regulations and any other instruments under that Act as well as the provisions of Part 2 of this Act, continue to apply in all aspects to all persons who were in receipt of benefits under the Act or would have been entitled in the future to benefits under the Act as if it had not been repealed.
28. This provision is intended to cover all existing contributing members under the Act, all persons who have preserved entitlements under the Act, all persons who have a residual right to return to membership of the CSS or resume contributing, all persons who are in receipt of continuing benefits or have a right to such benefits and all persons who may be entitled to reversionary benefits because of their relationships with those other persons. This has the effect of continuing the operation of the CSS Fund (which contains contributions paid by, or in respect of, such persons) and all matters concerning the Fund and the obligations of employers of such persons.
29. The clause also ensures that any reference in any law of the Commonwealth to the 1976 Act, any of its provisions or regulations or instruments under the Act, to be a reference to the repealed Act, its provisions, regulations or instruments.
PART 4 – PROVISIONS CONSEQUENTIAL ON AMENDMENTS TO THE 1990 ACT
Clause 12 - Transitional provision consequential on vesting of assets and liabilities in CS Board
30. Subclause 12(1) provides that section 12 will apply to assets that vest in, or liabilities that become liabilities of, the CS Board, including in relation to its capacity as ‘trustee’ of the PSS Fund, under section 4A of the 1990 Act.
31. Subclause 12(2) provides that all proceedings by or against the PSS Board in relation to these assets and liabilities that began before 1 July 1999 and have not been finalised before that date are to be taken as pending by or against the CS Board. Without such a provision it may be possible that all pending proceedings taken by or against the PSS Board could end on the abolition of the PSS Board.
32. Similarly, subclause 12(3) is intended to ensure that anything done or not done before 1 July 1999 in relation to the assets and liabilities does not lapse from that date.
33. Subclause 12(4) provides that any references, whether they be in an Act, instrument made under an Act or in any other document, to the PSS Board in relation to the assets and liabilities is to be or taken to include a reference to the CS Board. For example, this subclause together with section 4A of the 1990 Act would provide for the name PSS Board where it appears, such as in a shareholder register or register of unitholders, to be able to be read as CS Board without the necessity for any action to be taken or documentation to be done.
Clause 13 - Transfers of land may be registered
34. Subclause 13(1) provides for section 13 to apply where land vests in the CS Board under section 4A of the 1990 Act and there is lodged with a land registration official a certificate signed by the Minister or authorised person identifying the land and stating the right, title or interest has become vested in the CS Board.
35. Subclause 13(2) allows the land registration official to register the land or the interest in the land in the way that transfers are normally registered and subclause 13(3) provides that a certificate referred to in subsection 13(1) is prima facie taken to be such.
36. Subclause 13(4) allows the Minister to authorise in writing a person to sign a certificate under subsection 13(1). Subclause 13(5) provides that the Lands Acquisition Act 1989 does not apply in relation to anything done under this section. Subclause 13(6) defines who is a ‘land registration official’ for the purposes of the section.
37. The purpose of clause 13 is to enable transfers of rights, titles and interests in land that are vested in the CS Board under subsection 4A(2) of the 1990 Act to be registered and otherwise dealt with in the way that those matters would ordinarily be dealt with.
Clause 14 - Certificates in relation to assets other than land
38. Subclause 14(1) provides for section 14 to apply where an asset other than land vests in the CS Board under subsection 4A(2) of the 1990 Act and there is lodged with an assets official a certificate signed by the Minister or authorised person identifying the asset and stating that the asset has become vested in the CS Board.
39. Subclause 14(2) allows an assets official to deal with and give effect to the certificate as if it were a proper instrument of transactions in relation to assets of that kind and make such entries as are necessary in the register relating to assets of that kind.
40. Subclause 14(3) provides that a certificate under subsection 14(1) is prima facie taken to be such.
41. Subclause 14(4) allows the Minister to appoint a person to sign a certificate under subsection 14(1).
42. Subclause 14(5) defines who is an assets official for the purposes of the section. That definition includes a person who is required under a trust instrument to keep a register of assets of the kind concerned.
43. The purpose of clause 14 is to enable the transfer of assets (other than land) vested in the CS Board under subsection 4A(2) of the 1990 Act to be registered and otherwise dealt with in the way that transfer of those assets of those kinds would ordinarily be dealt with.
Clause 15– Transitional provision relating to annual report and financial statements of the PSS Board
44. Section 28 of the 1990 Act requires the PSS Board to provide reports on administration and financial statements in connection with its functions under the 1990 Act. That provision is to be repealed by the Repeal and Amendment Bill and the Board Bill will require the CS Board to provide similar reports and financial statements in relation to the 1990 Act after its repeal.
45. Clause 15 provides that section 28 of the 1990 Act will continue to apply, despite its repeal, in respect of financial years commencing before their repeal. Any obligations under those sections should be performed by the CS Board after the date of repeal and any reference to the performance of the functions of the PSS Board includes a reference to anything done during a financial year that is taken to have been done by the CS Board.
Clause 16 –Actions by former authorities to be taken to be actions of the CS Board
46. The Repeal and Amendment Bill and the Board Bill together provide for the CS Board to take over all functions of the PSS Board from 1 July 1999.
47. Clause 16 provides that any actions taken by the PSS Board (or its delegates) prior to 1 July 1999 should be taken to have been done by the CS Board. The clause further provides that anything done to, or in respect of, the PSS Board under or for the purposes of the 1990 Act or the PSS Trust Deed prior to 1 July 1999 is taken to have been done to, or in respect of the CS Board.
PART 5 – PROVISIONS CONSEQUENTIAL ON THE REPEAL OF THE 1990 ACT
Clause 17 – Definitions
48. Clause 17 provides for definitions of terms used in this Part.
Clause 18– Repealed Act and Trust Deed to continue to apply in respect of certain people
49. The Repeal and Amendment Bill repeals the 1990 Act from 1 July 1999.
50. Clause 18 provides that the repealed Act, all the regulations, including the Trust Deed and Part 4 of this Act and any other instruments under that Act, continue to apply in all aspects to all persons who were in receipt of benefits under the Act or would have been entitled in the future to benefits under the Act as if it had not been repealed.
51. This provision is intended to cover all existing contributing members under the Act, all persons who have preserved entitlements under the Act, all persons who have a residual right to return to membership of the PSS or resume contributing, all persons who are in receipt of continuing benefits or have a right to such benefits and all persons who may be entitled to reversionary benefits because of their relationships with those other persons. This has the effect of continuing the operation of the PSS Fund (which contains contributions paid by, or in respect of, such persons) and all matters concerning the Fund and the obligations of employers of such persons.
52. The clause also ensures that any reference in any law of the Commonwealth to the 1990 Act, any of its provisions or regulations or instruments under the Act, to be a reference to the repealed Act, its provisions, regulations or instruments.
PART 6 – PROVISIONS CONSEQUENTIAL ON THE REPEAL OF THE 1922 ACT
Clause 19– Repealed Act to continue to apply in respect of certain people
53. The Repeal and Amendment Bill repeals the 1922 Act from 1 July 1999.
54. Clause 19 provides that the repealed Act, all the regulations and any other instruments under that Act, continue to apply in all aspects to all persons who were in receipt of benefits under the Act or would have been entitled in the future to benefits under the Act as if it had not been repealed.
55. This provision is intended to cover all persons who are in receipt of continuing benefits or have a right to such benefits, all persons who have preserved entitlements under the Act and all persons who may be entitled to reversionary benefits because of their relationships with those other persons.
Clause 20 –Actions by former authorities to be taken to be actions of the CS Board
56. The Repeal and Amendment Bill and the Board Bill together provide for the CS Board to take over all functions of the Commissioner under the 1922 Act from 1 July 1999.
57. Clause 20 provides that any actions taken by the Superannuation Board (which administered the 1922 Act before 1 July 1976) or the Commissioner (or their delegates) prior to 1 July 1999 should be taken to have been done by the CS Board. The clause further provides that anything done to, or in respect of, the Superannuation Board or the Commissioner prior to 1 July 1999 is taken to have been done to, or in respect of, the CS Board.
PART 7 – PROVISIONS CONSEQUENTIAL ON THE AMENDMENT OF THE PB ACT
Clause 21 – Saving of existing declarations and determinations by Minister
58. Clause 21 provides that the rates of continuing contributions and interest factors, including penalty interest on late payments of contributions to a fund, determined by the Minister under the PB Act before its repeal continue to apply as if they had been made by the CS Board in accordance with methods of calculation advised to the Board by the Minister.
PART 8 – PROVISIONS CONSEQUENTIAL ON THE REPEAL OF THE PB ACT
Clauses 22 and 23 – Repealed PB Act to continue to apply to certain employees
59. These clauses contain savings provisions that will continue to provide coverage under the existing arrangements under the PB Act before its repeal for persons who:
a) were in Commonwealth employment as at 30 June 1999 and should have had contributions paid on their behalf by their employer under the Act at any time up to that date, but no such contributions were paid; or
b) had ceased Commonwealth employment before 1 July 1999 and contributions that should have been paid by their employer had not been paid before they left employment during any period up to 30 June 1999; or
c) had ceased Commonwealth employment before 1 July 1999 and an ‘interim benefit’, as defined under the Act, that should have been paid by their employer had not been paid before that date.
60. Certain persons in Commonwealth employment who are covered by the PB Act on 30 June 1999 may be disadvantaged if they were to be covered by the Superannuation Guarantee (Administration) Act 1992 (the SG Act) after that date. This could occur, for instance, if they were earning less than $450 a month or they were part-time employees under 18 years of age. The savings will ensure that such persons are not disadvantaged during their current term of employment. If they are re-employed after 30 June 1999 and after their current term expires, they would cease to be covered by the current arrangements in the PB Act and would commence to be covered by the SG Act, like any new employee.
PART 9 – PROVISIONS CONSEQUENTIAL ON THE AMENDMENT OF THE PNG ACT
Clause 24 – Definitions
61. Clause 24 defines terms used in this Part.
Clause 25 - Repealed Act to continue to apply in respect of certain people
62. The Repeal and Amendment Bill repeals provisions of the PNG Act that provide for the payment of pensions under that Act from 1 July 1999.
63. Clause 25 provides that the repealed provisions of the Act continue to apply in all aspects to all persons who were in receipt of benefits under the Act or would have been entitled in the future to benefits under the Act as if it had not been repealed.
64. This provision is intended to cover all persons who are in receipt of continuing benefits or have a right to such benefits, all persons who have preserved entitlements under the Act and all persons who may be entitled to reversionary benefits because of their relationships with those other persons.
Clause 26 –Actions by former authorities to be taken to be actions of the CS Board
65. The Repeal and Amendment Bill and the Board Bill together provide for the CS Board to administer the PNG Act from 1 July 1999.
66. Clause 26 provides that any actions taken by former authorities under that Act prior to 1 July 1999 should be taken to have been done by the CS Board. The clause further provides that anything done to, or in respect of, the former authorities under that Act prior to 1 July 1999 is taken to have been done to, or in respect of, the CS Board.
PART 10 – PROVISIONS CONSEQUENTIAL ON THE CONFERRING OF FUNCTIONS AND POWERS ON THE COMMONWEALTH SUPERANNUATION BOARD
Clause 27 – Provision of administrative services to the CS Board
67. Subclause 7(2) of the Board Bill will provide for the CS Board to be responsible for the general administration of the superannuation legislation. Clause 27 sets out how the administration of the superannuation schemes constituted under that legislation, that is, the CSS, PSS, 1922 scheme and PNG Act scheme, is to be undertaken for the three years beginning on 1 July 1999.
68. Subclause 27(1) provides that, for the three years commencing on 1 July 1999 the administration of the above schemes is to be undertaken on behalf of the CS Board by one or more bodies nominated by an authorised person, or if there is no nominated body, by the Commonwealth.
69. This will ensure that, from 1 July 1999 the organisation known as Commonwealth Superannuation Administration or ComSuper will continue to provide administrative services for the relevant schemes on behalf of the CS Board. ComSuper is not currently a legal entity and subclause 27(1) covers the circumstances where ComSuper either remains in the same form or becomes an incorporated company or body corporate at some time.
70. Subclause 27(2) ensures that there is sufficient flexibility for certain functions to be outsourced if required.
71. Subclause 27(3) makes it clear that a reference to scheme administration in the section does not include, services in relation to the investment of scheme monies and the management of those investments. The subclause also allows the authorised person and the Board to agree on other services that are not required to be provided by the nominated body. This allows the Board to obtain specialised services such as legal advice from other service providers. The provider or providers of these services remains a matter for the CS Board.
72. Subclause 27(4) provides that the Minister may authorise a person to perform the functions of authorised person under the section. Subclause 27(5) enables an authorised person to make in writing, determinations, nominations and approvals for the purposes of the section.
73. Subclause 27(6) defines three terms. 'Authorised person’ means the Minister or a person authorised by the Minister under subsection 27(4). ‘Nominated body’ means a body that has entered into an agreement or arrangement (that includes the level of charges involved) with the Commonwealth to provide the services described in subsection 27(1) and has been nominated by an authorised person. ‘Superannuation legislation’ has the same meaning as in the Board Bill.