Superannuation Amendment Act 1988
No. 130 of 1988
An Act to amend the Superannuation Act 1976, and for related purposes
[Assented to 14 December 1988]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
Short title etc.
1. (1) This Act may be cited as the Superannuation Amendment Act 1988.
(2) In this Act, “Principal Act” means the Superannuation Act 19761.
Commencement
2. This Act commences on the day on which it receives the Royal Assent.
16223/88 Cat. No. 88 6853 0
Commissioner for Superannuation
3. Section 17 of the Principal Act is amended by omitting from subsection (2) “Part III” and substituting “Parts III and Xa”.
4. After Part X of the Principal Act the following Part is inserted:
“PART Xa—SUPERANNUATION UNDER OTHER LAWS
Interpretation
“153aa. (1) In this Part:
‘applicable law’ means a relevant law that is declared by the Minister, by notice published in the Gazette, to be an applicable law for the purposes of this Part;
‘eligible body’ means a relevant body that is declared by the Minister, by notice published in the Gazette, to be an eligible body for the purposes of this Part;
‘relevant body’ means:
(a) a company or other body corporate of a kind referred to in subparagraph (a) (iii) of the definition of ‘approved authority’ in subsection 3 (1); or
(b) an authority or body of a kind referred to in subparagraph (a) (iv) of that definition (other than an authority or body established under a relevant law);
being a company, body or authority that is an approved authority or that is declared by the Minister, by notice published in the Gazette, to be a relevant body for the purposes of this Part;
‘relevant law’ means a law of the Commonwealth (including this Act) or of the Australian Capital Territory;
‘superannuation benefits’ includes any benefits similar to the benefits provided under this Act;
‘superannuation scheme’ means a superannuation or retirement scheme, however established, and includes any arrangement for the provision of superannuation benefits to a person upon or by reason of that person’s ceasing to hold an office or appointment or to be employed or to the dependants of a person upon or by reason of that person’s death.
“(2) For the purposes of this Part:
(a) a reference to a person who is employed under a relevant law or an applicable law includes a reference to a person holding an office or appointment under that law; and
(b) a reference to a person who is employed by a relevant body or an eligible body includes a reference to a person holding an office or appointment in that body.
“(3) Where a person is a director of a company or other body corporate incorporated, whether before or after the commencement of this Part, under a law of the Commonwealth, a State or Territory, being a company or other body that is a relevant body, the person shall, for the purposes of this Part, be taken to be employed by the company or other body.
“(4) The Minister may, by notice published in the Gazette, declare that the person holding or occupying a particular office or position is to be taken, for the purposes of this Part, to be the employer of specified persons and, upon the publication of such a notice, the person shall be so taken.
Restrictions upon provision of superannuation
“153ab. (1) Where a person is employed under a relevant law, superannuation benefits for or in relation to the person shall not be provided under that law or any other law (other than this Act) or under terms and conditions of employment determined under any such law unless:
(a) their provision is permitted under section 153ac;
(b) the relevant law or other law expressly provides for their provision; or
(c) the relevant law or other law allows their provision and the Minister has, by writing signed by the Minister, approved their provision.
“(2) Where a person is employed by a relevant body, that body shall not provide, or arrange for the provision of, superannuation benefits for or in relation to the person unless:
(a) their provision is permitted under subsection (1);
(b) their provision is permitted under section 153ac; or
(c) the body has power to provide them and the Minister has, by writing signed by the Minister, approved their provision.
“(3) Where superannuation benefits may be provided to a person to whom subsection (1) or (2) applies without contravention of that subsection, those benefits may be provided under:
(a) a superannuation scheme that will provide benefits only for, or in relation to, such persons; or
(b) an existing or proposed superannuation scheme that will also provide superannuation benefits for, or in relation to, persons other than such persons.
“(4) Where the provision of superannuation benefits for or in relation to persons who are, or who include persons who are, employed under a relevant law or by a relevant body has been approved by the Minister under paragraph (1) (c) or (2) (c):
(a) a superannuation scheme that purports to provide those benefits has no force or effect, or no force or effect in its purported application in respect of persons so employed, unless it is approved by the Minister by writing signed by the Minister; and
(b) an amendment of a superannuation scheme that provides those benefits solely in respect of persons so employed has no force or effect unless it is approved by the Minister by writing signed by the Minister.
“(5) Where guidelines for the provision of superannuation benefits for or in relation to persons who are, or who include persons who are, employed under an applicable law or by an eligible body have been determined by the Minister under subsection 153ac (3):
(a) a superannuation scheme that purports to provide those benefits has no force or effect, or no force or effect in its purported application in respect of persons so employed, to the extent that it is inconsistent with those guidelines; and
(b) an amendment of a superannuation scheme that provides those benefits has no force or effect, or no force or effect in its purported application in respect of persons so employed, to the extent that it is inconsistent with those guidelines.
“(6) Where a superannuation scheme, not being a superannuation scheme referred to in subsection (4) or (5), purports to provide, in contravention of subsection (1) or (2), superannuation benefits for or in relation to persons who are, or who include persons who are, employed under a relevant law or by a relevant body, that superannuation scheme has no force or effect, or no force or effect in its purported application in respect of persons so employed.
“(7) Subsection (1) or (10) shall not be taken to prevent the provision of superannuation benefits under a superannuation scheme that was in existence on 23 April 1978.
“(8) Subsection (2) or (10) shall not be taken to prevent the provision of superannuation benefits by, or arranged for by, a relevant body under a superannuation scheme that was in existence immediately before the body became a relevant body.
“(9) An amendment of a superannuation scheme referred to in subsection (7) or (8), being a scheme that provides superannuation benefits solely in respect of persons of a kind referred to in subsection (1) or (2), has no force or effect unless it is approved by the Minister by writing signed by the Minister.
“(10) Without limiting the effect of subsection (4), (5), (6) or (9), superannuation benefits for or in relation to a person shall not be provided under a superannuation scheme, or under an amendment of a superannuation scheme, that has no force or effect because of that subsection.
“(11) Where the Minister has approved, under subsection 153ac (4), an aspect of the provision of superannuation benefits that would, upon its implementation, be inconsistent with the guidelines determined by the Minister in relation to the provision of those benefits, the superannuation
scheme, or an amendment of a superannuation scheme, by which that aspect is to be implemented shall not, by reason only of the inclusion of that aspect, be taken to be inconsistent with those guidelines for the purposes of subsection (5).
Provision of superannuation in accordance with Ministerial guidelines
“153ac. (1) Where a person is employed under an applicable law, superannuation benefits for or in relation to the person may be provided under that applicable law or any other relevant law (other than this Act) or under terms and conditions of employment determined under any such law, if that applicable law or that other relevant law allows the provision of those benefits and they are provided:
(a) unless paragraph (b) applies—in accordance with guidelines determined by the Minister, under subsection (3), for their provision; or
(b) where the Minister has approved, under subsection (4), any aspect of their provision that is inconsistent with the guidelines referred to in paragraph (a)—in accordance with the Minister’s approval and with the guidelines so referred to in respect of all other aspects of their provision.
“(2) Where a person is employed by an eligible body, that body may provide, or arrange for the provision of, superannuation benefits for or in relation to the person if that body has power to provide those benefits and they are provided:
(a) unless paragraph (b) applies—in accordance with guidelines, determined by the Minister, under subsection (3), for their provision by the body or under an arrangement made by the body; or
(b) where the Minister has approved, under subsection (4), any aspect of their provision by the body or under an arrangement made by the body, being an aspect that is inconsistent with the guidelines referred to in paragraph (a)—in accordance with the Ministerial approval and with the guidelines so referred to in respect of all other aspects of their provision.
“(3) The Minister may determine, in writing, guidelines for the provision of superannuation benefits for or in relation to persons employed under a particular applicable law or by a particular eligible body, and, where the Minister so determines, the Minister shall, as soon as practicable thereafter, serve, either personally or by post, a copy of the guidelines on the employer of the persons.
“(4) Where any aspect of the provision of superannuation benefits:
(a) under an applicable law or under terms and conditions of employment determined under an applicable law; or
(b) by an eligible body;
would, if it were implemented, be inconsistent with the guidelines determined by the Minister under this section in relation to their provision, the Minister may, upon being requested in writing to do so, approve that aspect.
“(5) The Minister shall not:
(a) under subsection (3), determine guidelines for the provision of superannuation benefits; or
(b) under subsection (4), approve any aspect of the provision of superannuation benefits that is inconsistent with guidelines determined by the Minister;
if the Minister’s determination of those guidelines or approval of that aspect would be inconsistent with any regulations made under the Occupational Superannuation Standards Act 1987.
“(6) The Minister may, at any time before a copy of the guidelines is served on the employer of persons in accordance with the requirements of subsection (3), communicate a copy of the guidelines to the employer by any electronic means whatsoever.
“(7) Guidelines determined by the Minister under subsection (3):
(a) shall come into force:
(i) where a copy of the guidelines is communicated to an employer of persons under subsection (6)—on the day on which they are so communicated or, if the guidelines are expressed to come into force on a later day, on that later day; or
(ii) where a copy of the guidelines is not so communicated to an employer of the persons—on the day on which a copy of the guidelines is served on the employer or, if the guidelines are expressed to come into force on a later day, on that later day; and
(b) shall be disallowable instruments within the meaning of section 46a of the Acts Interpretation Act 1901.
“(8) Guidelines determined for the provision of superannuation benefits for or in relation to persons employed under a particular applicable law, or by a particular eligible body, may relate to any matter connected with their provision or with the administration of a superannuation scheme for their provision, and, in particular, may provide that only a specified class of those persons are to be permitted to contribute to, and to be provided with benefits under, that scheme.
Effect of contravention of section 153ab or 153ac
“153ad. (1) Any act done in relation to the provision of superannuation benefits that contravenes section 153ab is void to the extent that it contravenes that section.
“(2) Any act done in relation to the provision of superannuation benefits under, or purportedly under, a superannuation scheme approved by the
Minister under section 153ab, that contravenes the terms and conditions of the scheme as so approved is void to the extent that it contravenes those terms and conditions.
“(3) Where, by reason of the operation of subsection (1) or (2), the payment of money by a person or body to another person or body is void, then, unless the Minister has declared in writing that this subsection does not apply:
(a) the money so paid is recoverable as a debt due to the person or body who paid it; and
(b) if the person or body who paid the money is the employer and the Minister has directed that person or body, by notice in writing, to take action to recover it—the person or body shall take action to recover it accordingly.
“(4) Where, by virtue of the operation of subsection 153ab (4), (5), (6) or (9), a superannuation scheme, or an amendment of a superannuation scheme, is of no force or effect, the Minister may, after having regard to the consequences to persons receiving, or likely to receive, benefits under the scheme, by determination in writing:
(a) declare the scheme or amendment, and all or any actions associated with its establishment, making or operation, to have the same force and effect as if it had made provision for superannuation benefits in accordance with the requirements of this Part; or
(b) declare the scheme or amendment, and all or any actions associated with its establishment, making or operation, to have the force and effect referred to in paragraph (a) if the employer concerned, within a period specified in the determination, takes, to the satisfaction of the Minister, such action in relation to the scheme or amendment as is specified in the determination, being action that, in the opinion of the Minister:
(i) will most effectively modify the operation of the scheme or amendment so that its effect will be substantially similar to the effect it would have had if it had made provision for superannuation benefits in accordance with the requirements of this Part; or
(ii) if it cannot be so modified—will most effectively restrict the operation of the scheme or amendment.
“(5) Where, by virtue of the operation of subsection 153ab (4), (5) or (6), a superannuation scheme, or an amendment of a superannuation scheme, is of no force or effect in its application in respect of particular persons, the Minister may, after having regard to the consequences to persons receiving, or likely to receive, benefits under the scheme, by determination in writing:
(a) declare the scheme or amendment, in its application to those persons, and all or any actions associated with its application in respect of those persons, to have the same force and effect as if it had made
provision for superannuation benefits in respect of those persons in accordance with the requirements of this Part; or
(b) declare the scheme or amendment, in its application in respect of those persons, and all or any actions associated with its application in respect of those persons, to have the force and effect referred to in paragraph (a) if the employer concerned, within a period specified in the determination, takes, to the satisfaction of the Minister, such action in relation to the scheme or amendment as is specified in the determination, being action that, in the opinion of the Minister:
(i) will most effectively modify the operation of the scheme or amendment so that the effect of its application in respect of those persons will be substantially similar to the effect its application would have had if it had made provision for superannuation benefits in respect of those persons in accordance with the requirements of this Part; or
(ii) if it cannot be so modified—will most effectively restrict the operation of the scheme or amendment in its application of those persons.
“(6) Where the Minister makes a determination under subsection (4) or (5), he or she:
(a) shall cause a copy of the determination to be given to the employer concerned; and
(b) shall cause a copy of the determination to be laid before each House of the Parliament within 5 sitting days of that House after its making.
“(7) Either House of the Parliament, within 5 sitting days of that House after a copy of a determination has been laid before that House may, in pursuance of a motion upon notice, pass a resolution disallowing the determination.
“(8) Where:
(a) a notice referred to in subsection (7) is given with respect to a determination; and
(b) at the expiration of the period during which a resolution disallowing the determination could have been passed:
(i) the notice has not been withdrawn and the relevant motion has not been called on; or
(ii) the relevant motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the determination shall be taken to have been disallowed.
“(9) If:
(a) neither House of the Parliament passes a resolution in accordance with subsection (7) disallowing a determination; and
(b) the determination is not to be taken to have been disallowed under subsection (8);
the determination takes effect on whichever of the following days is the later:
(c) the day immediately following the last day on which a resolution disallowing the determination could have been passed;
(d) where the determination is conditional upon the employer’s taking, to the satisfaction of the Minister, specified action within a specified period and the Minister is satisfied that that action is so taken—the day on which the Minister, by notice in writing given to the employer, declares himself or herself to be so satisfied.
“(10) If, before the expiration of 5 sitting days of a House of the Parliament after a copy of a direction has been laid before that House:
(a) the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(b) at the time of the dissolution, expiry or prorogation, as the case may be:
(i) a notice of motion disallowing the determination has not been withdrawn and the motion has not been called on; or
(ii) a motion disallowing the determination has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the copy of the determination shall, for the purposes of this section, be taken, to have been laid before that first-mentioned House on the first sitting day of that first-mentioned House after the dissolution, expiry or prorogation, as the case may be.
“(11) A reference in this section to the provision of superannuation benefits includes a reference to any act done in relation to the establishment or administration of a superannuation scheme for their provision, including the receipt of contributions under the scheme.”.
Repeal of section 167a
5. (1) Section 167a of the Principal Act is repealed.
(2) Where, immediately before the repeal of section 167a of the Principal Act, there was in force:
(a) an approval by the Minister, under subsection (1) of that section, of the provision of superannuation benefits—that approval continues in force, after the repeal, as if it were an approval under subsection 153ab (1) of the Principal Act as amended by this Act;
(b) an approval by the Minister, under subsection (2) of that section, of the provision of superannuation benefits—that approval continues in force, after the repeal, as if it were an approval under subsection 153ab (2) of the Principal Act as so amended;
(c) an approval by the Minister, under subsection (4) of that section, of a superannuation scheme—that approval continues in force, after
the repeal, as if it were an approval under subsection 153ab (4) of the Principal Act as so amended;
(d) an approval by the Minister, under subsection (7) of that section, of an amendment of a superannuation scheme—that approval continues in force, after the repeal, as if it were an approval under subsection 153ab (9) of the Principal Act as so amended; and
(e) a declaration by the Minister, by notice published in the Gazette in accordance with the requirements of subsection (8) of that section, to the effect that a company, body or authority is a relevant body for the purposes of that section—that declaration continues to have effect, after the repeal, as if it were a notice duly published in accordance with the requirements of subsection 153aa (1) of the Principal Act as so amended, to the effect that that company, body or authority were a relevant body for the purpose of Part Xa of the Principal Act as so amended.
Consequential amendment of Superannuation Benefit (Interim Arrangement) Act 1988
6. Section 3 of the Superannuation Benefit (Interim Arrangement) Act 1988 is amended by omitting from subsection (6) “Section 167a” and substituting “Part Xa”.
NOTE
1. No. 31, 1976, as amended. For previous amendments, see No. 51, 1976; No. 80, 1977; Nos. 17, 134, 169 and 170, 1978; Nos. 52 and 155, 1979; No. 177, 1980; No. 92, 1981; No. 92, 1983; No. 165, 1984; Nos. 80, 93, 151 and 153, 1986; and No. 38, 1988.
[Minister’s second reading speech made in—
House of Representatives on 19 October 1988
Senate on 24 November 1988]