EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Superannuation and Corporate Law
Temporary Residents’ Superannuation Legislation Amendment Act 2008
Proclamation
Subsection 2(1) of the Temporary Residents’ Superannuation Legislation Amendment Act 2008 (the Act) provides that Schedule 1 to the Act commences on a day fixed by Proclamation. However, if any of the provisions of Schedule 1 do not commence within six months of the date the Act receives Royal Assent, then those provisions commence on the first day after the end of that six month period. The Act recently received Royal Assent.
The Proclamation fixes 18 December 2008 as the day which Schedule 1 to the Act commences. Schedule 1 contains the operative provisions of the Act.
The Act provides the framework for the unclaimed superannuation of temporary residents to be paid to the Commonwealth following their departure from Australia. The amounts can be recovered from the Commissioner of Taxation at any time. Schedule 1 contains amendments to the Superannuation (Unclaimed Money and Lost Members) Act 1999, so that when temporary resident visa holders leave Australia without taking their superannuation with them, relevant amounts are reportable and payable to the Commissioner of Taxation as unclaimed superannuation.
Schedule 1 also contains consequential amendments to the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 to support the measure.
The commencement date enables the Australian Taxation Office and the Department of Immigration and Citizenship, on behalf of the Commonwealth, to put systems in place to administer the collection of unclaimed superannuation in accordance with the Act.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Temporary Residents’ Superannuation Legislation Amendment Act 2008 was enacted to address the problem of unclaimed superannuation funds left behind by temporary residents who depart from Australia. The Act was introduced to amend the Superannuation (Unclaimed Money and Lost Members) Act 1999, ensuring that when temporary residents leave the country without collecting their superannuation, the relevant amounts are reported and can be paid to the Commonwealth as unclaimed superannuation. The amendments also extend to the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 to support this measure. This legislation was enacted by the Australian Parliament with the policy objective of ensuring that unclaimed superannuation funds of temporary residents are managed efficiently and can be recovered by the Commonwealth. The Act was proclaimed to commence on 18 December 2008, providing a clear framework for the administration and collection of these funds by the Australian Taxation Office and the Department of Immigration and Citizenship.
Scope and Application
The Temporary Residents’ Superannuation Legislation Amendment Act 2008 applies to temporary resident visa holders who leave Australia without withdrawing their superannuation funds, ensuring these funds are reportable and payable to the Commonwealth as unclaimed superannuation. This Act amends the Superannuation (Unclaimed Money and Lost Members) Act 1999 to facilitate the payment of these unclaimed superannuation funds to the Commissioner of Taxation, who can then recover these amounts on behalf of the Commonwealth. Additionally, the Act makes consequential amendments to the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 to support the new framework for handling unclaimed superannuation from temporary residents. The legislation has a national jurisdictional reach, applying across all states and territories in Australia. The provisions of Schedule 1, which contains the operative changes, commence on 18 December 2008, providing the Australian Taxation Office and the Department of Immigration and Citizenship with the necessary time to implement systems for administering the collection of these funds. This Act does not specify any exclusions, exemptions, or thresholds and extends its application solely through the amendments outlined in Schedule 1.
Key Provisions
The Temporary Residents’ Superannuation Legislation Amendment Act 2008 (the Act) primarily operates through its Schedule 1, which introduces significant changes to existing superannuation legislation to ensure that unclaimed superannuation of temporary residents is paid to the Commonwealth following their departure from Australia. The Act amends the Superannuation (Unclaimed Money and Lost Members) Act 1999, making it mandatory for temporary resident visa holders to report and pay their superannuation to the Commissioner of Taxation if they leave Australia without it. This change is designed to prevent temporary residents from leaving the country with their superannuation funds unclaimed. Additionally, Schedule 1 includes consequential amendments to the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953, ensuring that these legislative changes are properly integrated and administered.
The Act imposes specific obligations on the parties it governs, particularly on temporary resident visa holders. Under the amended Superannuation (Unclaimed Money and Lost Members) Act 1999, temporary residents are required to report their superannuation balances to the Commissioner of Taxation before leaving Australia. Failure to do so may result in those superannuation funds being considered unclaimed and payable to the Commonwealth. The Department of Immigration and Citizenship, along with the Australian Taxation Office, must ensure that systems are in place to facilitate the reporting and payment of these superannuation funds. This includes providing the necessary infrastructure and guidelines to assist temporary residents in complying with their obligations.
Breaching the provisions of the Act can lead to serious consequences, both civil and criminal. For instance, under the amended Superannuation (Unclaimed Money and Lost Members) Act 1999, temporary residents who fail to report and pay their superannuation amounts may face penalties. The exact penalties are not specified in the Explanatory Statement, but such breaches could potentially lead to fines or other administrative actions. Additionally, if the failure to report or pay results in significant revenue loss to the Commonwealth, it could also result in criminal charges, depending on the circumstances and the intent behind the non-compliance. The severity of the penalties reflects the importance of ensuring that temporary residents' superannuation is properly accounted for and paid to the Commonwealth.