Tenth Amendment of the Superannuation (PSSAP) Trust Deed

Administered by Department of Finance

Legislation au F2013L02063 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Minister for Finance

Superannuation Act 2005

Tenth Amending Deed made under section 11 of the Superannuation Act 2005 to amend the Superannuation (PSSAP) Trust Deed and Rules.

On 29 June 2005 the Minister for Finance, for and on behalf of the Commonwealth, made a deed (the Trust Deed) under section 10 of the Superannuation Act 2005 (the 2005 Act) to, among other things, establish a superannuation scheme, to be known as the Public Sector Superannuation Accumulation Plan (PSSAP), and the PSSAP Fund from 1 July 2005. The Schedule to the Trust Deed includes rules for the administration of the PSSAP (the Rules).

The PSSAP is established for the benefit of most new Australian Government employees and statutory office holders. Commonwealth Superannuation Corporation (CSC) is the trustee for the PSSAP.

Section 11 of the 2005 Act provides that the Minister may amend the Trust Deed by signed instrument, subject to obtaining the consent of CSC to the amendment where necessary.

Tenth Amending Deed

The Minister amended the Rules by signed instrument. That instrument is called the Tenth Amending Deed in this Statement.

The purpose of the Tenth Amending Deed is to amend the Rules to make consequential changes to allow a person to be paid a lump sum amount from the PSSAP to pay their liability for any tax assessed under Division 293 of the Income Tax Assessment Act 1997 (Division 293 tax) and for their PSSAP benefit to be reduced accordingly.

The Tenth Amending Deed also amends the Rules to provide that the calculation of a superannuation contribution shortfall uses the relevant Superannuation Guarantee charge percentage.

Background information on the changes and the details of the Tenth Amending Deed are set out in Attachment A.

CSC Approval

Although section 11 of the 2005 Act allows the Minister to amend the PSSAP Trust Deed, section 32 of the 2005 Act requires CSC to consent to the amendments in most circumstances. CSC has consented to the amendments contained in the Tenth Amending Deed. However, CSC consent was not required for the amendments relating to employer contribution shortfalls.

Legislative Instruments Act 2003

The Tenth Amending Deed is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). Although section 44 of the LIA exempts superannuation instruments from disallowance, the Tenth Amending Deed is subject to disallowance in accordance with section 11 of the 2005 Act.

Consultation

Section 17 of the LIA specifies that rule-makers should consult before making legislative instruments. CSC and ComSuper have been consulted on amendments contained in the Tenth Amending Deed.

Commencement

The amendments in the Tenth Amending Deed come into effect on the day after it is registered on the Federal Register of Legislative Instruments.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Attachment B.

ATTACHMENT A

BACKGROUND TO AND DETAILS OF THE TENTH AMENDING DEED

Commencement

Clause 1 specifies that the amendments to the Public Sector Superannuation Accumulation Plan (PSSAP) Rules made by the Tenth Amending Deed commence on the day after it is registered on the Federal Register of Legislative instruments.

Interpretation

2. Clause 2 indicates that, unless a contrary intention appears, a word or phrase in the Tenth Amending Deed has the same meaning that it has in the Trust Deed and the Rules.

Sustainable Superannuation Concessions

3. The ‘sustaining the superannuation contribution concession’ measure reduces the tax concession that individuals with adjusted incomes above $300,000 receive on their concessionally taxed superannuation contributions from 30 per cent to 15 per cent, excluding the Medicare levy (Division 293 tax).

4. This reduction was included in Schedule 3 to the Tax and Superannuation Laws Amendment (Increased Concessional Contributions Cap and Other Measures) Act 2013 which amended a number of Acts, including the Taxation Administration Act 1953 (TAA 1953) and the Income Tax Assessment Act 1997 (ITAA 97).

5. Where an individual incurs a Division 293 tax liability the Commissioner of Taxation (the Commissioner) must issue a release authority to the individual. Alternatively, if a Division 293 tax liability that is due and payable remains unpaid 120 days after the release authority is issued, the Commissioner may issue a release authority directly to the trustee of a superannuation fund that holds a defined contribution interest for the individual.

6. If the trustee of a defined contribution scheme, such as the PSSAP, receives a release authority from an individual or the Commissioner, the trustee is required to release a lump sum amount for the purpose of paying all or part of the individual’s Division 293 tax liability.

7. The amendments made by the Tenth Amending Deed reflect the obligation on the Commonwealth Superannuation Corporation (CSC) as trustee of the PSSAP to release a lump sum amount when presented with a release authority. Where this occurs CSC will reduce the PSSAP member’s benefit to reflect the amount that has been released.

8. Subclause 3.1 amends the definition of release authority contained in Rule 1.2.1 of the Trust Deed. The definition is amended to include a release authority issued by the Commissioner of Taxation under item 1 and 2 of the table in subsection 135-10(1) of Schedule 1 to the TAA 1953.

9. The note inserted by Subclause 3.2 immediately after Rule 3.1.11A explains that where a payment in respect of a release authority issued under item 1 or 2 of the table in subsection 135-10(1) of Schedule 1 to the TAA 1953 is made, Rule 3.1.11A is subject to Division 135 of Schedule 1 to that Act, which sets out the rules about release authorities and allows money to be released from a superannuation plan.

Item 1 relates to the Commissioner of Taxation’s obligation to issue a release authority where an amount of assessed Division 293 tax for an income year is due and payable.
Item 2 relates to the Commissioner of Taxation’s obligation to issue a release authority where an amount of assessed Division 293 tax in respect of a defined benefit interest for an income year is deferred for payment. Individuals may request that a release amount be paid from a defined contribution interest, including an interest held in PSSAP, by submitting the release authority to the trustee of that fund.

Employer Contribution Shortfalls

10. Rule 2.2.9 requires each designated employer, each quarter, to inform CSC and the member of the amount and percentage of basic and additional employer contributions in respect of an ordinary employer-sponsored member. Rule 2.2.10 requires notification of any employer contribution shortfall to CSC and the member, calculating a shortfall to be the amount by which the amount reported under Rule 2.2.9 falls short of 9 per cent.

11. Subclause 4.1 amends Rule 2.2.10 to update the superannuation charge percentage used for calculating an employer contribution shortfall by referencing the table at subsection 19(2) of the Superannuation Guarantee (Administration) Act 1992. This will ensure that the percentage used for the calculation of the shortfall will increase in line with the increase in the superannuation guarantee charge percentage.

ATTACHMENT B

Overview

The Superannuation Act 2005, enacted in 2005, established a legislative framework for superannuation schemes in Australia, including the Public Sector Superannuation Accumulation Plan (PSSAP). This Act aimed to address the need for a structured and regulated system to manage superannuation contributions, benefits, and administration for public sector employees. The Tenth Amending Deed, made under section 11 of the Superannuation Act 2005, was introduced to amend the PSSAP Trust Deed and Rules to incorporate specific changes, particularly to allow individuals to access lump sum payments from their superannuation to pay Division 293 tax liabilities and to adjust the calculation of employer contribution shortfalls using the relevant Superannuation Guarantee charge percentage. The Tenth Amending Deed was issued by the Minister for Finance and required the consent of the Commonwealth Superannuation Corporation (CSC), which was obtained for most amendments, except those relating to employer contribution shortfalls. The amendments, which are subject to disallowance under the 2005 Act, come into effect on the day after registration on the Federal Register of Legislative Instruments. The policy objective of these amendments is to ensure that the PSSAP remains compliant with current tax laws and regulatory requirements, thereby maintaining the integrity and functionality of the superannuation scheme for public sector employees.

Scope and Application

The Tenth Amending Deed, made under section 11 of the Superannuation Act 2005, amends the Public Sector Superannuation Accumulation Plan (PSSAP) Trust Deed and Rules, which govern the PSSAP established for most new Australian Government employees and statutory office holders. The Commonwealth Superannuation Corporation (CSC) serves as the trustee for the PSSAP. The Tenth Amending Deed introduces consequential changes to allow a person to be paid a lump sum from the PSSAP to pay their liability for any tax assessed under Division 293 of the Income Tax Assessment Act 1997 (Division 293 tax) and for their PSSAP benefit to be reduced accordingly. Additionally, the amendments ensure that the calculation of a superannuation contribution shortfall uses the relevant Superannuation Guarantee charge percentage. The Tenth Amending Deed, while exempt from disallowance under the Legislative Instruments Act 2003, is subject to disallowance in accordance with the Superannuation Act 2005. These amendments come into effect on the day after the Tenth Amending Deed is registered on the Federal Register of Legislative Instruments.

Key Provisions

The Tenth Amending Deed made under section 11 of the Superannuation Act 2005 introduces changes to the Public Sector Superannuation Accumulation Plan (PSSAP) Trust Deed and Rules. Primarily, it modifies the Rules to facilitate the payment of a lump sum from the PSSAP to cover a person's liability for Division 293 tax, subsequently reducing the PSSAP benefit accordingly (Clause 3). This change aligns with the obligation of the Commonwealth Superannuation Corporation (CSC) as the trustee of the PSSAP to release a lump sum amount when presented with a release authority from the Commissioner of Taxation. Additionally, the Tenth Amending Deed revises the calculation of a superannuation contribution shortfall to align with the relevant Superannuation Guarantee charge percentage (Clause 4). The Tenth Amending Deed imposes certain obligations on the parties involved. Firstly, it mandates that CSC, as the trustee of the PSSAP, must release a lump sum amount from the PSSAP to pay the Division 293 tax liability when presented with a valid release authority. This release must be accompanied by a corresponding reduction in the PSSAP benefit (Rule 3). Additionally, the amendment requires designated employers to inform CSC and the member of the amount and percentage of basic and additional employer contributions each quarter and to notify any employer contribution shortfall (Rule 2.2.9 and 2.2.10). The amendment ensures that the calculation of the employer contribution shortfall will reflect the current Superannuation Guarantee charge percentage (Rule 2.2.10, amended by Clause 4). The Tenth Amending Deed does not explicitly state any new offences, penalties, or consequences for breach. However, failure to comply with the requirements set forth, such as not releasing a lump sum amount upon receipt of a release authority or inaccurately reporting employer contributions, could potentially lead to administrative or legal consequences. These might include fines or other penalties imposed under the Superannuation Act 2005 or related legislation, depending on the specific circumstances and any subsequent regulatory actions. Given the complexity of superannuation laws and their interplay with tax laws, non-compliance could also result in tax-related penalties or investigations by the Australian Taxation Office.

Area of Law: Superannuation Law
Instrument: Amending Act
Concepts: Definitions & Interpretation; Reporting & Disclosure Obligations; Repeal & Amendment; Compliance Obligations

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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