EXPLANATORY STATEMENT

Issued by authority of the Minister for Finance and Deregulation

Superannuation Act 1990

Thirty-fifth Amending Deed to the Trust Deed to establish an occupational superannuation scheme for Australian Government employees and certain other persons pursuant to section 5 of the Superannuation Act 1990 (1990 Act).

An occupational superannuation scheme to provide benefits for certain of the Commonwealth’s employees and for certain other people was established by Trust Deed dated 21 June 1990, under section 4 of the 1990 Act.  The occupational superannuation scheme is called the Public Sector Superannuation Scheme (PSS).

Section 5 of the 1990 Act provides that the Minister may amend the Trust Deed by signed instrument, subject to obtaining the consent of the Australian Reward Investment Alliance (ARIA) to the amendment where necessary.  ARIA is the trustee for the PSS.

Thirty-fifth Amending Deed

The Minister amended the Trust Deed and the Rules for the PSS set out in the Schedule to the Trust Deed by signed instrument.  That instrument is called the Thirty-fifth Amending Deed in this statement.

The purpose of the Thirty-fifth Amending Deed is to amend the Trust Deed and Rules as part of public sector superannuation reforms provided for in the Governance of Australian Government Superannuation Schemes Act 2011.  Background information on the changes and the details of the Thirty-fifth Amending Deed are set out in the Attachment.

Approval by ARIA

Section 5 of the 1990 Act deals with amendments made to the Trust Deed.  That section allows the Minister to amend the Trust Deed provided, in respect of certain amendments, ARIA has consented to those amendments.

ARIA has consented to the amendments included in the Thirty-fifth Amending Deed.

Legislative Instruments Act 2003

The 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 Amending Deed is subject to possible disallowance in accordance with section 45 of the 1990 Act.

Section 17 of the LIA specifies that rule-makers should consult before making legislative instruments.  ARIA was consulted on the amendments included in the Thirty-fifth Amending Deed.

Commencement

The amendments in the Deed commence on the commencement of the Governance of Australian Government Superannuation Act 2011.

ATTACHMENT

BACKGROUND TO AND DETAILS OF THE THIRTY-FIFTH AMENDING DEED

Background

The Thirty-fifth Amending Deed forms part of public sector superannuation reforms.  The package of reforms involves the following:

• the Governance of Australian Government Superannuation Schemes Act 2011 (Governance Act) which merged the Australian Reward Investment Alliance (ARIA), the Military Superannuation and Benefits Board and the Defence Force Retirement and Death Benefits Authority to form a consolidated trustee body;
• the ComSuper Act 2011 which made changes to the governance framework for superannuation administration arrangements for the main civilian and military superannuation schemes; and
• the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011 (Consequentials Act) which contains the consequential and transitional provisions necessary to facilitate the merger and the changes to superannuation administration.

Effect of the Governance Act and consequential amendments

Before the commencement of the Governance Act, ARIA (referred to as ‘the Board’) had certain powers and functions in the Superannuation Act 1990 (1990 Act) and the Public Sector Superannuation Scheme (PSS) Trust Deed and Rules made under that Act.

The Governance Act established the Commonwealth Superannuation Corporation (CSC) as a body corporate with a separate legal identity from the Commonwealth, by continuing in existence the body corporate that was previously called ARIA.

• As a consequence, references to “the Board” in a number of legislative instruments required amendment to refer to “CSC”.

CSC is the trustee of the superannuation schemes for which it is responsible. CSC has a governing board which comprises a Chair and ten directors (directors).

• As a consequence, references to “Trustees” in a number of legislative instruments required amendment to refer to “directors”.

CSC’s functions are set out in section 8 of the Governance Act and its powers and functions in relation to the PSS and PSS Fund are set out in the 1990 Act and the PSS Trust Deed and Rules made under that Act.

Effect of the ComSuper Act 2011 and the Consequentials Act

The Commissioner for Superannuation was previously responsible for providing administrative services to the Board.  The ComSuper Act 2011 provides for a new position of the Chief Executive Officer (CEO) of ComSuper whose function is to provide administrative services to CSC.

Division 3 of Schedule 2 to the Consequentials Act contains transitional provisions providing for references in Acts and instruments to the Commissioner to have effect as if those references were to CSC, ComSuper or the CEO of ComSuper (whichever is appropriate).

• These provisions mean that there is no general need to update references to the Commissioner in legislative instruments.  However, in some instances it was beneficial to update references to the Commissioner for the sake of clarity.

Details of the Amending Deed

Commencement

Clause 1 provides that the amendments in the Deed commence on the commencement of the Governance Act.

Context

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

Amendments to the Trust Deed

Clauses 3 to 7 amend the Trust Deed, as shown in the table below.

Amendments to the Rules

Clause 8 amends the Rules, as shown in the table below.