Thirty-first Amending Deed to the Trust Deed to Establish an Occupational Superannuation Scheme for Australian Government Employees and Certain Other Persons (the Public Sector Superannuation Scheme)

Administered by Department of Finance

Legislation au F2008L02863 In force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Minister for Superannuation and Corporate Law acting for and on behalf of the Minister for Finance and Deregulation

Superannuation Act 1990

Thirty-first 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-first Amending Deed

On 29 July 2008 the Minister for Superannuation and Corporate Law, acting for and on behalf of the Minister, amended the Rules for the PSS set out in the Schedule to the Trust Deed by signed instrument. That instrument is called the Thirty-first Amending Deed in this statement.

The purpose of the Thirty-first Amending Deed is to amend the Rules to make enhancements to the PSS to ensure the scheme complies with the requirements of the Superannuation Guarantee (Administration) Act 1992 from 1 July 2008.  Background information on the changes and the details of the Thirty-first 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’s consent is not required where the amendment relates to a payment by an employer-sponsor (within the meaning of the Superannuation Industry (Supervision) Act 1993 (the SIS Act) that will, after the making of the amendment, be required or permitted to be made under the 1990 Act.

None of the amendments included in the Thirty-first Amending Deed require the consent of ARIA, as the amendments relate to a payment by an employer-sponsor.

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.  The Executive Unit of ARIA and ComSuper (which administers the PSS) were consulted on the administrative application of the changes in the Amending Deed.  An actuary was consulted on actuarial issues related to the changes.

Commencement

The amendments in the Deed come into effect on the day after they were registered on the Federal Register of Legislative Instruments.


ATTACHMENT

BACKGROUND TO AND DETAILS OF THE THIRTY-FIRST AMENDING DEED

Background

Superannuation Guarantee Additional Amount

Since 1 July 2008, all employers have been required to use Ordinary Time Earnings (OTE) as the basis for calculating whether the superannuation contributions they make into superannuation schemes on behalf of employees comply with the minimum contribution rate (9%) under the Superannuation Guarantee (Administration) Act 1992 (SG Act).  This requirement applies to the Public Sector Superannuation Scheme (PSS).

  • Before 1 July 2008, employer obligations in the PSS were calculated using the superannuation salary in the PSS, which is generally lower than OTE.  This is because OTE includes components of earnings not recognised as superannuation salary, such as performance bonuses.

2.                      Before 1 July 2008, benefits payable from the PSS complied with the SG Act requirements.  In very limited cases this has been achieved through the payment of a top-up benefit from the scheme, in addition to the schemes standard benefits.

3.                      In most cases after 1 July 2008, the PSS will continue to pay benefits to members that are equal to or greater than the minimum required under the SG Act.  However, some new provisions have been inserted, and some minor changes made to the existing provisions relating to top-up benefits, to ensure this occurs in all cases, going forward.  The Thirty-first Amending Deed makes these changes.

4.                      To ensure that the PSS complies with the requirements under the SG Act, the Deed includes a provision which backdates to 1 July 2008 the entitlement to a top-up benefit based on OTE (this backdating covers both the new top-up provisions and the existing top-up provisions that have been changed).

Details of the Amending Deed

Commencement

5.                      Clause 1 provides that the amendments in the Deed commence on the day after the Deed is registered on the Federal Register of Legislative Instruments.

Context

6.                      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.

Application of Deed

7.                      Clause 3 provides for the entitlement to a top-up benefit, based on OTE, to be backdated to 1 July 2008 (this backdating covers both the new top-up provisions and the existing top-up provisions that have been changed).  This ensures that the PSS complies with the requirements under the SG Act from that date.

 

 

 

Amendments to the Rules

Clause 4 - Amendments relating to provision of a superannuation guarantee additional amount

8.                      Subclause 4.1 inserts a new definition for superannuation guarantee additional amount in Rule 1.2.1.  The amount is a top up to ensure compliance with the superannuation guarantee (SG) and is determined by the Board (ARIA) having regard to the charge percentage specified in the Superannuation Guarantee (Administration) Act 1992 and to the advice of an actuary.

9.                      Subclauses 4.2 to 4.48 amend a number of Rules to provide for payment of a superannuation guarantee additional amount.  Details of these amendments are included in the following table.

Clause

Rule

Effect of Clause

Reason for Change

Division 1 of Part 6 –
Resignation etc

4.2

6.1.1

Replaces (a)(i)

Increases benefit by any SG additional amount

4.3

6.1.3

Replaces (a)

Increases benefit by any SG additional amount

Division 2 of Part 6 –
Voluntary Retirement, etc — After Minimum Retiring Age

4.4

6.2.1

Replaces (a), inserts (aa)

Provides that where a person takes their benefit as a cash lump sum or as a combination of cash lump sum and rollover, that the total lump sum benefit paid is increased by any SG additional amount

4.5

6.2.1A

New Rule

Division 3 of Part 6 –
Involuntary Retirement

4.6

6.3.2

Replaces (a)(i)

Increases benefit by any SG additional amount

4.7

6.3.2

Replaces (c)

Increases benefit by any SG additional amount

4.8

6.3.3

Replaces (a), inserts (aa)

Provides that where a person takes their benefit as a cash lump sum or as a combination of cash lump sum and rollover, that the total lump sum benefit paid is increased by any SG additional amount.

4.9

6.3.3

Replaces (c)

Increases benefit by any SG additional amount

4.10

6.3.3A

New Rule

See comments in relation to clause 3.9

Division 5 of Part 6 –
Invalidity Retirement

4.11

6.5.1

Replaces (b)

Increases benefit by any SG additional amount

4.12

6.5.2

Replaces (a)

Increases benefit by any SG additional amount

4.13

6.5.3

Replaces Rule

Increases benefit by any SG additional amount

Division 6 of Part 6 –
Sale or Transfer of Assets

4.14

6.6.3

Replaces (i)

Increases benefit by any SG additional amount

4.15

6.6.5

Replaces (a)(ii)

Increases benefit by any SG additional amount

4.16

6.6.5

Replaces (b), inserts (bb)

Provides that where a person takes their benefit as a cash lump sum or as a combination of cash lump sum and rollover, that the total lump sum benefit paid is increased by any SG additional amount

4.17

6.6.5

Replaces (d)

Increases benefit by any SG additional amount

Division 8 of Part 6 –
Transfers to Other Superannuation Schemes

4.18

6.8.6

Amends Rule

Increases benefit by any SG additional amount

4.19

6.8.7

Replaces Rule

Increases benefit by any SG additional amount

Division 1 of Part 7 –
Death of a Member

4.20

7.1.2A 7.1.2B

New Rules

New Rule 7.1.2A increases the lump sum benefit payable to a spouse by any SG additional amount, where the spouse’s reversionary pension has not been apportioned and the spouse elects to convert the pension to a lump sum benefit

New Rule 7.1.2B increases the lump sum benefits payable by any SG additional amount, where a reversionary pension is apportioned between a number of spouses and all spouses elect to convert their pension to a lump sum benefit

4.21

7.1.5

Replaces Rule

Increases benefit by any SG additional amount

Division 2 of Part 7 –
Death of a Limited Benefits Member

4.22

7.2.1

Replaces Rule

Increases benefit by any SG additional amount

4.23

7.2.3

Replaces Rule

Increases benefit by any SG additional amount

4.24

7.2.4

Replaces Rule

Increases benefit by any SG additional amount

Division 3 of Part 7 –
Death of a Pensioner

4.25

7.3.3

Replaces (c)

Increases benefit by any SG additional amount

4.26

7.3.4

Amends Rule

Increases benefit by any SG additional amount

4.27

7.3.5

Replaces (c)

Increases benefit by any SG additional amount

Division 4 of Part 7 –
Death of a Preserved Benefit Member

4.28

7.4.1

Replaces Rule

Increases benefit by any SG additional amount

4.29

7.4.3

Replaces Rule

Provides that where a deceased member’s preserved benefit has been apportioned between a number of spouses and all spouses have chosen to take their benefit as a lump sum, the amount of each spouse’s respective lump sum is increased by a proportion of any SG additional amount applicable in respect of the deceased preserved benefit member

4.30

7.4.3A

New Rule

4.31

7.4.5

Replaces Rule

Consequential amendment as a result of changes made to Rule 7.4.3 by clause 3.30

4.32

7.4.6

Replaces Rule

Increases benefit by any SG additional amount

4.33

7.4.7

Replaces Rule

Increases benefit by any SG additional amount

Division 1 of Part 8 –
Access to the Full Amount of a Preserved Benefit

4.34

8.1.1

Replaces (f)

Consequential amendment as a result of amendments made to Rule 6.8.7 by clause 3.20

Division 2 of Part 8 –
Benefit Options Relating to Preserved Benefits

4.35

8.2.1

Replaces (B)

Increases benefit by any SG additional amount

4.36

8.2.2

Replaces (b)

Increases benefit by any SG additional amount

4.37

8.2.4

Replaces Rule

Increases benefit by any SG additional amount

Division 3 of Part 8 –
Early Access to Part of a Preserved Benefit

4.38

8.3.5A 8.3.5B

New Rules

New Rule 8.3.5A provides that the amount of lump sum or lump sums paid under Rule 8.3.5 can be equal to the member’s preserved benefit plus any SG additional amount

New Rule 8.3.5B provides that where the total amounts paid under Rule 8.3.5 are greater than the preserved benefit but less than an amount equal to the preserved benefit plus any SG additional amount, that the balance is to be treated as a preserved benefit under the SIS Act and dealt with accordingly.

4.39

8.3.6A 8.3.6B

New Rules

New Rule 8.3.6A provides that the amount of lump sum or lump sums paid under Rule 8.3.6 can be equal to the member’s preserved benefit plus any SG additional amount.

New Rule 8.3.6B provides that where the total amounts paid under Rule 8.3.6 are greater than the preserved benefit but less than an amount equal to the preserved benefit plus any SG additional amount, that the balance is to treated as a preserved benefit under the SIS Act and dealt with accordingly.

Division 4 of Part 8 –
Early Access to Preserved Benefit on Involuntary Retirement after Sale or Transfer of Assets

4.40

8.4.3

Replaces (c)

Increases benefit by any SG additional amount

4.41

8.4.3

Replaces (d)(ii)

Increases benefit by any SG additional amount

4.42

8.4.4

Replaces (a), inserts (aa)

Provides that where a person takes their benefit as a cash lump sum or as a combination of cash lump sum and rollover, that the total lump sum benefit paid is increased by any SG additional amount

4.43

8.4.4

Replaces (d)

Increases benefit by any SG additional amount

4.44

8.4.4A

Replaces Rule

Consequential amendment as a result of amendments made by clause 3.43 to Rule 8.4.4

Division 5 of Part 9 –
Adjusting Pensions — Number of Beneficiaries Changes

4.45

9.5.5

Replaces Rule

Increases benefit by any SG additional amount

Division 3 of Part 11 –
Transfer Amounts — Benefits where transfer amount paid in before 1 January 1996

4.46

11.3.26

Replaces (a)(iii)

Increases benefit by any SG additional amount

4.47

11.3.26

Replaces (b)

Increases benefit by any SG additional amount

4.48

11.3.27

Replaces (c)

Increases benefit by any SG additional amount

 

 

Overview

The Superannuation Act 1990 was enacted to establish and regulate occupational superannuation schemes in Australia, including the Public Sector Superannuation Scheme (PSS) for Commonwealth employees. The Act provides the legislative framework for the administration and compliance of these schemes. The Thirty-first Amending Deed to the Trust Deed of the PSS, enacted on 29 July 2008, was introduced to ensure the PSS complies with the requirements of the Superannuation Guarantee (Administration) Act 1992. This deed, made by the Minister for Superannuation and Corporate Law under the authority of the Superannuation Act, aims to amend the rules governing the PSS by adjusting the basis for calculating employer obligations to ensure compliance with the new superannuation guarantee requirements that took effect from 1 July 2008. The deed introduces changes such as backdating the entitlement to a top-up benefit based on Ordinary Time Earnings and adjusts various rules to provide for the payment of a superannuation guarantee additional amount. The Thirty-first Amending Deed was enacted by the Australian Government through the Minister for Superannuation and Corporate Law, acting on behalf of the Minister for Finance and Deregulation. The policy objective of the deed was to enhance the PSS to ensure it met the compliance requirements of the Superannuation Guarantee (Administration) Act 1992, thereby safeguarding the benefits of PSS members in accordance with the new legislative framework. The deed was made under the authority of the Superannuation Act 1990, ensuring that the amendments were aligned with the overarching objectives of the superannuation legislation in Australia.

Scope and Application

The Thirty-first Amending Deed to the Trust Deed of the Public Sector Superannuation Scheme (PSS) applies to the scheme itself, which is established under the Superannuation Act 1990. This Act governs the administration and operation of the PSS, which provides benefits to certain Commonwealth employees and other specified individuals. The amendments made by the Thirty-first Amending Deed are intended to ensure compliance with the Superannuation Guarantee (Administration) Act 1992, particularly in relation to the calculation of superannuation contributions based on Ordinary Time Earnings (OTE) rather than superannuation salary. The changes apply to all employers who contribute to the PSS, including the Commonwealth itself, and cover various scenarios such as resignation, voluntary retirement, and death of a member. The amendments are designed to ensure that all benefits paid out by the PSS meet or exceed the minimum requirements set by the Superannuation Guarantee (Administration) Act 1992. The Deed does not require the consent of the Australian Reward Investment Alliance (ARIA), as it pertains to payments by employer-sponsors. The amendments come into effect on the day after the Deed is registered on the Federal Register of Legislative Instruments.

Key Provisions

The main operative sections of the Thirty-first Amending Deed to the Trust Deed (the "Amending Deed") pertain to the amendments made to the Public Sector Superannuation Scheme (PSS) Rules to ensure compliance with the Superannuation Guarantee (Administration) Act 1992 (the "SG Act"). Clause 3 of the Deed backdates the entitlement to a top-up benefit based on Ordinary Time Earnings (OTE) to 1 July 2008, which encompasses both new top-up provisions and changes to existing provisions. Clause 4 further details the amendments to the Rules concerning the provision of a superannuation guarantee additional amount. This amount is intended to ensure compliance with the SG Act and is determined by the Board (the Australian Reward Investment Alliance, ARIA) with consideration of the charge percentage specified in the SG Act and actuarial advice. The obligations and requirements imposed by the Amending Deed on the parties involved, primarily ARIA as the trustee for the PSS, include ensuring that the PSS complies with the SG Act requirements from 1 July 2008. This involves calculating employer obligations using OTE as the basis for determining compliance with the minimum contribution rate of 9%. The Deed also mandates the payment of a superannuation guarantee additional amount to members to ensure that benefits are equal to or greater than the minimum required under the SG Act. ARIA must implement these changes by amending the Rules, as detailed in Clause 4, to increase benefits by any superannuation guarantee additional amount in various scenarios, including resignation, voluntary retirement, involuntary retirement, invalidity retirement, death of a member, and early access to preserved benefits. Breach of the obligations and requirements set out in the Amending Deed could lead to civil or criminal consequences. While the explanatory statement does not explicitly outline specific offences, penalties, or consequences for non-compliance, the amendments are designed to ensure that the PSS adheres to the legislative requirements of the SG Act. Non-compliance could potentially result in legal action against ARIA or other responsible parties, and failure to make the necessary adjustments to the Rules could lead to financial penalties or other legal repercussions. It is important for all parties involved to adhere to the provisions of the Amending Deed to maintain the integrity and compliance of the PSS.

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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.