Twenty-Sixth 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 F2005L02372 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by authority of the Minister for Finance and Administration

 

Superannuation Act 1990

 

 

Twenty-sixth 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).

 

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

Section 5 of the 1990 Act provides that the Minister for Finance and Administration may amend the Trust Deed by signed instrument, subject to obtaining the consent of the PSS Board (the Board) to the amendment where necessary.

Twenty-sixth Amending Deed

On 22 August 2005 the Minister for Finance and Administration amended the Rules for the administration of the PSS set out in the Schedule to the Trust Deed by signed instrument.  That instrument is called the Twenty-sixth Amending Deed in this statement.

The purpose of the Twenty-sixth Amending Deed is to amend the Rules to change the amount by which a PSS benefit can be reduced where the member has a surcharge debt, to reflect the abolition of the surcharge in the 2005-06 and later financial years.

The surcharge is an extra charge levied on the surchargeable superannuation contributions of higher income individuals.  The Superannuation Laws Amendment (Abolition of Surcharge) Act 2005 amended a range of superannuation legislation to abolish the surcharge in the 2005‑06 and later financial years.

Details of the Twenty-sixth Amending Deed are set out in the Attachment.

Board approval not required

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, that the Board has consented to those amendments.  However, paragraph 5(1A)(b) of the 1990 Act prescribes a number of circumstances where the Board’s consent is not required to an amendment to the Trust Deed.

Sub-paragraph 5(1A)(b)(i) of the 1990 Act provides that the consent of the Board is not required in respect of an amendment that 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.  Subsection 5(1B) of the 1990 Act provides that for the purposes of that sub-paragraph a payment under the Trust Deed or the Rules is taken to be a payment by an employer-sponsor.

The amendments included in the Twenty-sixth Amending Deed affect the amount of surcharge deductions that are made from the employer component of PSS benefits.  As employer benefits are payable under the PSS Rules and are paid by the Commonwealth, these amendments relate to a payment by an employer-sponsor because of subsection 5(1B) of the 1990 Act.  The amendments therefore did not require the consent of the Board.

Legislative Instruments Act 2003

Section 17 of the Legislative Instruments Act 2003 (LIA) specifies that rule-makers should consult before making legislative instruments.  The Twenty-sixth Amending Deed is a legislative instrument for the purposes of the LIA.

No consultation was undertaken as the amendments included in the Deed are beneficial to PSS members and give effect, in terms announced in the Budget, to a decision to repeal, impose or adjust a tax, fee or charge.

Commencement

The amendments to the Rules made by the Twenty-sixth Amending Deed come into effect on the day on which the Superannuation Laws Amendment (Abolition of Surcharge) Act 2005 receives the Royal Assent.  The amendments included in the Deed are beneficial to PSS members.

 


ATTACHMENT

DETAILS OF THE TWENTY-SIXTH AMENDING DEED

Commencement

Clause 1 specifies that the amendments to the Rules made by the Twenty-sixth Amending Deed come into effect on the day on which the Superannuation Laws Amendment (Abolition of Surcharge) Act 2005 receives the Royal Assent.

Clause 2 puts this Deed in context with the Trust Deed and allows words or phrases in the Deed to have the same meaning as in the Trust Deed where appropriate.

Amendments to the Rules

Division 2 of Part B12 of the Rules specifies the powers of the Board relating to benefits, including the power to determine the amounts by which benefits can be reduced in respect of a surcharge debt.

Rule B12.2.9 limits the Board’s powers in respect of such benefit reductions by imposing a cap on the amount of the reduction.  The cap has regard to the maximum rate of surcharge applying from time to time.  Paragraph (d) of Rule B12.2.9 previously prevented the Board from reducing the benefits of a member who has a surcharge debt by more than 10% of the employer-financed component of any part of the benefits payable to the person that accrued after 30 June 2005.

Given that the surcharge has been abolished from 1 July 2005, paragraph (d) was no longer necessary.  Subclause 3.1 therefore deletes paragraphs B12.2.9(c) and B12.2.9(d) and substitutes a new paragraph (c).

 

Overview

The Superannuation Act 1990 was enacted to establish the Public Sector Superannuation Scheme (PSS), an occupational superannuation scheme for Australian Government employees and other designated individuals. This Act aimed to provide a structured retirement benefit system for these groups, addressing the need for secure retirement income. The Twenty-sixth Amending Deed to the Trust Deed, issued in 2005, was introduced to address the gap created by the abolition of the surcharge on superannuation contributions for higher income earners. This amendment was made to reflect the legislative changes introduced by the Superannuation Laws Amendment (Abolition of Surcharge) Act 2005. The Minister for Finance and Administration, on behalf of the Commonwealth, enacted this deed to modify the PSS rules, specifically concerning the reduction of benefits for members with a surcharge debt. The policy objective was to ensure that the PSS rules remained aligned with current legislative requirements and to provide a seamless transition following the abolition of the surcharge. The amendments were designed to benefit PSS members by updating the rules in line with the new financial landscape.

Scope and Application

The Twenty-sixth Amending Deed to the Trust Deed for the Public Sector Superannuation Scheme (PSS) is a legislative instrument issued under the Superannuation Act 1990. This Deed pertains to the rules governing the administration of the PSS, which is an occupational superannuation scheme established for Australian Government employees and certain other individuals. The PSS is designed to provide retirement benefits for eligible members. The amendment outlined in the Deed primarily affects the rules concerning the reduction of PSS benefits for members with surcharge debts, following the abolition of the surcharge from the 2005-06 financial year. The Deed does not require the consent of the PSS Board as it pertains to employer-sponsored payments, as specified under section 5 of the 1990 Act. The changes come into effect on the day the Superannuation Laws Amendment (Abolition of Surcharge) Act 2005 receives Royal Assent, and these amendments are intended to benefit PSS members by eliminating unnecessary surcharge deductions post-abolishment.

Key Provisions

The Twenty-sixth Amending Deed to the Trust Deed of the Public Sector Superannuation Scheme (PSS) (paragraphs 1 to 3) outlines the changes made to the PSS rules to reflect the abolition of the surcharge on superannuation contributions in the 2005-06 and later financial years. The surcharge was an additional tax imposed on superannuation contributions for higher-income individuals. The amendments made by this Deed primarily concern the reduction of PSS benefits where a member has a surcharge debt. These changes were necessary following the legislative decision to abolish the surcharge, and they came into effect on the day the Superannuation Laws Amendment (Abolition of Surcharge) Act 2005 received Royal Assent. The obligations and requirements imposed by the Twenty-sixth Amending Deed (paragraphs 4 to 6) pertain to the amendment of Rule B12.2.9 of the PSS rules, which governs the reduction of benefits in cases of a surcharge debt. Previously, Rule B12.2.9(d) capped the reduction of benefits at 10% of the employer-financed component of any part of the benefits accruing after 30 June 2005. With the abolition of the surcharge, this cap is no longer relevant. Therefore, the Deed removes paragraphs B12.2.9(c) and B12.2.9(d), effectively eliminating the cap on benefit reductions due to a surcharge debt. This change ensures that the PSS rules align with the legislative changes abolishing the surcharge. The Twenty-sixth Amending Deed does not require the consent of the PSS Board (paragraph 7). Section 5(1A)(b)(i) of the Superannuation Act 1990 (1990 Act) specifies that certain amendments to the Trust Deed do not need the Board's consent if they relate to a payment by an employer-sponsor that will be required or permitted to be made under the 1990 Act after the amendment. The amendments in the Deed affect the reduction of PSS benefits due to a surcharge debt, which are employer-financed and paid by the Commonwealth. Thus, these amendments fall under the category that does not require Board consent. Regarding offences, penalties, or consequences for breach (paragraph 8), the explanatory statement does not detail specific penalties or legal consequences for non-compliance with the Twenty-sixth Amending Deed. However, the Deed itself focuses on administrative changes to the PSS rules, ensuring they reflect the legislative abolition of the surcharge. Any breaches of the PSS rules or the 1990 Act would generally be subject to the penalties and consequences outlined in those respective pieces of legislation. The primary focus here is on aligning the PSS rules with the legislative changes rather than introducing new penalties or legal repercussions.

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Area of Law
Superannuation Law
Instrument
Amending Act
Concepts
Commencement Provisions
Repeal & Amendment
Consultation Requirements

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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.