EXPLANATORY STATEMENT
ISSUED BY AUTHORITY OF THE MINISTER FOR FINANCE AND ADMINISTRATION
SUBJECT: TWENTY-THIRD AMENDING DEED TO THE DEED TO ESTABLISH AN OCCUPATIONAL SUPERANNUATION SCHEME FOR COMMONWEALTH EMPLOYEES AND CERTAIN OTHER PERSONS PURSUANT TO SECTION 5 OF THE SUPERANNUATION ACT 1990
Authority
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 a Deed dated 21 June 1990 under section 4 of the Superannuation Act 1990 (the 1990 Act). In this statement the Deed is called “the Trust Deed”. The occupational superannuation scheme is known as the Public Sector Superannuation Scheme (PSS).
2. 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 PSS Board’s consent to the amendment where necessary.
3. The Minister has amended the Trust Deed and the Rules for the Administration of the Superannuation Scheme set out in the Schedule to the Trust Deed by the following signed instruments:
Trust Deed | Date | | Trust Deed | Date |
First Amending Deed | 21 June 1990 | | Twelfth Amending Deed | 25 Mar 1998 |
Second Amending Deed | 1 July 1991 | | Thirteenth Amending Deed | 5 Dec 1999 |
Third Amending Deed | 30 June 1992 | | Fourteenth Amending Deed | 20 Aug 2001 |
Fourth Amending Deed | 21 Dec 1992 | | Fifteenth Amending Deed | 25 Sep 2001 |
Fifth Amending Deed | 16 June 1993 | | Sixteenth Amending Deed | 26 Jun 2002 |
Sixth Amending Deed | 24 Jan 1994 | | Seventeenth Amending Deed | 3 April 2003 |
Seventh Amending Deed | 7 May 1994 | | Eighteenth Amending Deed | 27 June 2003 |
Eighth Amending Deed | 28 June 1994 | | Nineteenth Amending Deed | 26 Nov 2003 |
Ninth Amending Deed | 22 June 1995 | | Twentieth Amending Deed | 23 Mar 2004 |
Tenth Amending Deed | 29 Jan 1996 | | Twenty-first Amending Deed | 9 May 2004 |
Eleventh Amending Deed | 10 Dec 1996 | | Twenty-second Amending Deed | 5 July 2004 |
4. On 9 August 2004 the Minister for Finance and Administration amended the Trust Deed and 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-third Amending Deed in this statement.
5. 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 PSS Board has consented to those amendments.
6. The PSS Board has consented to the amendments included in the Twenty-third Amending Deed.
BACKGROUND
7. The Military Rehabilitation and Compensation Scheme (MRCS) is a new military specific compensation scheme designed to meet the special circumstances of service in the Australian Defence Force (ADF). The MRCS was given effect to by the Military Rehabilitation and Compensation Act 2004 (MRCA) and the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (CTPA).
8. Until the MRCS commenced on 1 July 2004 Australian Government employees as well as members and former members of the ADF were covered by arrangements under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). From 1 July 2004, under the new arrangements, members and former members of the ADF will be covered by the MRCS, instead of the arrangements under the SRCA, for service on or after the commencement day of the MRCS.
9. The CTPA makes consequential and transitional amendments required following the commencement of the MRCA, including amendments to the Superannuation Act 1976 in respect of the Commonwealth Superannuation Scheme (CSS).
10. The PSS Rules broadly interact with the SRCA in respect of contributions from PSS members and their employers during compensation leave, and invalidity retirement issues. The PSS Rules therefore contain a number of references to the SRCA and also to Comcare, the administering authority of the SRCA, in respect of those issues.
PROVISIONS OF THe Twenty-third Amending Deed
11. Clause 1 specifies that the amendments to the Rules made by the Twenty-third Amending Deed come into effect on the date of gazettal.
12. 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 PSS Rules
13. The amendments to the PSS Rules included in clause 3 of the Twenty-third Amending Deed are of a consequential nature and are necessary to recognise the new MRCS arrangements for members and former members of the ADF who are also members of the PSS.
14. The Twenty-third Amending Deed makes amendments to the PSS Rules that add references to the MRCA where there are existing references to the SRCA, and also where appropriate, add references to the new administering authority, the Military Rehabilitation and Compensation Commission (the Commission), where there are references to Comcare.
15. The Twenty-third Amending Deed amends the definition of compensation leave in Rule 1.2.1, and inserts a new definition of Military Rehabilitation and Compensation Commission in that Rule.
16. The Twenty-third Amending Deed also amends Rules 4.2.1 (contributions on leave without pay), Rules 10.7.4 and 10.7.5 (entitlement to invalidity benefits) and Rule 10.10.3 (entitlement to pre-assessment payments) to include references to the Commission or the MRCA as appropriate.
Overview
The Twenty-third Amending Deed to the Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons, enacted in 2004, was introduced to address the legislative gap created by the introduction of the Military Rehabilitation and Compensation Scheme (MRCS) under the Military Rehabilitation and Compensation Act 2004. The Minister for Finance and Administration, acting on behalf of the Commonwealth, made these amendments under Section 5 of the Superannuation Act 1990 to ensure that the Public Sector Superannuation Scheme (PSS) Rules align with the new MRCS arrangements. The amendments primarily involve updating references from the Safety, Rehabilitation and Compensation Act 1988 to the MRCA, and from Comcare to the Military Rehabilitation and Compensation Commission. The policy objective is to ensure that superannuation arrangements for Commonwealth employees, particularly members and former members of the Australian Defence Force, are consistent with the new compensation scheme.
The amendments included in the Twenty-third Amending Deed are consequential, necessitated by the shift from the Safety, Rehabilitation and Compensation Act 1988 to the MRCA. These changes ensure that the PSS Rules correctly reference the new legislation and the administering authority, thereby maintaining the integrity and functionality of the PSS in light of the new compensation arrangements. The Twenty-third Amending Deed also adjusts definitions and specific rules concerning compensation leave and invalidity benefits to reflect the changes brought about by the MRCS.
Scope and Application
The Twenty-third Amending Deed to the Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons, issued under the authority of the Minister for Finance and Administration, primarily applies to the Public Sector Superannuation Scheme (PSS), which provides benefits to certain Commonwealth employees and other individuals. The amendments made by this Deed are in response to the commencement of the Military Rehabilitation and Compensation Scheme (MRCS), which now governs compensation arrangements for members and former members of the Australian Defence Force. The Twenty-third Amending Deed is intended to ensure that the PSS Rules are aligned with the new MRCS arrangements, replacing references to the Safety, Rehabilitation and Compensation Act 1988 (SRCA) with references to the Military Rehabilitation and Compensation Act 2004 (MRCA) and Comcare with the Military Rehabilitation and Compensation Commission. These amendments are effective from the date of gazettal and are subject to the consent of the PSS Board, as required by Section 5 of the Superannuation Act 1990. The changes include updates to definitions and references within the PSS Rules to reflect the new legislative framework, ensuring consistency and compliance with the new compensation arrangements.
Key Provisions
The main operative sections of the Twenty-third Amending Deed to the Trust Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons (the "Twenty-third Amending Deed") are Clauses 1, 2, and 3. Clause 1 specifies that the amendments to the Public Sector Superannuation Scheme (PSS) Rules made by the Twenty-third Amending Deed come into effect on the date of gazettal. Clause 2 provides that words or phrases in the Twenty-third Amending Deed have the same meaning as in the Trust Deed where appropriate. Clause 3 includes amendments to the PSS Rules, which are necessary to recognise the new Military Rehabilitation and Compensation Scheme (MRCS) arrangements for members and former members of the Australian Defence Force (ADF) who are also members of the PSS. These amendments include adding references to the Military Rehabilitation and Compensation Act 2004 (MRCA) where there are existing references to the Safety, Rehabilitation and Compensation Act 1988 (SRCA), and where appropriate, adding references to the Military Rehabilitation and Compensation Commission (the "Commission"), the administering authority of the MRCS, where there are references to Comcare.
The Twenty-third Amending Deed imposes obligations and requirements on the parties and entities it governs, including the PSS Board, the Minister for Finance and Administration, and members of the PSS who are also members or former members of the ADF. The PSS Board must consent to the amendments included in the Twenty-third Amending Deed, and the Minister must ensure that the amendments are implemented in accordance with the Deed. Members of the PSS who are also members or former members of the ADF must comply with the amended PSS Rules, which recognise the new MRCS arrangements for their compensation and invalidity retirement benefits.
Breach of the obligations and requirements imposed by the Twenty-third Amending Deed may result in civil or criminal consequences, depending on the nature and severity of the breach. The maximum penalties for breach of the Superannuation Act 1990 (the "1990 Act") and the PSS Rules are not specified in the Explanatory Statement. However, breach of other Commonwealth legislation relating to superannuation and compensation may result in fines of up to $22,200 for individuals and $111,000 for corporations, as well as imprisonment for up to five years. It is important for parties and entities governed by the Twenty-third Amending Deed to comply with its obligations and requirements to avoid any potential civil or criminal consequences.