Superannuation Legislation Amendment (Trustee Board and Other Measures) Act 2006 No. 51, 2006 An Act to amend the law relating to superannuation, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Main amendments Part 1—Main amendments Superannuation Act 1976 Superannuation Act 1990 Superannuation Act 2005 Part 2—Amendment of the Superannuation Legislation Amendment (Superannuation Safety and Other Measures) Act 2006 Superannuation Legislation Amendment (Superannuation Safety and Other Measures) Act 2006 Part 3—Transitional provisions Division 1—Preliminary Division 2—Assets, liabilities and legal proceedings Division 3—The Australian Reward Investment Alliance Division 4—Reference to, and things done by or in relation to, the CSS Board Division 5—Miscellaneous Schedule 2—Technical amendments Superannuation Act 1976 Superannuation Legislation Amendment (Trustee Board and Other Measures) Act 2006 No. 51, 2006 An Act to amend the law relating to superannuation, and for related purposes [Assented to 9 June 2006] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Superannuation Legislation Amendment (Trustee Board and Other Measures) Act 2006. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 9 June 2006 2. Schedule 1, Part 1 1 July 2006. 1 July 2006 3. Schedule 1, Part 2 Immediately before the commencement of Schedule 1 to the Superannuation Legislation Amendment (Superannuation Safety and Other Measures) Act 2006. 23 October 2006 However, the provision(s) do not commence at all if that Schedule commences before 1 July 2006. 4. Schedule 1, Part 3 1 July 2006. 1 July 2006 5. Schedule 2 Immediately after the commencement of Parts 1 and 3 of Schedule 1 to the Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act (No. 1) 2003. 1 July 2003 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Main amendments Part 1—Main amendments Superannuation Act 1976 1 Subsection 3(1) (definition of Board) Repeal the definition, substitute: Board has the same meaning as in the Superannuation Act 1990. 2 Subsection 3(1) Insert: CSS means the superannuation scheme established by this Act. 3 Subsection 3(1) (definition of PSS Board) Repeal the definition. 4 Subsection 3(1) Insert: PSS Fund has the same meaning as in the Superannuation Act 1990. 5 Subsection 3(1) Insert: Trustee has the same meaning as trustee has in the Superannuation Act 1990. 6 Paragraph 4B(b) Omit "the scheme established under this Act", substitute "the CSS". 7 Paragraph 17(2)(a) After "Board", insert "in the performance of its functions in relation to the CSS". 8 Part IIA (heading) Repeal the heading, substitute: Part IIA—The Board 9 Division 1 of Part IIA (heading) Repeal the heading. 10 Sections 27A and 27B Repeal the sections. 11 Subsection 27C(1) After "Board", insert "under this Act". 12 Subsection 27C(3) After "strategies", insert "in relation to the Fund". 13 At the end of section 27D Add "under this Act". 14 Division 2 of Part IIA (heading) Repeal the heading. 15 Sections 27E to 27P Repeal the sections. 16 Paragraph 27Q(1)(a) Omit "member of the Board", substitute "Trustee". 17 Subsection 27Q(2) Omit "or decisions made by its delegates", substitute ", or decisions made by its delegates, under this Act or the regulations". 18 Paragraph 27Q(3)(a) Omit "member of the Board" (wherever occurring), substitute "Trustee". 19 Paragraph 27R(1)(a) Omit "member of the Board", substitute "Trustee". Note: The heading to section 27R is altered by omitting "members of the Board" and substituting "Trustees". 20 Subsection 27R(3) After "demand", insert "in relation to this Act or the regulations". 21 Sections 27S and 27T Repeal the sections. 22 Section 40 Omit "(1)". 23 Subsection 42(4A) After "by the Board" (first occurring), insert "in accordance with subsection (3)". 24 Subsection 42(5A) After "the Board", insert "(in so far as it performs functions, or exercises powers, in relation to the Fund)". 25 Subsection 44(3) Omit "member of the Board", substitute "Trustee". 26 Subsection 53(3) After "by it", insert "under this section". 27 Paragraph 54K(a) Repeal the paragraph. 28 Subsection 125(1) (definition of superannuation scheme) Omit "the superannuation scheme constituted by this Act", substitute "the CSS". 29 Subsection 126A(1) Omit "the superannuation scheme constituted by this Act", substitute "the CSS". 30 Subsection 153AA(1) (definition of decision) After "of the Board", insert "under this Act or the regulations". 31 Paragraph 161(1)(a) After "functions", insert "in relation to the CSS and the Fund". 32 Paragraph 165(b) Omit "member of the Board", substitute "Trustee". 33 Subsection 168(17A) After "powers", insert "under this Act or the regulations". 34 Section 248 Omit "PSS Board", substitute "PSS Fund". Note: The heading to section 248 is altered by omitting "Board" and substituting "Fund". 35 Paragraphs 248(a) and (b) Omit "the Fund" (wherever occurring), substitute "the CSS Fund". 36 Section 249 Repeal the section, substitute: 249 Advances in respect of assets to be transferred The Board may make to the PSS Fund advances in respect of assets that are to be transferred to the PSS Fund under section 248. Superannuation Act 1990 37 Section 3 (definition of Board) Omit "PSS Board", substitute "board, called the Australian Reward Investment Alliance,". 38 Section 3 Insert: CSS has the same meaning as in the Superannuation Act 1976. 39 Section 3 (definition of CSS Board) Repeal the definition. 40 Section 3 Insert: CSS Fund has the same meaning as in the Superannuation Act 1976. 41 Section 3 Insert: PSSAP has the same meaning as in the Superannuation Act 2005. 42 Section 3 Insert: PSSAP Fund has the same meaning as in the Superannuation Act 2005. 43 Section 3 (definition of PSS Fund) Omit "PSS Board", substitute "Board". 44 After subsection 5(1) Insert: (1AA) To avoid doubt, the Minister may amend the Trust Deed to include provisions relating to the functions and powers of the Board in relation to: (a) the Public Sector Superannuation Scheme and the PSS Fund; and (b) the PSSAP and the PSSAP Fund; and (c) the CSS and the CSS Fund. 45 Subsection 6A(4) Omit "CSS Board", substitute "CSS Fund". Note: The heading to section 6A is altered by omitting "scheme under the Superannuation Act 1976" and substituting "CSS". 46 Part 6 (heading) Repeal the heading, substitute: Part 6—The Board 47 Section 20 Omit "PSS Board", substitute "Australian Reward Investment Alliance". 48 At the end of section 20 Add: Note: The appointment provisions for the trustees are provided in the Trust Deed (see section 23). 49 Subsection 22(2) (note) After "section", insert "27C of the Superannuation Act 1976 (functions and powers in relation to the CSS and the CSS Fund) and section". 50 Paragraph 23(1)(b) Omit "4", substitute "6". 51 Subsection 27A(3) Omit "member of the Board", substitute "trustee". 52 Paragraph 28A(1)(a) Omit "member of the Board", substitute "trustee". 53 Paragraph 28A(2)(a) Omit "member of the Board" (wherever occurring), substitute "trustee". 54 Before section 33AA Insert: 33H Establishment of new corporation for purposes of holding units (1) If: (a) the Board would otherwise hold the only unit, or all the units, in a unit trust; and (b) the Board is also the trustee of the trust; then: (c) the Board is taken, for the purposes of holding a unit in the unit trust, to be a corporation by the name of "The Holding Board"; and (d) the Board must hold a unit in the unit trust in that corporate name. Note: This subsection gives the Board a new and separate legal personality for the purposes of holding a unit in the unit trust. This has the effect of preventing any merger of legal and equitable interests relating to the unit trust for the purposes of trust law. (2) If the unit trust referred to in subsection (1) is a pooled superannuation trust (within the meaning of the Superannuation Industry (Supervision) Act 1993), then, for the purposes of that Act, the Income Tax Assessment 1936 and the Income Tax Assessment Act 1997, the corporation named as "The Holding Board" is taken to be a regulated superannuation fund (within the meaning of those Acts). 55 Subsection 34(1) After "Trust Deed", insert "in relation to the Public Sector Superannuation Scheme". 56 Paragraph 43(1)(a) After "Trust Deed", insert "in relation to the Public Sector Superannuation Scheme or the PSS Fund". 57 Paragraph 43(1)(d) Repeal the paragraph, substitute: (d) a delegate of the Board in the performance of his or her functions under this Act or the regulations, or under the Trust Deed in relation to the Public Sector Superannuation Scheme or the PSS Fund; or 58 Paragraph 43(1)(e) After "Trust Deed" (second occurring), insert "in relation to the Public Sector Superannuation Scheme or the PSS Fund". 59 Subsection 43(3) Omit "in relation to this Act, the regulations or the Trust Deed", substitute "that relates to this Act or the regulations, or to the Trust Deed in relation to the Public Sector Superannuation Scheme or the PSS Fund,". Superannuation Act 2005 60 Section 3 Omit "PSS Board", substitute "Board". 61 Subsection 20(2) (note) After "section", insert "27C of the Superannuation Act 1976 (functions and powers in relation to the CSS and the CSS Fund) and section". 62 Subsection 37(1) After "decisions", insert "under this Act, the regulations or the Trust Deed". 63 Subsection 41(2) Repeal the subsection, substitute: (2) If a tribunal, authority or person is empowered: (a) to review a decision of the Board under this Act, the regulations or the Trust Deed; and (b) to vary, or make a decision in substitution for, the Board's decision under this Act, the regulations or the Trust Deed; the tribunal, authority or person is not bound by any presumption made by the Board under subsection (1). Part 2—Amendment of the Superannuation Legislation Amendment (Superannuation Safety and Other Measures) Act 2006 Superannuation Legislation Amendment (Superannuation Safety and Other Measures) Act 2006 64 Items 1 to 14 of Schedule 1 Repeal the items. 65 Item 25 of Schedule 1 Repeal the item. Part 3—Transitional provisions Division 1—Preliminary 66 Definitions (1) In this Part: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. amend includes repeal and remake. asset means: (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and (b) any right, power, privilege or immunity, whether actual, contingent or prospective. assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned. Australian Reward Investment Alliance means the board established under section 20 of the Superannuation Act 1990 immediately after the commencement time. commencement time means the time when this Part commences. CSS Board means the CSS Board established under section 27A of the Superannuation Act 1976 immediately before the commencement time. financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined. instrument: (a) includes: (i) a contract, deed, undertaking or agreement; and (ii) a notice, authority, order or instruction; and (iii) an instrument made under an Act or regulations; and (iv) regulations; but (b) does not include an Act. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective. land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated. liability means any liability, duty or obligation, whether actual, contingent or prospective. (2) Subject to subitem (1), an expression used in this Part that is also used in the Superannuation Act 1976, the Superannuation Act 1990, or the Superannuation Act 2005, as amended by this Schedule, has the same meaning in this Part as it has in that Act. Division 2—Assets, liabilities and legal proceedings 67 Vesting of assets of CSS Board (1) This item applies to the assets of the CSS Board (whether the assets are in Australia or elsewhere) immediately before the commencement time. (2) At the commencement time, the assets to which this item applies cease to be assets of the CSS Board and become assets of the Australian Reward Investment Alliance without any conveyance, transfer or assignment. The Australian Reward Investment Alliance becomes the successor in law in relation to these assets. 68 Vesting of liabilities of CSS Board (1) This item applies to the liabilities of the CSS Board (whether the liabilities arose in Australia or elsewhere) immediately before the commencement time. (2) At the commencement time, the liabilities to which this item applies cease to be liabilities of the CSS Board and become liabilities of the Australian Reward Investment Alliance without any conveyance, transfer or assignment. The Australian Reward Investment Alliance becomes the successor in law in relation to these liabilities. 69 Certificates relating to vesting of land (1) This item applies if: (a) any land vests in the Australian Reward Investment Alliance under this Part; and (b) there is lodged with a land registration official a certificate that: (i) is signed by the Chairperson; and (ii) identifies the land, whether by reference to a map or otherwise; and (iii) states that the land has become vested in the Australian Reward Investment Alliance under this Part. Note: Certificates under paragraph (1)(b) are presumed to be authentic: see item 85. (2) The land registration official may: (a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and (b) deal with, and give effect to, the certificate. 70 Certificates relating to vesting of assets other than land (1) This item applies if: (a) any asset other than land vests in the Australian Reward Investment Alliance under this Part; and (b) there is lodged with an assets official a certificate that: (i) is signed by the Chairperson; and (ii) identifies the asset; and (iii) states that the asset has become vested in the Australian Reward Investment Alliance under this Part. Note: Certificates under paragraph (1)(b) are presumed to be authentic: see item 85. (2) The assets official may: (a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and (b) make such entries in the register as are necessary having regard to the effect of this Part. 71 Substitution of Australian Reward Investment Alliance as a party to pending proceedings If any proceedings to which the CSS Board was a party were pending in any court or tribunal immediately before the commencement time, the Australian Reward Investment Alliance is substituted for the CSS Board, from the commencement time, as a party to the proceedings. 72 Transfer of custody of CSS Board records (1) This item applies to any records or documents that, immediately before the commencement time, were in the custody of the CSS Board. (2) The records and documents are to be transferred into the custody of the Australian Reward Investment Alliance at or after the commencement time. Division 3—The Australian Reward Investment Alliance 73 Continuity of the Australian Reward Investment Alliance The amendments made by Part 1 of this Schedule do not affect: (a) the continuity, after that Part commences, of the existence of the body that is renamed by those amendments as the Australian Reward Investment Alliance; or (b) the continuing validity of the appointment of the trustees. 74 Membership of the Australian Reward Investment Alliance Employer representative (1) The person who is the member of the CSS Board referred to in subsection 27F(2) of the Superannuation Act 1976 immediately before the commencement time: (a) is taken to have been duly appointed to the Australian Reward Investment Alliance by the Minister under paragraph 4.1(a) of the Trust Deed (within the meaning of the Superannuation Act 1990) for the balance of the person's term of appointment; and (b) is taken to have been so appointed on the same terms and conditions as applied to the person immediately before the commencement time. Employee representative (2) The person who is the member of the CSS Board referred to in subsection 27F(3) of the Superannuation Act 1976 immediately before the commencement time: (a) is taken to have been duly appointed to the Australian Reward Investment Alliance by the Minister under paragraph 4.1(b) of the Trust Deed (within the meaning of the Superannuation Act 1990) for the balance of the person's term of appointment; and (b) is taken to have been so appointed on the same terms and conditions as applied to the person immediately before the commencement time. Variation of terms and conditions (3) Paragraphs (1)(b) and (2)(b) do not prevent a person's terms and conditions from being varied after the commencement time: (a) in accordance with those terms and conditions; or (b) by or under a law, award, determination or agreement. (4) In this item: vary, in relation to terms and conditions, includes: (a) omitting any of those terms and conditions; or (b) adding to those terms and conditions; or (c) substituting new terms or conditions for any of those terms and conditions. Division 4—Reference to, and things done by or in relation to, the CSS Board 75 References in Acts and instruments to the CSS Board If: (a) an Act or instrument is in force immediately before the commencement time; and (b) the Act or instrument contains a reference to the CSS Board; the Act or instrument has effect from the commencement time as if the reference to the CSS Board were a reference to the Australian Reward Investment Alliance. Note: During the first year after this item commences, instruments can retrospectively amend references to the CSS Board: see item 83. 76 Operation of laws (1) If, before the commencement time, a thing was done by, or in relation to, the CSS Board, then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the thing is taken to have been done by, or in relation to, the Australian Reward Investment Alliance. (2) For the purposes of subitem (1), a thing done before the commencement time under a provision that is amended by this Act has effect from that time as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. Meaning of doing (3) To avoid doubt, for the purposes of this item, doing a thing includes making an instrument. 77 Continued effect of delegations made under the old law (1) A delegation made under section 27Q of the Superannuation Act 1976 that is in force immediately before the commencement time continues in effect after that time as if it had been made under section 27Q of that Act, as amended by this Schedule. (2) The amendments made to: (a) section 165 of the Superannuation Act 1976; or (b) section 28A of the Superannuation Act 1990; do not affect the continuity of a delegation or sub‑delegation made under that section. 78 Financial statements and other reporting requirements Reporting requirements (1) If: (a) immediately before the commencement time, a law required the CSS Board to provide a report (whether financial statements or otherwise) for a period; and (b) the period ends after the commencement time; the Australian Reward Investment Alliance must provide the report, as required, for so much of the period as occurs before the commencement time. (2) If: (a) under subitem (1), the Australian Reward Investment Alliance is required to provide a report for a part of a period; and (b) the Australian Reward Investment Alliance is also required to provide a similar report for the remainder of the period; the Australian Reward Investment Alliance may meet the requirements in a single report for the period. Outstanding reporting requirements (3) If: (a) a law required the CSS Board to provide a report (whether financial statements or otherwise) for a period that ended before the commencement time; and (b) the report has not been provided by the commencement time; the Australian Reward Investment Alliance must provide the report as required. Division 5—Miscellaneous 79 CGT roll‑over—transfer of CSS Fund assets to pooled superannuation trust Object (1) The object of this item is to provide for a CGT roll‑over so as to facilitate the exercise by the Australian Reward Investment Alliance of its powers under section 27C of the Superannuation Act 1976 in relation to the CSS Fund to operate a pooled superannuation trust, known as the PSS Investments Trust, that is used for investing the assets of the CSS Fund. Roll‑over (2) There is a roll‑over if: (a) one or more CGT events happen because the Australian Reward Investment Alliance ceases to hold all of the CGT assets of the CSS Fund; and (b) because of the cessation, CGT assets (the identical assets) that, together, are identical to all the CGT assets of the CSS Fund just before the happening of the CGT events start to be held by the trustee (the transferee trustee) of the PSS Investments Trust (whether or not all the identical assets were assets of the CSS Fund just before the CGT events); and (c) the cessation is part of a scheme under which CGT assets of the CSS Fund are replaced with units in the PSS Investments Trust. Note: The transferee trustee may be the Australian Reward Investment Alliance: see subsection 960‑100(3) of the Income Tax Assessment Act 1997. (3) A capital gain or capital loss the Australian Reward Investment Alliance makes from each of the CGT events is disregarded. (4) For the transferee trustee, the first element of the cost base of each of the identical assets the transferee trustee holds is the cost base of the corresponding asset for the Australian Reward Investment Alliance at the time of the relevant CGT event. (5) For the transferee trustee, the first element of the reduced cost base of each of the identical assets the transferee trustee holds is the reduced cost base of the corresponding asset for the Australian Reward Investment Alliance at the time of the relevant CGT event. (6) For the purposes of the Income Tax Assessment Act 1997, a roll‑over covered by this item is taken to be a same‑asset roll‑over. Interpretation (7) An expression used in this item and in the Income Tax Assessment Act 1997 has the same meaning in this item as it has in that Act. 80 References in Acts and instruments to PSS Board If: (a) an Act or an instrument is in force immediately before the commencement time; and (b) the Act or instrument contains a reference to the PSS Board; the Act or instrument has effect from the commencement time as if the reference to the PSS Board were a reference to the Australian Reward Investment Alliance. Note: During the first year after this item commences, instruments can retrospectively amend references to the PSS Board: see item 83. 81 Amending instruments may be retrospective (1) If: (a) an instrument is made within the period of 12 months beginning on the day on which this item commences; and (b) a provision of the instrument amends a reference to the PSS Board or the CSS Board in any other instrument; the provision may be expressed to take effect from the day that this item commences, or a later day in the period referred to in paragraph (a), that occurs before the instrument is made. (2) This item has effect despite subsection 12(2) of the Legislative Instruments Act 2003. 82 Constitutional safety net—acquisition of property (1) If the operation of this Part would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. 83 Certificates taken to be authentic A document that appears to be a certificate made or issued under a particular provision of this Part: (a) is taken to be such a certificate; and (b) is taken to have been properly given; unless the contrary is established. 84 Regulations (1) The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Part to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part. (2) In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act. Note: During the first year after this item commences, regulations can retrospectively amend references to the CSS Board or the PSS Board: see item 83. Schedule 2—Technical amendments Superannuation Act 1976 1 Subparagraph 4B(c)(iv) Repeal the subparagraph, substitute: (iv) a person to whom paragraph (ec) of the definition of eligible employee applies; 2 Paragraph 55(1)(a) Omit "57AA(2)(a)", substitute "57AA(4)(a)". 3 Paragraph 55(1)(b) Omit "paragraph 57AA(2)(b) or (1A)", substitute "(1A) or paragraph 57AA(4)(b)". 4 Paragraph 55(1)(c) Omit "57AA(2)(c)", substitute "57AA(4)(c)". 5 Paragraph 55(2)(a) Omit "57AA(2)(a)", substitute "57AA(4)(a)". 6 Paragraph 55(2)(b) Omit "paragraph 57AA(2)(b) or (1A)", substitute "(1A) or paragraph 57AA(4)(b)". 7 Paragraph 55(2)(c) Omit "57AA(2)(c)", substitute "57AA(4)(c)". 8 Subsection 57(1A) (the subsection 57(1A) inserted by item 111 of Schedule 1 to the Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act (No. 1) 2003) Renumber the subsection as (1AA). 9 Paragraph 59(1)(a) Omit "61AB(2)(a)", substitute "61AB(4)(a)". 10 Paragraph 59(1)(b) Omit "61AB(2)(b)", substitute "61AB(4)(b)". 11 Paragraph 59(1)(c) Omit "61AB(2)(c)", substitute "61AB(4)(c)". [Minister's second reading speech made in— Senate on 29 March 2006 House of Representatives on 29 May 2006] (26/06)