A Bill for an Act to amend the law relating to superannuation, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Public Sector Superannuation Legislation Amendment Act 2022.
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 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendments
Part 1—Main amendments
Parliamentary Superannuation Act 2004
1 Section 3
Repeal the following definitions:
(a) definition of administering authority;
(b) definition of basic contributions fund.
2 Section 3
Insert:
chosen fund, for a person, has the same meaning as in Part 3A of the Superannuation Guarantee (Administration) Act 1992.
default fund, for a person, has the meaning given by subsection 17(1).
3 Section 3 (definition of RSA)
Repeal the definition.
4 Section 3
Insert:
stapled fund, for a person, has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
5 Subsection 8(1)
Repeal the subsection, substitute:
(1) If this Division applies to the member in respect of a month, the Commonwealth must make a contribution, in respect of the member, to:
(a) the chosen fund for the member at the time of the contribution; or
(b) if there is no chosen fund for the member at the time of the contribution but there is a stapled fund for the member at that time—that stapled fund; or
(c) if there is neither a chosen fund nor a stapled fund for the member at the time of the contribution—the default fund for the member at that time.
Note: See also Part 3A (choice of fund requirements) of the Superannuation Guarantee (Administration) Act 1992.
6 Subsection 8(6)
Omit “the person’s basic contributions fund”, substitute “a fund in accordance with subsection (1)”.
7 Subsection 8(6)
Omit “the basic contributions fund”, substitute “the fund”.
8 Division 2 of Part 2
Repeal the Division.
9 Section 17
Repeal the section, substitute:
17 Determination of default fund
Default fund for person to whom Division 1 applies
(1) The default fund for a person to whom Division 1 of this Part applies is the fund or scheme determined in accordance with a method specified for that purpose in an instrument under subsection (3).
(2) The Minister must ensure that, at all times, there is one (and only one) default fund for each person to whom Division 1 of this Part applies.
Method for determining default fund
(3) The Minister may, by legislative instrument, specify a method for determining that a fund or scheme is the default fund for a person to whom Division 1 of this Part applies.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(4) A method specified under subsection (3) must:
(a) require that, to be determined to be the default fund, a fund or scheme must be a complying superannuation fund (other than a self managed superannuation fund) at a particular time; and
(b) include:
(i) an assessment of funds and schemes according to relative fee levels, costs and investment returns; or
(ii) a comparison of one or more publicly available rankings of funds and schemes that take account of relative fee levels, costs and investment returns.
(5) Despite subsection 14(2) of the Legislation Act 2003, an instrument under subsection (3) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
(6) Despite anything in regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument under subsection (3) of this section.
10 At the end of Division 3 of Part 2
Add:
17A Default fund sole eligible choice fund for certain purposes
For the purposes of the application of subsection 32C(2) of the Superannuation Guarantee (Administration) Act 1992 to a person to whom Division 1 of this Part applies, the default fund for the person is the sole eligible choice fund for the Commonwealth.
Superannuation Act 2005
11 At the end of section 3
Add:
• The Minister may specify a method for determining that another fund is the alternative mandated fund for a class of persons. In circumstances relating to the operation of section 60F of the Superannuation Industry (Supervision) Act 1993 (consequences of 2 consecutive fail assessments), an employer may be required to pay contributions, for the benefit of an employee included in that class, to the alternative mandated fund for that class.
12 Subsection 4(1)
Insert:
alternative mandated fund, for a class of persons, has the meaning given by subsection 19A(1).
complying superannuation fund means a complying superannuation fund within the meaning of section 45 of the Superannuation Industry (Supervision) Act 1993.
default member, of the alternative mandated fund for a class of persons, has the meaning given by section 19C.
self managed superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
13 Subsection 14(4) (note 1)
Repeal the note, substitute:
Note 1: See section 16 (PSSAP is generally the sole eligible choice fund in relation to APS employees etc. for certain purposes) but also section 32ZAB of the Superannuation Guarantee (Administration) Act 1992 (effect of blocking contributions to PSSAP etc.—eligible choice funds).
14 Section 16 (heading)
After “PSSAP is”, insert “generally”.
15 Subsection 16(1)
Omit “If:”, substitute “If, at a particular time:”.
16 After paragraph 16(1)(c)
Insert:
and (d) the person is not, at that time, a default member of the alternative mandated fund for a class of persons;
17 Subsection 16(1)
After “for the purposes of the application”, insert “, at that time,”.
18 Subsection 16(1) (note)
Omit “Note”, substitute “Note 1”.
19 At the end of subsection 16(1)
Add:
Note 2: See also section 32ZAB of the Superannuation Guarantee (Administration) Act 1992 (effect of blocking contributions to PSSAP etc.—eligible choice funds).
20 At the end of subsection 19(1)
Add:
; or (c) a default member of the alternative mandated fund for a class of persons.
21 After Part 4
Insert:
Part 4A—Alternative mandated funds
19A Determination of alternative mandated funds
Alternative mandated fund for class of persons
(1) The alternative mandated fund for a class of persons is the fund determined in accordance with a method specified for that purpose in an instrument under paragraph (2)(a).
Method for determining, and requirements for administration of, alternative mandated fund
(2) The Minister may, by legislative instrument:
(a) specify a method for determining that a fund is the alternative mandated fund for a specified class of persons; and
(b) determine requirements for the administration of the alternative mandated fund for a class of persons in relation to a default member of that fund in respect of particular employment or the holding of a particular office.
(3) A method specified under paragraph (2)(a) must:
(a) require that, to be determined to be the alternative mandated fund for a class of persons, a fund must be a complying superannuation fund (other than a self managed superannuation fund) at a particular time; and
(b) include:
(i) an assessment of funds according to relative fee levels, costs and investment returns; or
(ii) a comparison of one or more publicly available rankings of funds that take account of relative fee levels, costs and investment returns.
(4) Without limiting the requirements that may be determined for the purposes of paragraph (2)(b), those requirements may provide for either or both of the following:
(a) the rate at which a contribution is payable in respect of a default member of the alternative mandated fund for a class of persons in respect of particular employment or the holding of a particular office;
(b) the superannuation salary, or a method for determining the superannuation salary, of a default member of the alternative mandated fund for a class of persons in respect of particular employment or the holding of a particular office.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(5) If an instrument under paragraph (2)(b) provides for the rate at which a contribution is payable in respect of a default member of the alternative mandated fund for a class of persons in respect of particular employment or the holding of a particular office, that rate must not be less than the rate at which a contribution is payable to CSC, in accordance with the Rules, in respect of an ordinary employer‑sponsored member of PSSAP (within the meaning of subsection 18(2), (3) or (5)) in respect of that employment or the holding of that office.
(6) Despite subsection 14(2) of the Legislation Act 2003, an instrument under subsection (2) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
(7) Despite anything in regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument under subsection (2) of this section.
19B Contributions to alternative mandated funds by designated employers
If, in an instrument in force under paragraph 19A(2)(a), the Minister has specified a method for determining that a fund is the alternative mandated fund for a class of persons, the designated employer of a default member of that fund in respect of particular employment or the holding of a particular office must pay to the trustee of that fund, in accordance with an instrument (the administration instrument) in force under paragraph 19A(2)(b), any contributions that, under the administration instrument, are payable by the employer in respect of the member.
Note: See subsection 19(2) for the designated employer of a default member.
19C Default members of alternative mandated funds
A person is, at a particular time, a default member of the alternative mandated fund for a class of persons in respect of particular employment or the holding of a particular office if at that time:
(a) the person is included in that class; and
(b) the person is eligible to become a member of PSSAP because of that particular employment or holding that particular office; and
(c) assuming that the person’s employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992) were to make a contribution to the alternative mandated fund for the benefit of the person, the employer would rely on subsection 32C(2) of that Act to satisfy the choice of fund requirements in relation to the contribution; and
(d) the person’s salary or wages (within the meaning of the Superannuation Guarantee (Administration) Act 1992) would be taken into account for the purposes of making a calculation under section 19 of that Act.
Note 1: Subsection 32C(2) of the Superannuation Guarantee (Administration) Act 1992 can only be relied on if there is no chosen fund for the person and the most recent notification from the Commissioner is that there is no stapled fund for the person.
Note 2: The alternative mandated fund for a class of persons may be the sole eligible choice fund for the employer of a person included in that class (see section 19D).
19D Alternative mandated fund may be sole eligible choice fund in relation to default members of alternative mandated funds for certain purposes
(1) If, in an instrument in force under paragraph 19A(2)(a), the Minister has specified a method for determining that a fund is the alternative mandated fund for a class of persons, then, for the purposes of the application, at a particular time, of subsection 32C(2) of the Superannuation Guarantee (Administration) Act 1992 to a person included in that class, the alternative mandated fund is the sole eligible choice fund for the person’s employer at that time if:
(a) the person’s employment is:
(i) employment as an APS employee; or
(ii) specified in a written determination made by the Minister under this subparagraph; and
(b) the person is eligible to become a member of PSSAP because of that employment; and
(c) either or both of the following apply:
(i) the employer cannot make contributions to PSSAP on behalf of the person because of section 60F of the Superannuation Industry (Supervision) Act 1993 (consequences of 2 consecutive fail assessments);
(ii) at an earlier time, the employer relied on subsection 32C(2) of the Superannuation Guarantee (Administration) Act 1992 to satisfy the choice of fund requirements in relation to a contribution to the alternative mandated fund for the benefit of the person; and
(d) the alternative mandated fund is covered by a paragraph of section 32D of the Superannuation Guarantee (Administration) Act 1992.
(2) A determination under subparagraph (1)(a)(ii) is a legislative instrument.
(3) Despite anything in regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a determination under subparagraph (1)(a)(ii) of this section.
(4) In this section:
employment has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
22 Subsection 20(2)
After “this Act”, insert “(other than Part 4A)”.
23 Paragraph 32(1)(a)
After “section 10 or 16”, insert “or Part 4A”.
24 Section 33
Before “The”, insert “(1)”.
25 At the end of section 33
Add:
(2) However, subsection (1) does not apply in relation to the Minister’s power to make an instrument under subsection 19A(2).
26 Subsection 34(1)
After “this Act”, insert “(other than Part 4A)”.
27 At the end of section 45
Add:
(4) However, subsection (2) does not apply in relation to regulations prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to Part 4A.
Part 2—Consequential amendments
Governance of Australian Government Superannuation Schemes Act 2011
28 Section 4 (paragraph (i) of the definition of Act administered by CSC)
After “Superannuation Act 2005”, insert “(other than Part 4A of that Act)”.
Parliamentary Business Resources Act 2017
29 Section 5 (definition of chosen basic contributions fund)
Repeal the definition.
30 Section 5
Insert:
chosen fund, for a person, has the same meaning as in Part 3A of the Superannuation Guarantee (Administration) Act 1992.
31 Section 5 (definition of default basic contributions fund)
Repeal the definition.
32 Section 5
Insert:
default fund, for a person, has the same meaning as in the Parliamentary Superannuation Act 2004.
stapled fund, for a person, has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
33 Paragraph 19(4)(a)
Omit “default basic contributions fund”, substitute “person’s default fund or stapled fund”.
34 Paragraph 19(4)(b)
Omit “chosen basic contributions fund of the person”, substitute “person’s chosen fund”.
35 Paragraph 22(5)(a)
Omit “default basic contributions fund”, substitute “person’s default fund or stapled fund”.
36 Paragraph 22(5)(b)
Omit “chosen basic contributions fund of the person”, substitute “person’s chosen fund”.
Part 3—Other amendments
Federal Circuit and Family Court of Australia Act 2021
37 Subsection 7(1) (definition of Commonwealth superannuation contribution)
Omit “the Judge’s choice of”.
Part 4—Transitional provisions
38 Transitional—chosen fund
(1) This item applies if a choice notice (within the meaning of the Parliamentary Superannuation Act 2004 as in force immediately before the commencement of this Schedule) is in force in respect of a person immediately before the commencement of this Schedule.
(2) The choice notice has effect, on and after the commencement of this Schedule, as if it were a notice given by the person under paragraph 32F(1)(a) of the Superannuation Guarantee (Administration) Act 1992 to the person’s employer.
39 Transitional—default fund
(1) This item applies if, immediately before the commencement of this Schedule, a fund or scheme was the default fund for the purposes of the Parliamentary Superannuation Act 2004 as in force at that time.
(2) The Parliamentary Superannuation Act 2004 as amended by this Schedule has effect, after the commencement of this Schedule, as if the fund or scheme were the default fund for each person to whom Division 1 of Part 2 of that Act applies.
(3) If the Minister makes an instrument under subsection 17(3) of the Parliamentary Superannuation Act 2004, as substituted by this Schedule, specifying a method for determining that a fund or scheme is the default fund for a person to whom Division 1 of Part 2 of that Act applies, subitem (2) ceases to apply in relation to that person on and from the day specified in the instrument.