THIS DEED is made on 25 March 1998 by THE COMMONWEALTH OF AUSTRALIA (in this Deed called “the Commonwealth”).
WHEREAS the Commonwealth Minister of State for Finance, for and on behalf of the Commonwealth, pursuant to section 4 of the Superannuation Act 1990, established by Deed dated 21 June 1990 (which Deed, as previously amended, is in this Deed called “the Trust Deed”) an occupational superannuation scheme (in the Deed called the “Public Sector Superannuation Scheme”) in order to provide benefits for certain of its employees and for certain other persons;
AND WHEREAS section 5 of the Superannuation Act 1990 provides that the Minister for Finance and Administration may, by signed instrument, amend the Trust Deed but that the Minister may not amend the Trust Deed unless the Board has consented to the amendment or the amendment falls within any of sub-paragraphs (b)(i), (ii) or (iii) of sub-section 5(1A);
AND WHEREAS by Deeds dated 21 June 1990, 1 July 1991, 30 June 1992, 21 December 1992, 16 June 1993, 24 January 1994, 7 March 1994, 28 June 1994, 22 June 1995, 29 January 1996 and 10 December 1996 (the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and with the consent of the Board the Ninth, Tenth and Eleventh Amending Deeds, respectively) the Minister amended the Trust Deed and the Rules for the administration of the Public Sector Superannuation Scheme set out in the Schedule to the Trust Deed;
NOW THIS DEED WITNESSES that the Trust Deed and the Rules for the administration of the Public Sector Superannuation Scheme set out in the Schedule to the Trust Deed are amended as follows and that the Board has consented to those amendments:
1. This Deed has effect from the date of gazettal [see the Acts Interpretation Act 1901, sections 46A and 48].
2. The Trust Deed is amended as follows:
2.1 Subclause 1.3 is replaced with the following subclause:
“1.3 In this Deed “Minister” means:
(a) the Commonwealth Minister of State for Finance and Administration;
(b) if 2 or more Commonwealth Ministers administer Departments which have functions in relation to the administration of matters to which the Deed relates, the Minister who administers the Department which has the function in relation to each of those matters; or
(c) a member of the Executive Council acting for the time being for and on behalf of any of those Ministers; or
(d) a person, as defined in clause 13, to whom the Minister for Finance and Administration has delegated his powers.”
2.2 Clause 13 is added as follows:
| “13 | Delegations by the Minister for Finance and Administration |
13.1 The Minister for Finance and Administration may by signed instrument delegate all or any of his or her powers under the Deed, other than this power of delegation, to:
(a) the Board; or
(b) an officer of the Department referred to in subclause 1.3(b); or
(c) the Commissioner or a member of the staff assisting the Commissioner in the performance of his or her functions.”
3. The Rules are amended as follows:
3.1 Rule 1.2.1 is amended by replacing the definition of eligible termination payment with the following definition:
“eligible termination payment has the same meaning as in the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.”
3.2 Rule 1.2.1 is amended by replacing the definition of life assurance company with the following definition:
“life assurance company has the same meaning as in the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.”
3.3 Rule 1.2.1 is amended by inserting the following definition of RSA:
“RSA has the same meaning as in the Retirement Savings Accounts Act 1997.”
3.4 Rule 1.2.1 is amended by replacing the definition of roll-over with the following definition:
“roll-over means payment by the Board as an eligible termination payment within the superannuation system as defined in the SIS Act.”
3.5 Rule 5.2.24 is amended by replacing paragraph (a) with the following paragraph:
“(a) the amount that would otherwise have been payable in respect of the regular member under a determination made under section 33E of the Superannuation Act 1990 or section 241 of the Superannuation Act 1976 on cessation of the person's membership of the approved superannuation scheme when he/she transferred to the PSS scheme; by”
3.6 Rule 5.3.24 is amended by replacing paragraph (a) with the following paragraph:
“(a) the amount that would otherwise have been payable in respect of the casual member under a determination made under section 33E of the Superannuation Act 1990 or section 241 of the Superannuation Act 1976 on cessation of the person's membership of the approved superannuation scheme when he/she transferred to the PSS scheme; by”
3.7 Rule 5.7.2 is amended by replacing subparagraph (B)(ii) with the following subparagraph:
“(ii) the member's undeducted contributions as defined in the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997; and”
3.8 Rule 5.7.3 is amended by replacing subparagraph (B)(ii) with the following subparagraph:
“(ii) the member's undeducted contributions as defined in the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997; and”
3.9 Rule 5.7.6 is amended by replacing subparagraph (B)(ii) with the following paragraph:
“(ii) the member's undeducted contributions as defined in the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997; and”
3.10 Rule 6.1.1 is amended by replacing paragraph (a)(i) with the following paragraph:
“(i) all his/her final benefit accrual if that amount is less than $200; or”
3.11 Rule 6.1.3 is amended by replacing paragraph (a) with the following paragraph:
“(a) to be paid a lump sum of his/her final benefit accrual if that amount is less than $200; or
3.12 Paragraph 8.1.1(e) is replaced with the following paragraph:
“(e) the date the Board is satisfied he/she intends to leave Australia permanently, provided that he/she:
(i) has made a written request to the Board before 1 July 1998; and
(ii) intends to leave Australia permanently before 1 July 1998; or”
3.13 Rule 8.3.3 and its heading are replaced with the following Rule and heading:
“
Access to accumulated productivity contributions - application before 1 July 1997
8.3.3 A preserved benefit member who applied to the Insurance and Superannuation Commissioner before 1 July 1997 for the early release of his/her preserved benefit on compassionate grounds or the grounds of severe financial hardship may, at any time, choose to be paid a lump sum to the value approved by the Insurance and Superannuation Commissioner, but not exceeding the accumulated productivity contributions included in his/her preserved benefit, and have the balance of the preserved benefit remain in the scheme.”
3.14 The following Rules and headings are inserted after Rule 8.3.4:
“
Access to all or part of preserved benefit - application after 30 June 1997
8.3.5 A preserved benefit member who applies to the Board after 30 June 1997 for the early release of his/her preserved benefit on the grounds of severe financial hardship may, at any time, choose to be paid a lump sum to the value approved by the Board and have the balance of the preserved benefit (if any) remain in the scheme.
8.3.6 A preserved benefit member who applies to the Insurance and Superannuation Commissioner after 30 June 1997 for the early release of his/her preserved benefit on compassionate grounds may, at any time, choose to be paid a lump sum to the value approved by the Insurance and Superannuation Commissioner and have the balance of the preserved benefit (if any) remain in the scheme.
8.3.7 A preserved benefit member who has been paid a lump sum under Rules 8.3.3, 8.3.4, 8.3.5 or 8.3.6 can be paid further amounts under Rules 8.3.5 or 8.3.6, provided that any further payments have been approved by the Insurance and Superannuation Commissioner, or the Board, as the case may be.”
3.15 Rule 12.2.4 and its heading are replaced with the following Rule and heading:
“
Payment of unclaimed benefits to Commissioner of Taxation or relevant authority
12.2.4 The Board must pay a benefit which must be taken in the form of either:
(a) a lump sum; or
(b) a preserved benefit;
to the Commissioner of Taxation or, where required by the relevant State or Territory legislation, to the relevant State or Territory authority, if:
(i) the benefit is taken to be unclaimed money within the meaning of the SIS Act; and
(ii) under the SIS Act the amount of the benefit is required to be paid to the Commissioner of Taxation, or to the relevant State or Territory authority.”
3.16 Rule 12.2.6 is replaced with the following Rule:
“12.2.6 Subject to any requirements of the Income Tax Assessment Act 1936 and/or the Income Tax Assessment Act 1997, the Board may determine the funded and unfunded composition of any payments of lump sums that do not represent the full lump sum entitlement of a former member or of a class of persons.”
3.17 The following Rules are inserted after Rule 12.2.6:
“
Application of the Superannuation Contributions Tax
12.2.7 If:
(a) benefits become payable to or in respect of a person who has ceased to be a member; and
(b) the surcharge debt account kept for the person by the Board under section 16 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (in this Part called the “Surcharge Debt Account”) is in debit when those benefits become so payable;
the amount of those benefits shall be reduced by an amount (in this Part called the “Surcharge Deduction Amount”) determined by the Board in writing that, in its opinion, it would be fair and reasonable to take into account in working out the amount of those benefits.
12.2.8 In making the determination of the Surcharge Deduction Amount, the Board must have regard to the following:
(a) the amount by which the person’s Surcharge Debt Account is in debit when those benefits become payable;
(b) the value of the employer-financed component of those benefits;
(c) the value of the benefits that, for the purpose of working out (under the Superannuation Contributions Tax (Assessment and Collection) Act 1997) the notional surchargeable contributions factors applicable to the person, were assumed to be likely to be payable to the person on his/her ceasing to be a member;
(d) whether the person is a maximum benefits member;
(e) any other matter that the Board considers relevant.
12.2.9 The Surcharge Deduction Amount may not be more than 15% of the employer-financed component of that part of the benefits payable to the person that accrued after 20 August 1996.
12.2.10 The Board must, in accordance with advice received from an actuary, determine in writing, in relation to persons to whom a pension has become payable, the conversion factor that, having regard to:
(a) the person’s age when a benefit becomes payable to the person; and
(b) other relevant factors (if any);
is applicable for the purpose of working out, in relation to the person, the yearly amount that would have to be paid to discharge a liability equal to the person’s Surcharge Deduction Amount.”
IN WITNESS WHEREOF this Deed has been executed the day and year first hereinbefore written.
SIGNED, SEALED AND DELIVERED )
)
by the Honourable JOHN JOSEPH FAHEY ) SIGNED
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Minister for Finance and Administration )
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for and on behalf of )
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THE COMMONWEALTH OF )
)
AUSTRALIA, in the presence of: )
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Louise Seeber )
(name) )
)
32 Kambalda Crescent, FISHER ACT 2611 )
(address) )
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Ministerial Adviser )
(description) )
)