Thirty-Eighth Amendment of the Public Sector Superannuation Scheme Trust Deed

Link to law: https://www.comlaw.gov.au/Details/F2013L01568

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THIRTY-EIGHTH AMENDMENT
of the
PUBLIC SECTOR SUPERANNUATION SCHEME TRUST DEED
 
THIS DEED is made on         26th July 2013             by THE MINISTER FOR FINANCE AND DEREGULATION.
WHEREAS section 4 of the Superannuation Act 1990 (the Act) provides for the Minister to establish an occupational superannuation scheme to be administered by the Board established under section 20 of the Act before its repeal by the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011;
AND WHEREAS the body corporate, that was previously constituted as the Board under repealed section 20 of the Act, is continued in existence under the name Commonwealth Superannuation Corporation (CSC) by section 5 of the Governance of Australian Government Superannuation Schemes Act 2011;
AND WHEREAS the Public Sector Superannuation Scheme (the PSS) was established by a Trust Deed dated 21 June 1990 (the Trust Deed)[1];
AND WHEREAS the Schedule to the Trust Deed contains Rules for the administration of the PSS (the Rules);
AND WHEREAS the Trust Deed and the Rules have been amended from time to time by various Deeds;
AND WHEREAS section 5 of the Act provides for the Minister, by instrument in writing, to amend the Trust Deed, and under subsection 5(1A) requires the consent of CSC to amendments in certain circumstances;
AND WHEREAS CSC consent was not required for the amendments in this Deed.
NOW THIS DEED WITNESSES as follows:
1.         Commencement of amendments
The amendments in this Deed take effect on the day after it is registered on the Federal Register of Legislative Instruments.
2.         Interpretation
Unless a contrary intention appears, a word or phrase in this Deed has the same meaning that it has in the Trust Deed and the Rules.
3.         Application of amendments – maximum benefits determinations
The amendments made by clause 4 of this Deed apply in relation to determinations made under Rule 5.6.5 and Rule 5.7.7 that apply for the 2014-15 financial year and later financial years.
4.         Amendments – maximum benefits determinations
4.         The Rules are amended as follows:
4.1       Rule 5.6.5 is amended by deleting paragraph (a) and replacing it with the following new paragraph (a):
            “(a)      first, applying an indexation factor, calculated under Rule 5.6.5A or 5.6.5B, whichever is applicable, to the average salary amount;”
4.2       The following new Rules are inserted immediately after Rule 5.6.5:
            “5.6.5A           For the purposes of Rules 5.6.5 and 5.7.7, the indexation factor for a determination that applies for the 2008-9 financial year and each later financial year ending on or before 30 June 2014 must reflect the immediately preceding March-to-March movement in Average Weekly Ordinary Time Earnings in Australia.
            5.6.5B             For the purposes of Rules 5.6.5 and 5.7.7, the indexation factor for a determination that applies for the 2014-15 financial year and each later financial year is the greater of:
(a)    1; or
(b)   the number calculated by the formula below:
            where:
New AWOTE             is the index number of the full-time adult average weekly ordinary time earnings last published by the Australian Statistician before 1 May of the financial year immediately preceding the financial year that the determination applies to;
Old AWOTE              is the index number of the full-time adult average weekly ordinary time earnings published by the Australian Statistician and preceding New AWOTE by one year.
provided:
(A)             the factor is to be rounded up or down to the nearest one thousandth; and
(B)             any index number that is published by the Australian Statistician in substitution for an earlier published Old AWOTE or New AWOTE index number is to be disregarded for the purposes of this Rule if it is published on or after 1 May of the financial year immediately preceding the financial year that the determination applies to; and
(C)             if the Australian Statistician changes the reference base for the index of full-time adult average weekly ordinary time earnings, regard shall only be had to index numbers published in terms of the new reference base.”
4.3       Rule 5.7.7 is amended by deleting paragraph (a) and replacing it with the following new paragraph (a):
            “(a)      first, applying an indexation factor, calculated under Rule 5.6.5A or 5.6.5B, whichever is applicable, to the average salary amount;”
5          Application – release of benefits to meet a Division 293 Tax Liability
The amendments made by clauses 6 and 7 of this Deed apply in relation to release authorities received by CSC on or after the commencement of the Deed.
6.         Amendment – definition of release authority
6.         The Rules are amended as follows:
6.1       Rule 1.2.1 is amended by replacing the definition of “release authority” with the following definition:
“release authority      means:
for the purposes of Part 17:
·         a release authority issued by the Commissioner of Taxation under item 3 of the table in subsection 135‑10(1) of Schedule 1 to the Taxation Administration Act 1953; and
for the purposes of these Rules, except for Part 17:
·         a release authority received from a member or preserved benefit member or the Commissioner of Taxation under section 292-410 of the Income Tax Assessment Act 1997; or
·         a transitional release authority received from a member or preserved benefit member under section 292-80B of the Income Tax (Transitional Provisions) Act 1997; or
·         a release authority issued by the Commissioner of Taxation under item 1 or 2 of the table in subsection 135‑10(1) of Schedule 1 to the Taxation Administration Act 1953.”
7          New Part – payment of a deferred tax liability incurred under Division 293 of the Taxation Administration Act 1953
7.1       The following new Part, Division, Headings and Rules are inserted immediately after Part 16:

PART 17 – RELEASE OF BENEFITS: PAYMENT OF A DEFERRED TAX LIABILITY
Release of Benefits to Meet a Deferred Tax Liability

Division 1
Release of benefits under a release authority
17.1.1                   CSC may pay a lump sum (the release authority lump sum) at a time in compliance with a release authority issued to a person and given to CSC in accordance with Subdivision 135-B in that Schedule if, at or before that time, the person gives CSC written notice of the person’s election under Rule 17.1.2 (which deals with the reduction of benefits to reflect the release authority lump sum).



Note: The purpose of the release authority is to allow a lump sum to be paid to the Commissioner to meet a debt the person has under Subdivision 133‑C in Schedule 1 to the Taxation Administration Act 1953.  In this Part 17 the reference to a release authority means such  an authority issued under item 3 of the table in subsection 135‑10(1) in Schedule 1 to the Taxation Administration Act 1953 (see Rule 1.2.1) 
 
   
 
 
Election specifying which benefit is to be reduced
17.1.2              If a person gives CSC a release authority in accordance with Division 135 in Schedule 1 to the Taxation Administration Act 1953 and that person is entitled (or is about to become entitled) to:
(a)    a lump sum benefit; and/or
(b)   a pension benefit;
                        under this Deed, that person may make an election specifying which of those benefits is to be reduced to reflect the release authority lump sum.

Note: A reference to a ‘lump sum benefit’ also includes a reference to any lump sum benefit under Part 11.
  17.1.3              Where a person is entitled, or about to become entitled, to 2 or more benefits, the person cannot specify in an election under Rule 17.1.2 that 2 or more benefits are to be reduced to reflect a release authority lump sum unless the person elects to reduce all, or all but one, of the specified benefits to zero.
 
 
Limit on amount that may be released
17.1.4              In addition to any requirements in Division 135 in Schedule 1 to the Taxation Administration Act 1953, the amount of a release authority lump sum must not have the effect that a benefit specified in an election under Rule 17.1.2 is reduced below zero.
17.1.5              For the purpose of Rule 17.1.4, the effect of a release authority lump sum on the amount of a benefit specified in an election under Rule 17.1.2 is to be worked out after taking account of:
(a)    the person’s surcharge deduction amount (if any); and
(b)   any reduction under Rule 12.4.5 (which deals with reductions for early release lump sums); and
(c)    any reductions under Division 4 or 5 of Part 16 of this Deed (which deals with family law splitting).
Apart from this rule, the amount of a release authority lump sum is not to be reduced under any provision of this Deed.
Amount that may be released
17.1.6              If a release authority lump sum is paid in relation to a release authority issued to a person, the benefits to which the person is entitled under this Deed must be reduced to reflect the release authority lump sum, in accordance with the person’s election under Rule 17.1.2.
17.1.7              If the election specifies that a pension is to be reduced (but not to zero), the annual rate of the pension is to be reduced so that it equals the amount calculated using the following formula:
                       
where:
Conversion Factor means the factor that is applicable to the person under the determination made by CSC under Rule 17.1.8.
Pre‑Reduction Rate means the annual rate of the pension that would, apart from this section (but having regard to any other provisions of this Deed that affect that rate), be payable to the person on the pension reduction day mentioned in Rule 17.1.9.
Reduced release authority lump sum means the amount of the release authority lump sum, reduced by the sum of each reduction made under a previous application of this section to a benefit to which the person is entitled.
17.1.8              CSC may, by legislative instrument, determine the conversion factors, or the method for working out the conversion factors, for the purposes of Rule 17.1.7.
            17.1.9              A reduction under Rule 17.1.7 is to take effect from the day (the pension reduction day) that is:
(a)    if the pension has not started to be paid—the first pension pay day; or
(b)   if the pension has started to be paid—the first pension pay day that occurs 14 days after the release authority was given to CSC.
 
 
IN WITNESS WHEREOF this Deed has been executed the day and year first hereinbefore written.
 
SIGNED, SEALED AND DELIVERED                 )
                                                                                    )
by                                                                                )
                                                                                    )
Senator the Hon Penelope Ying Yen Wong  ) Penelope Wong
                                                                                    )
Minister for Finance and Deregulation                      )
                                                                                    )
in the presence of:                                                       )
                                                                                    )
                                                                        )          
                        (name)                                                 ) MARCUS GANLEY
                                                                                    )
                                                                                    )
(address)                                             ) MG 70 PARLIAMENT HOUSE
                                                                                    ) CAPITAL HILL, ACT, 2600
                                                                                    )
                        (description)                                        ) SENIOR ADVISER.
                                                                                    )
 
Note to the Deed:  TABLE LISTING TRUST DEED AND AMENDING DEEDS
Before 1 January 2005, section 45 of the Superannuation Act 1990 provided, in part, that instruments under subsection 5(1) of that Act amending the Trust Deed were disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. The effect of these provisions was that amending instruments were required to be notified in the Gazette and take effect from the date of gazettal (unless the instrument provided otherwise).
From 1 January 2005, paragraph 6(d) of the Legislative Instruments Act 2003 declared disallowable instruments (such as the instruments amending the Trust Deed) to be legislative instruments. Legislative instruments are registered on the Federal Register of Legislative Instruments instead of being notified in the Gazette.
Date of making
Number
Gazette details / Registration details

21 June 1990
Trust Deed
GN 25, 27 June 1990, p1728

21 June 1990
First
GN 25, 27 June 1990, p1728

1 July 1991
Second
S 180, 1 July 1991

30 June 1992
Third
S 181, 1 July 1991

21 December 1992
Fourth
GN 1, 13 January 1993, p110

16 June 1993
Fifth
S 181, 18 June 1993

24 January 1994
Sixth
GN 4, 2 February 1993, p366

7 March 1994
Seventh
S 89, 15 March 1994

28 June 1993
Eighth
S 246, 29 June 1994

22 June 1995
Ninth
GN 25, 28 June 1995, p2285

29 January 1996
Tenth
S 41, 1 February 1996

10 December 1996
Eleventh
GN 50, 18 December 1996

25 March 1998
Twelfth
GN 13, 1 April 1998, p901

5 December 1999
Thirteenth
S 590, 6 December 1999

20 August 2001
Fourteenth
S 342, 22 August 2001

25 September 2001
Fifteenth
GN 39, 3 October 2001, p2972

26 June 2002
Sixteenth
S 225, 27 June 2002

3 April 2003
Seventeenth
GN 17, 30 April 2004, p 1398

Date of making
Number
Gazette details / Registration details

27 June 2003
Eighteenth
S 245, 27 June 2003

26 November 2003
Nineteenth
S 446, 1 December 2003

23 March 2004
Twentieth
S 89, 24 March 2004

9 May 2004
Twenty-first
S 146, 11 May 2004

5 July 2004
Twenty-second
S 277, 9 July 2004

9 August 2004
Twenty-third
S 330, 12 August 2004

8 June 2005
Twenty-fourth
F2005L01613, 27 June 2005

24 June 2005
Twenty-fifth
F2005L01860, 29 June 2005

22 August 2005
Twenty-sixth
F2005L02372, 25 August 2005

20 June 2006
Twenty-seventh
F2006L01969, 26 June 2006

21 June 2007
Twenty-eighth
F2007L01943, 28 June 2007

28 August 2007
Twenty-ninth
F2007L03519, 31 August 2007

19 December 2007
Thirtieth
F2007L04993, 24 December 2007

29 July 2008
Thirty-first
F2008L02863, 1 August 2008

16 December 2008
Thirty-second
F2008L04706, 18 December 2008

22 June 2009
Thirty-third
F2009L02530, 25 June 2009

17 May 2011
Thirty-fourth
F2011L00855, 25 May 2011

29 June 2011
Thirty-fifth
F2011L01393, 30 June 2011

5 July 2011
Thirty-sixth
F2011L01488, 13 July 2011

31 May 2013
Thirty-seventh
F2013L00966, 13 Jun 2013

 

[1] Section 3 of the Act defines “Trust Deed” to include that deed as subsequently amended. A note listing particulars of the Trust Deed and the amending deeds is set out at the end of this Deed.