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SUPERANNUATION LEGISLATION AMENDMENT BILL 2018
SERIAL NO. 65
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
TREASURER
EXPLANATORY STATEMENT
GENERAL OUTLINE
The Superannuation Legislation Amendment Bill 2018 (the Bill) amends the Legislative Assembly Members' Superannuation Fund Act (LAMS Act), the Superannuation Act, the Superannuation Regulations and the Northern Territory Government and Public Authorities Superannuation Scheme (NTGPASS) Rules as follows.
Amendments to the Legislative Assembly Members' Superannuation Fund Act
1. Transfers the assets and investments of the Legislative Assembly Members’ Superannuation Fund (LAMS Fund) to the Central Holding Authority (CHA) established under the Financial Management Act, then discontinues the LAMS Fund.
2. Provides that future contributions of contributing members of the Legislative Assembly Members’ Superannuation Scheme are to be made to the CHA rather than the LAMS Fund.
3. Provides that pensions and benefits paid under the LAMS Act will be paid from the CHA rather than the LAMS Fund.
4. Replaces an existing offence provision relating to confidential information with a new provision that uses updated drafting language.
5. Transfers the functions and powers held by the Superannuation Trustee Board (STB) under the LAMS Act to the Commissioner of Superannuation.
Amendments to the Superannuation Act
6. Provides a mechanism to transfer the accumulation accounts of NTGPASS members, which together comprise the Northern Territory Government and Public Authorities Employees’ Superannuation (NTGPAES) Fund, to a new trustee to manage and invest, using a successor fund transfer.
7. Provides that after the transfer of the NTGPAES Fund to a new trustee, NTGPASS members must continue to make contributions under the NTGPASS Rules into an accumulation account in a complying superannuation fund (which may be with the new trustee for the NTGPAES Fund).
8. After the transfer of the NTGPAES Fund to a new trustee, transfers the STB’s remaining functions and powers in relation to NTGPASS to the Commissioner of Superannuation.
9. Terminates the STB after the NTGPAES Fund has been transferred to a new trustee and the LAMS Fund has been transferred to the CHA.
10. Expands the Commissioner of Superannuation’s reporting obligations so that the Commissioner is required to report on all of the superannuation schemes administered by that position, not only NTGPASS.
11. Replaces an existing offence provision relating to confidential information with a new provision that uses updated drafting language.
Amendments to the Superannuation Regulations
12. Makes consequential amendments following the termination of the STB by repealing references to the STB’s seal being affixed on documents.
Amendments to the Northern Territory Government and Public Authorities’ Superannuation Scheme Rules
13. Makes consequential amendments following the transfer of the NTGPAES Fund to a new trustee to manage and invest, including removing references to NTGPASS benefits including a member’s account in the NTGPAES Fund.
NOTES ON CLAUSES
Part 1 Preliminary matters
Clause 1. Short title
This is a formal clause which provides for the citation of the Bill. The Bill, when passed, will be cited as the Superannuation Legislation Amendment Act 2018.
Clause 2 Commencement
This clause sets out how the Bill will be commenced.
Clause 2(1) provides that Parts 1 and 2 commence on the day after the Administrator’s assent to the Bill is declared. The “Stage 1” amendments are contained in Part 2.
Clause 2(2) provides that the remainder of the Bill will commence on a day fixed by the Administrator by way of a notice published in the Gazette. At the practical level, the remainder of the Bill will commence in three stages as follows:
• Stage 2 – Part 3 and the Schedule.
• Stage 3 – Part 4.
• Stage 4 – Parts 5 and 6.
Part 2 Stage 1 amendments
Clause 3 Act amended
This clause provides that Part 2 amends the Superannuation Act.
Clause 4 Part 3, Division 6 heading amended
This clause amends the heading to Part 3, Division 6 of the Superannuation Act by omitting the word ‘adherents’’. The word is being omitted because amendments made to section 45DE mean that the Division will also apply to members of NTGPASS and not only to former members of that scheme (known as ‘adherents’).
Clause 5 Section 45DE replaced
This clause replaces the existing section 45DE of the Superannuation Act with a new section.
45DE Transfer to successor fund
New section 45DE of the Superannuation Act replaces an earlier version of that section which only permitted a successor fund transfer of the accounts of adherents. The new section permits a successor fund transfer of the accounts of both adherents and members of NTGPASS. The operation of section 45DE is otherwise unchanged.
Clause 6 Section 49L replaced
This clause repeals section 49L of the Superannuation Act (Confidentiality of information) and inserts an updated section (Offence to disclose confidential information) in its place that uses more modern drafting language.
The existing penalties are retained, where a maximum fine of 200 penalty units or a term of imprisonment of 2 years is provided for the offence.
Part 3 Stage 2 amendments
Division 1 Amendments to the Legislative Assembly Members’ Superannuation Fund Act
Clause 7 Act amended
This clause provides that Division 1 amends the LAMS Act.
Clause 8 Section 1 amended (Short title)
This clause amends the title of the LAMS Act to be the Legislative Assembly Members’ Pensions Act. This is because that Act will no longer deal with the LAMS Fund after Part 3 commences.
Clause 9 Section 3 amended (Definitions)
Clause 9(1) amends section 3 of the LAMS Act by omitting the definition of ‘Trustee Board’.
Clause 9(2) amends section 3 of the LAMS Act by inserting new definitions of ‘asset’, ‘Commissioner’, ‘liability’, ‘right’, ‘transfer date’ and ‘Trustee Board’.
• ‘asset’. This is defined to mean property of any kind, whether tangible or intangible, real or personal, including any right, interest or claim of any kind, whether liquidated or unliquidated, actual, contingent or prospective.
• ‘Commissioner’. This is defined by reference to the definition of that term in section 3(1) of the Superannuation Act.
• ‘liability’. This is defined to mean any liability, duty or obligation, whether liquidated or unliquidated, actual, contingent or prospective.
• ‘right’. This is defined to mean any right, power, privilege or immunity, whether actual, contingent or prospective. This term is used in the newly inserted definition of ‘asset’.
• ‘transfer date’. This is defined to mean the date of commencement of section 7 of the Superannuation Legislation Amendment Act 2018.
• ‘Trustee Board’. This is defined to mean the Superannuation Trustee Board as constituted on the transfer date under section 8A of the Superannuation Act.
Clause 9(3) amends the definition of ‘accumulation account’ in section 3 of the LAMS Act to reflect that records of member accounts will be kept in the accounts of the scheme established under the LAMS Act, rather than in the accounts of the LAMS Fund.
Clause 9(4) amends the definition of ‘Fund’ in section 3 of the LAMS Act by clarifying that it refers to the fund established under the LAMS Act on 23 September 1979.
Clause 10 Part II replaced
This clause repeals the existing Part II and inserts a new Part II.
Part II Administration
Division 1 Discontinuance of the Legislative Assembly Members' Superannuation Fund
4 Transfer of Fund assets and liabilities
New section 4 of the LAMS Act provides that the assets and liabilities of the LAMS Fund are transferred to the CHA on the transfer date. The section also provides that the LAMS Fund is discontinued once all of the assets and liabilities have been transferred.
4A Transfer of functions
New section 4A of the LAMS Act provides that on the transfer date:
(1) The Trustee Board and Commissioner must take all practicable steps to transfer the Trustee Board’s functions and records and administration of the Legislative Assembly Members’ Superannuation Scheme to the Commissioner, giving to each registrar of such records all the documents and information necessary to record and register those transfers.
(2) The Commissioner is substituted for the Trustee Board in any proceedings relating to the LAMS Fund to which the Trustee Board is a party.
(3) The Commissioner is substituted for the Trustee Board in any agreement or document relating to the LAMS Fund.
(4) Any proceedings relating to the LAMS Fund that could have been commenced by or against the Trustee Board may only be commenced by or against the Commissioner.
(5) Any remedy that would have been available to or against the Trustee Board relating to the LAMS Fund is only available to or against the Commissioner.
5 Record of accounts
New section 5 of the LAMS Act requires the Commissioner to maintain certain records in respect of each member and former member who retains an interest in the Legislative Assembly Members’ Superannuation Scheme. This is similar to the obligations to maintain records that are currently owed by the STB.
Of note, is that the Commissioner is required to maintain records of the investment return on the accumulation accounts of members and former members at the end of the financial year before the assets of the LAMS Fund are transferred to the CHA as well as the rate of investment return determined under new section 6(1).
6 Return on accumulation accounts
New section 6 of the LAMS Act creates an obligation on the Commissioner to determine the rate of investment return on accumulation accounts in the LAMS Fund at the time that they are transferred to the CHA. This return is required to be credited or debited to those accumulation accounts at the time that the assets of the LAMS Fund are transferred to the CHA.
7 Surcharge debt accounts
New section 7 of the LAMS Act replaces existing section 4C, which dealt with superannuation surcharge debt accounts. This section places obligations on the Commissioner to establish and maintain surcharge debt accounts for the purposes of section 16 of the Surcharge Collection Act. This section also provides mechanisms for crediting and debiting surcharge debt accounts.
8 Advance payments to reduce superannuation contributions surcharge
New section 8 of the LAMS Act replaces existing section 4D, which dealt with members who make advance payments in order to reduce their superannuation contributions surcharge liability. The new section is a restatement of the existing section and reflects that members will need to lodge forms with the Commissioner, rather than the STB.
9 Repayment of superannuation contribution surcharge
New section 9 of the LAMS Act replaces an existing section 4E, which provided a mechanism for paying the balance of a member’s surcharge debt account. The new section is a restatement of the existing section and reflects that the commutation of part of a member’s pension, or deduction from a payment to be made under the Act, will need to be made by the Commissioner rather than by the STB.
9A Commutation to pay deferred superannuation contributions surcharge
New section 9A of the LAMS Act replaces an existing section 4F, which allowed a former member or other person to request that a pension or allowance payable under the Act is commuted in order to pay a superannuation contributions surcharge amount referred to in a notice received from the Commissioner of Taxation under section 15 of the Surcharge Collection Act. The new section is a restatement of the existing section and reflects that the request for commutation will need to be made to the Commissioner rather than to the STB.
10 Actuarial review
New section 10 of the LAMS Act provides that the Commissioner must have an actuarial review of the LAMS Scheme carried out as at 30 June 2019. The section also requires that subsequent actuarial reviews are to be carried out at intervals of three years from the previous one or at other dates as directed by the Minister. The section is consistent with the Territory’s obligations under a Heads of Government Agreement with the Commonwealth to ensure that actuarial reviews of its defined benefit superannuation schemes are carried out every three years.
11 Payments and appropriation
New section 11 of the LAMS Act provides that benefits payable under the LAMS Act must be paid from the CHA. The section also appropriates public moneys for the purpose of paying benefits under the LAMS Act to the extent necessary. Previously, benefits payable under the LAMS Act were paid from the LAMS Fund.
Division 2 Commissioner
12 Delegation
New section 12 of the LAMS Act provides that the Commissioner may delegate any of the Commissioner’s powers and functions under that Act to a person.
Clause 11 Sections 28 and 28A replaced
This clause repeals and replaces sections 28 (Trustee Board may charge fees for additional services) and 28A of the LAMS Act (Confidentiality of information).
New section 28 (Fees for additional services) is a restatement of the existing section and reflects that fees for services will be charged by the Commissioner rather than the STB.
New section 28A (Offence to disclose confidential information) uses more modern drafting language than the repealed section 28A. The existing penalties are retained, where a maximum fine of 200 penalty units or a term of imprisonment of 2 years is provided for the offence.
Clause 12 Part VIII inserted
This clause inserts new Part VIII into the LAMS Act. That Part provides transitional provisions arising from the amendments to the LAMS Act by the Bill.
Part VIII Transitional matters for Superannuation Legislation Amendment Act 2018
38 Exemption from taxes and charges
New section 38(1) of the LAMS Act provides that so far as the legislative power of the Legislative Assembly permits, no tax or charge is chargeable in relation to any act or thing that occurs by operation of Part 3 of the Superannuation Legislation Amendment Act 2018, to any act or thing done under or to give effect to that Part, or to any act or thing done for a purpose connected with, or arising out of, giving effect to that Part.
New section 38(3) of the LAMS Act provides that where a tax or charge under a law of a jurisdiction other than the Territory is payable in relation to an act or thing mentioned in subsection (1), it is to be paid from the CHA, which is appropriated accordingly.
39 Continuation of ongoing matters
New section 39 of the LAMS Act provides that anything done or omitted to be done by, to or in relation to the Trustee Board before the transfer date that has effect after that date is taken to have been done or omitted to be done by, to, or in relation to the Commissioner.
40 Acquisition on just terms
New section 40 of the LAMS Act is necessary because section 50(1) of the Northern Territory (Self Government) Act 1978 (Cth) limits the authority of the Northern Territory Legislative Assembly to only making laws that do not result in the acquisition of property otherwise than on just terms. That section provides that in the event that the operation of Part 3 of the Superannuation Legislation Amendment Act 2018 would result in an acquisition of property from a person that is not on just terms:
• then the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms and
• a court of competent jurisdiction is able to decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.
Clause 13 Act further amended
This clause provides for further amendments to be made to the LAMS Act as set out in the Schedule to the Bill.
Division 2 Amendments to the Superannuation Act relating to LAMS Scheme
Clause 14 Act amended
This clause provides that Division 2 amends the Superannuation Act.
Clause 15 Section 3 amended (Interpretation)
This clause amends section 3(1) of the Superannuation Act by amending the definition of ‘LAMS Scheme’.
• ‘LAMS Scheme’. This is defined to mean the scheme established under the Legislative Assembly Members’ Pensions Act. This is an amended definition of an existing term, which reflects the change to that Act’s name.
Clause 16 Section 7 replaced
This clause replaces the existing section 7 of the Superannuation Act as a consequence of amendments to the LAMS Act which provided the Commissioner with a separate power of delegation under section 12 of that Act. New section 7 of the Superannuation Act provides that the Commissioner may delegate any of the Commissioner’s powers and functions under that Act to a person.
Clause 17 Section 8B amended (Functions and powers of Trustee Board)
This clause omits section 8B(1)(c) of the Superannuation Act as a consequence of amendments to the LAMS Act, which transfer responsibility for administration of that Act from the STB to the Commissioner. The amendment reflects that the STB will no longer have any functions or powers in relation to the administration of the LAMS Act.
Clause 18 Section 8TB amended (Apportionment of Trustee Board’s general costs)
This clause amends section 8TB(2) of the Superannuation Act by omitting paragraph (b) from the definition of the term ‘Board managed scheme’. This omission is a consequence of amendments to the LAMS Act, which transfer responsibility for administration of that Act from the STB to the Commissioner. The amendment reflects that the STB will no longer have any functions or powers in relation to the administration of the LAMS Act.
Clause 19 Section 49B amended (Meaning of reviewable decision)
This clause amends section 49B of the Superannuation Act as a consequence of amendments to the LAMS Act, which transfer responsibility for administration of that Act from the STB to the Commissioner. The amendment reflects that persons with a right to seek a review of decisions made under the LAMS Act will be seeking a review of decisions made by the Commissioner, rather than by the STB.
Part 4 Stage 3 amendments
Division 1 Amendments to the Superannuation Act relating to transfer of Fund to successor fund
Clause 20 Act Amended
This clause provides that Division 1 amends the Superannuation Act.
Clause 21 Section 3 amended (Interpretation)
Clause 21(1) amends section 3(1) of the Superannuation Act by omitting the definitions of ‘approved deposit’ and ‘Fund’. These definitions are no longer required once the NTGPAES Fund has been transferred to the successor fund under section 45DE of the Superannuation Act.
Clause 21(2) amends section 3(1) of the Superannuation Act by inserting a new definition for the term ‘complying superannuation fund’.
• ‘complying superannuation fund’. This term is defined to take the same meaning of that term as in section 995-1(1) of the Income Tax Assessment Act 1997 (Cth).
Clauses 21(3) and (4) amend section 3(1) of the Superannuation Act by amending the definitions of the definitions of ‘accumulation account’ and ‘adherent’.
• ‘accumulation account’. This is defined to mean an account kept in the name of a member or adherent in the successor fund mentioned in section 45DE of the Act or a complying superannuation fund standing to the credit of the member or adherent. The current definition of the term has been amended to reflect the successor fund transfer of the NTGPAES Fund and that members and adherents will hold accounts in the successor fund and/or another complying superannuation fund.
• ‘adherent’. This is defined to mean, in relation to NTGPASS, a person who is not an eligible employee (and hence not a member of that Scheme) but in whose name an account exists in NTGPASS. The current definition refers to an adherent as having an account in the NTGPAES Fund.
Clause 22 Section 6 replaced
This clause replaces the existing section 6 of the Superannuation Act with a new section.
6 Functions and powers of Commissioner
New section 6 of the Superannuation Act sets out the functions and powers of the Commissioner. It updates the existing section 6 and removes references to the Commissioner following directions of the STB, managing and investing the NTGPAES Fund, and to borrowing money for the NTGPAES Fund. New section 6 also makes it clear that the Commissioner’s functions and powers extend to the administration of all ‘NTG Schemes’ as that term is defined in section 3(1) of the Superannuation Act.
Clause 23 Section 8B amended (Functions and powers of Trustee Board)
This clause omits sections 8B(1)(a) and (b), 8B(3) and (4) of the Superannuation Act, as those provisions contain redundant references to the STB holding the NTGPAES Fund as trustee and to directing the Commissioner in managing and investing the NTGPAES Fund.
Clause 24 Section 8D amended (Review of Trustee Board membership structure)
This clause amends the definition of ‘scheme’ in section 8D(5) by omitting the reference to the NTGPAES Fund.
Clause 25 Section 8S amended (Disclosure of personal interest)
This clause omits from section 8S of the Superannuation Act a redundant reference to STB members needing to disclose a material personal interest in a matter that relates to the NTGPAES Fund. The reference is unnecessary because the NTGPAES Fund is discontinued in clause 33 of the Bill.
Clause 26 Section 8TB amended (Apportionment of Trustee Board’s general costs)
This clause amends section 8TB(2) of the Superannuation Act by amending the definition of ‘Board managed scheme’ in order to remove references to the NTGPAES Fund. The reference to the NTGPAES Fund becomes redundant because the NTGPAES Fund is discontinued in clause 33 of the Bill.
Clause 27 Section 26 amended (Membership)
This clause replaces section 26(2) of the Superannuation Act with an updated provision that provides eligible employees are required to pay to their accumulation account the contributions required by the NTGPASS Rules. The current provision requires eligible employees to pay their contributions under those Rules to the Commissioner. This is no longer appropriate because the Commissioner will no longer have any involvement in managing the accumulation accounts of eligible employees.
Clause 28 Section 28A amended (Surcharge debt accounts)
This clause amends section 28A of the Superannuation Act by clarifying that surcharge debt accounts managed by the Commissioner will no longer be recorded within the accounts of the NTGPAES Fund.
Clause 29 Section 28B amended (Advance payments to reduce superannuation contributions surcharge)
This clause makes a consequential amendment to section 28B of the Superannuation Act by providing that payments made by eligible employees or former eligible employees to reduce their superannuation contributions surcharge liability must be paid to the CHA, rather than to the NTGPAES Fund, after the NTGPAES Fund has been transferred to the successor fund.
Clause 30 Sections 28 and 29 replaced
This clause repeals sections 28 and 29 of the Superannuation Act.
Section 28 (Records of accumulation accounts) required the Commissioner to maintain certain records in the accumulation account of a member or adherent. Section 28 and the information required to be recorded under that section are redundant once the NTGPAES Fund has been transferred to a successor fund.
This clause also replaces section 29 (Payment of benefits) of the Superannuation Act with a new section.
29 Payment of employer-financed benefits
This clause replaces existing section 29 of the Superannuation Act, which provided that benefits under NTGPASS were paid from the NTGPAES Fund. Once the NTGPAES Fund has been transferred to a successor fund, the only benefits payable under NTGPASS will be employer-financed benefits. Accordingly, new section 29 provides that all employer-financed benefits payable under NTGPASS are to be paid from the CHA, which is appropriated to the extent necessary to make those payments.
Clause 31 Section 30 amended (Commissioner may recover employer-financed benefits on behalf of Territory)
This clause amends section 30 of the Superannuation Act by replacing existing sections 30(1) and (2). The new provisions make consequential amendments as a result of the changes made to section 29 and also modernise drafting language used within section 30. The operation of section 30 is otherwise unchanged.
Clause 32 Section 36 repealed (Portability of benefits)
This clause repeals section 36 of the Superannuation Act. This is because section 36 provided a mechanism for entering into agreements for the portability of superannuation benefits between NTGPASS and an external superannuation scheme. As part of that mechanism, eligible employees could elect to pay money into the NTGPAES Fund. As the NTGPAES Fund is being transferred to a successor fund, section 36 is no longer needed. Of note is that new section 81(3) of the Superannuation Act, which is inserted by clause 62 of the Bill, provides that despite the repeal of section 36 by the Superannuation Legislation Amendment Act 2018, the validity of any existing agreement made under section 36 is not affected.
Clause 33 Part 3, Division 2 replaced
This clause replaces the existing Part 3, Division 2 of the Superannuation Act with a new Division 2.
Division 2 Administration of Scheme
38 Discontinuance of Fund
New section 38 of the Superannuation Act provides that the NTGPAES Fund is discontinued. This section commences after the NTGPAES Fund has been transferred to the successor fund.
39 Recovery of money owing by employees
New section 39 of the Superannuation Act replaces and updates existing section 42 (Recovery of money owing to fund). The replacement is needed because under the current section the Commissioner is empowered to recover money owing to the NTGPAES Fund on behalf of the STB. However, the NTGPAES Fund will be discontinued.
The new section provides the Commissioner with power to recover money from eligible employees and other persons that is owing to an accumulation account. The recovery powers are the same as in existing section 42. Amounts recovered under the section are paid into the eligible employee’s accumulation account (which will either be held in the successor fund or in another complying superannuation fund).
40 Annual report
New section 40 replaces and expands upon the Commissioner’s existing reporting obligations to the Minister in existing section 43 (Annual reports and audit). In particular, the Commissioner is currently required to prepare a report for the Minister on the operation and management of NTGPASS each financial year. Under new section 43, the Commissioner is required to prepare a report for the Minister on the operation and management of each NTG Scheme during the financial year. Consequently, in addition to reporting on NTGPASS, the Commissioner will be reporting on the operation and management of the LAMS Scheme, the Northern Territory Government Death and Invalidity Scheme, the Northern Territory Supplementary Superannuation Scheme and any other superannuation schemes administered by the Commissioner with the approval of the Minister (which currently includes the Administrators Pensions Scheme).
Clause 34 Section 45D replaced
This clause replaces the existing section 45D of the Superannuation Act with a new section.
45D Accounts for non-member spouses
New section 45D of the Superannuation Act simplifies the existing section 45D by providing that the Commissioner may, on request, establish a separate account in the accounts of NTGPASS to administer an amount to which a person is entitled as a non-member spouse under the Superannuation Act. The current section 45D requires the Commissioner to establish a separate account in the accounts of the NTGPAES Fund for the non-member spouse, and to accept payments of amounts into that account. The simplified section is needed because the NTGPAES Fund is discontinued under new section 38 of the Superannuation Act by clause 33 of the Bill.
Clause 35 Sections 45DC and 45DD replaced
This clause replaces the existing sections 45DC and 45DD of the Superannuation Act with new sections.
45DC Release amount
New section 45DC of the Superannuation Act replaces an existing provision relating to the release of amounts from superannuation as a consequence of Commonwealth taxation legislation. The new provision removes references to paying amounts from the NTGPAES Fund as a consequence of the discontinuance of the NTGPAES Fund. The section does not otherwise differ from the existing section 45DC.
45DD Effect of releasing benefit
New section 45DE of the Superannuation Act replaces an existing provision regarding the effect on a person’s superannuation benefits of releasing an amount to the Australian Taxation Office or a member under section 45DB(2). The new provision removes references to paying amounts from the NTGPAES Fund as a consequence of the discontinuance of the NTGPAES Fund. The section does not otherwise differ from the existing section 45DD.
Clause 36 Section 45DF replaced
This clause replaces the existing section 45DF of the Superannuation Act with a new section.
45DF Payment to eligible rollover fund
New section 45DF of the Superannuation Act replaces an existing provision which allows the Commissioner to pay an adherent’s unclaimed benefit to an eligible rollover fund. The new section differs from the original by replacing references to the STB with references to the Commissioner and by removing references to the NTGPAES Fund. The section does not otherwise differ from the existing section 45DF.
Clause 37 Section 45T amended (Information to be provided by Commissioner)
This clause replaces the example used in section 45T(1) of the Superannuation Act by removing references to the balance of a member’s accumulation account or surcharge debt account. References to a member’s accumulation account are no longer appropriate as this account will not be administered by the Commissioner.
Clause 38 Section 45X amended (Payment without grant of probate etc.)
This clause amends sections 45X(3) and (5) of the Superannuation Act by removing redundant references to the STB. This amendment is necessary because after transfer of the NTGPAES Fund, amendments to section 29 of the Superannuation Act made by clause 30 of the Bill ensure that the only benefits payable under NTGPASS will be employer-financed benefits for which the STB has no responsibility or involvement.
Clause 39 Section 50A replaced
This clause replaces the existing section 50A of the Superannuation Act with a new section.
50A Commissioner may charge fees
New section 50A of the Superannuation Act replaces an existing provision that provides the Commissioner with the power to charge fees for services provided at the request of a person. In particular, the current provision includes references to deducting fees from a person’s accumulation account, to levying fees against accumulation accounts and to charging an adherent an account keeping fee against the person’s accumulation account. As the Commissioner will no longer be responsible for managing or administering the accumulation accounts of members and adherents, new section 50A removes those subsections.
Division 2 Amendment of Northern Territory Government and Public Authorities’ Superannuation Scheme Rules
Clause 40 Rules amended
This clause provides that Division 2 amends the Northern Territory Government and Public Authorities’ Superannuation Scheme Rules.
Clause 41 Rule 1 amended (Definitions)
Clause 41(1) amends NTGPASS rule 1 by omitting the definition of ‘Government contribution’. This definition is no longer required, as Government contributions could only be made to the NTGPAES Fund, which is discontinued in clause 33 of the Bill by the insertion of new section 38 into the Superannuation Act.
Clause 41(2) amends NTGPASS rule 1 by amending the definition of ‘former member’ in order to omit a redundant reference to NTGPASS rule 13C(1). Rule 13C is being repealed by clause 54 of the Bill.
Clause 41(3) amends NTGPASS rule 1 by amending the definition of ‘preserved benefit’ in order to omit a redundant reference to NTGPASS rule 13C. Rule 13C is being repealed by clause 54 of the Bill.
Clause 42 Rule 5 amended (Contributions)
This clause inserts new NTGPASS subrule 5(9) into rule 5. Subrule 5(9) is needed as a consequence of the NTGPAES Fund being transferred to a new trustee in accordance with section 45DE of the Superannuation Act (which is amended in clause 5 of the Bill).
It provides that if an NTGPASS member makes contributions to their accumulation account while on a period of leave without pay covered by subrule 5(4A) or (6), then that contribution will be treated as a voluntary contribution under rule 5C that does not result in the accrual of an employer-financed benefit if:
• the member made the contribution without making an application in writing to the Commissioner of Superannuation, or
• the member made an application in writing to the Commissioner of Superannuation, but the Commissioner did not provide permission for the contribution.
Clause 43 Rule 5B amended (Salary sacrifice)
Clause 43(1) makes consequential amendment to NTGPASS rule 5B by omitting subrule 5B(2), which required salary sacrificed amounts contributed by NTGPASS members to be paid into the NTGPAES Fund. Instead, salary sacrificed contributions can be made to an accumulation account in any complying superannuation fund in the member’s name.
Clause 43(2) amends NTGPASS rule 5B(3) by removing a reference to the Part under which employer-financed benefits are calculated. The amendment is made solely for the purpose of simplifying the drafting of the provision and does not change its meaning.
Clause 44 Rule 5C amended (Voluntary contributions)
Clause 44(1) makes consequential amendment to NTGPASS rule 5C by omitting subrule 5C(2), which required the voluntary contributions of NTGPASS members to be paid into the NTGPAES Fund. Instead, these voluntary contributions can be made to an accumulation account in any complying superannuation fund in the member’s name.
Clause 44(2) amends NTGPASS rule 5C(3) by removing a reference to the Part under which employer-financed benefits are calculated. The amendment is made solely for the purpose of simplifying the drafting of the provision and does not change its meaning.
Clause 45 Rule 5D repealed (Co-contributions for low income earner)
This clause omits NTGPASS rule 5D, which is no longer required following the discontinuance of the NTGPAES Fund by the insertion of new section 38 into the Superannuation Act.
Clause 46 Rule 6 amended (Age retirement benefit)
This clause amends the superannuation benefits payable to NTGPASS members under NTGPASS rule 6 by removing references to those benefits including the member’s accumulation account in the NTGPAES Fund. This is because NTGPASS benefits will only comprise employer-financed benefits following the transfer of the accumulation accounts of NTGPASS members to a new superannuation fund to manage and invest on their behalf by section 45DE of the Superannuation Act (which is amended in clause 5 of the Bill).
Clause 47 Rule 6A amended (Benefit at preservation age)
This clause amends the superannuation benefits payable to NTGPASS members under NTGPASS rule 6A by removing references to those benefits including the member’s accumulation account in the NTGPAES Fund. This is because NTGPASS benefits will only comprise employer-financed benefits following the transfer of the accumulation accounts of NTGPASS members to a new superannuation fund to manage and invest on their behalf by section 45DE of the Superannuation Act (which is amended in clause 5 of the Bill).
Clause 48 Rule 7 amended (Resignation benefit)
This clause amends the superannuation benefits payable to NTGPASS members under NTGPASS rule 7 by removing references to those benefits including the member’s accumulation account in the NTGPAES Fund. This is because NTGPASS benefits will only comprise employer-financed benefits following the transfer of the accumulation accounts of NTGPASS members to a new superannuation fund to manage and invest on their behalf by section 45DE of the Superannuation Act (which is amended in clause 5 of the Bill).
Clause 49 Rule 8 replaced
This clause replaces existing NTGPASS rule 8 with a new rule.
8 Retrenchment benefit
New NTGPASS rule 8 replaces an existing rule by removing references to the retrenchment benefits paid to NTGPASS members including the member’s accumulation account in the NTGPAES Fund. This is because NTGPASS benefits will only comprise employer-financed benefits following the transfer of the accumulation accounts of NTGPASS members to a new superannuation fund to manage and invest on their behalf by section 45DE of the Superannuation Act (which is amended in clause 5 of the Bill).
Clause 50 Rule 9 amended (Death benefit)
This clause amends the superannuation benefits payable in respect of deceased NTGPASS members under NTGPASS rule 9 by removing references to those benefits including the member’s accumulation account in the NTGPAES Fund. This is because NTGPASS benefits will only comprise employer-financed benefits following the transfer of the accumulation accounts of NTGPASS members to a new superannuation fund to manage and invest on their behalf by section 45DE of the Superannuation Act (which is amended in clause 5 of the Bill).
Clause 51 Rule 10 amended (Invalidity retirement benefit)
This clause amends the invalidity superannuation benefits payable to NTGPASS members under NTGPASS rule 10 by removing references to those benefits including the member’s accumulation account in the NTGPAES Fund. This is because NTGPASS benefits will only comprise employer-financed benefits following the transfer of the accumulation accounts of NTGPASS members to a new superannuation fund to manage and invest on their behalf by section 45DE of the Superannuation Act (which is amended in clause 5 of the Bill).
Clause 52 Rule 13A amended (Crystallisation of benefits)
This clause amends NTGPASS rule 13A by providing that when the Commissioner crystallises unpaid NTGPASS benefits under that rule, the benefits will comprise only employer-financed benefits, which are then to be paid into an eligible rollover fund as if the benefits were being paid.
The payment of NTGPASS benefits to an eligible rollover fund is authorised by section 45DF of the Superannuation Act, which is amended by clause 36 of the Bill.
Clause 53 Rule 13B amended (Returned benefits)
The clause amends NTGPASS rule 13B, dealing with NTGPASS benefits that were paid to another fund but returned. The amendments provide that returned benefits are to be paid into the CHA and that the former member to whom the benefits relate remains entitled to their payment.
Clause 54 Rule 13C repealed (Payments from NTSSS or NTPSBS)
This clause repeals NTGPASS rule 13C. Rule 13C used to create an account in the NTGPAES Fund for members of the Northern Territory Supplementary Superannuation Scheme and the Northern Territory Police Supplementary Benefits Scheme, in circumstances where members of those schemes failed to claim their superannuation benefit in accordance with the rules of those schemes.
Rule 13C is being repealed because the NTGPAES Fund is being discontinued by new section 38 of the Superannuation Act (which is inserted by clause 33 of the Bill). Consequently, it will no longer be possible to open accounts in the NTGPAES fund (or to pay superannuation benefits from other schemes into such accounts).
Clause 55 Rule 13D amended (Deduction of surcharge from preserved benefits)
This clause makes consequential amendments to NTGPASS rule 13D. It provides that a person’s superannuation surcharge liability is to be paid from an NTGPASS member’s accrued employer component rather than from their accumulation account.
Part 5 Stage 4 amendments
Division 1 Amendments to the Superannuation Act relating to termination of Trustee Board
Clause 56 Act amended
This clause provides that Division 1 amends the Superannuation Act.
Clause 57 Section 3 amended (Interpretation)
Clause 57(1) amends section 3(1) of the Superannuation Act by omitting the definitions of ‘appointed Board member’, ‘committee member’, ‘Police Association’, ‘Trustee Board’ and ‘Unions NT’. These definitions are omitted because they solely related to the STB, which is being terminated by this Division of the Bill.
Clause 57(2) amends section 3(1) of the Superannuation Act by replacing paragraph (e) of the definition of ‘NTG Scheme’ so that it refers to superannuation schemes administered by the Commissioner with the approval of the Minister. Previously that paragraph referred to a scheme in relation to which the STB exercises powers or performs functions.
Clause 58 Part 2, Division 1A repealed (Superannuation Trustee Board)
This clause repeals Part 2, Division 1A of the Superannuation Act, which establishes the STB, specifies its membership, establishes its procedures and provides for other matters relating to that Board. The Division is being repealed, and the STB terminated, because the STB will no longer have any functions or powers after commencement of provisions within the Bill. Transitional provisions following termination of the STB are set out in new Part 10 of the Superannuation Act (which is inserted by clause 62 of the Bill).
Clause 59 Section 49B replaced
This clause replaces the existing section 49B of the Superannuation Act with a new section.
49B Reviewable decisions
New section 49B of the Superannuation Act updates an existing section by removing references to decisions being made by the STB, and instead only refers to decisions being made by the Commissioner. Of note is that if a decision has in fact been made by the STB, new section 79 of the Superannuation Act (which is inserted by clause 62 of the Bill), provides that among other things any proceedings that could have been commenced by or against the STB may only be commenced by or against the Commissioner.
New section 49B also updates the drafting style of the existing provision in setting out when the Commissioner is taken to have made a decision or is taken to have failed to make a decision.
Clause 60 Section 49J amended (Information to be provided to Commissioner or Trustee Board)
This clause amends section 49J of the Superannuation Act by making consequential amendments that remove references to the STB, including by amending the heading to that section.
Clause 61 Section 49K amended (Misleading information)
This clause amends section 49K of the Superannuation Act by making consequential amendments that remove references to the STB.
Clause 62 Part 10 inserted
This clause inserts a new Part 10 into the Superannuation Act. That Part provides transitional provisions arising from the termination of the STB, and the transfer of its functions and powers to the Commissioner of Superannuation.
Part 10 Transitional matters for Superannuation Legislation Amendment Act 2018
78 Definitions
New section 78 of the Superannuation Act inserts definitions for the terms ‘commencement’ and ‘Trustee Board’ that are to apply only in this Part.
• ‘commencement’. This is defined to mean the commencement of Part 5, of the Superannuation Legislation Amendment Act 2018.
• ‘Trustee Board’. This is defined to mean the Trustee Board as constituted on the transfer date under section 8A of the Superannuation Act immediately before commencement.
79 Transfer of functions
New section 79 of the Superannuation Act provides that on commencement:
(1) The Commissioner is substituted for the Trustee Board in any proceedings to which the Trustee Board is a party.
(2) The Commissioner is substituted for the Trustee Board in any agreement or document.
(3) Any proceedings that could have been commenced by or against the Trustee Board may only be commenced by or against the Commissioner.
(4) Any remedy that would have been available to or against the Trustee Board is only available to or against the Commissioner.
80 Exemption from taxes and charges
New section 80(1) of the Superannuation Act provides that so far as the legislative power of the Legislative Assembly permits, no tax or charge is chargeable in relation to any act or thing that occurs by operation of the Superannuation Legislation Amendment Act 2018, to any act or thing done under or to give effect to that Act, or to any act or thing done for a purpose connected with, or arising out of, giving effect to that Act.
New section 80(3) of the Superannuation Act provides that where a tax or charge under a law of a jurisdiction other than the Territory is payable in relation to an act or thing mentioned in subsection (1), it is to be paid from the CHA, which is appropriated accordingly.
81 Continuation of ongoing matters
New section 81(1) of the Superannuation Act provides that anything done or omitted to be done by, to or in relation to the Trustee Board before commencement that has effect after that date is taken to have been done or omitted to be done by, to, or in relation to the Commissioner.
New section 81(2) of the Superannuation Act provides that, to avoid doubt, section 8V of the Superannuation Act (which provides certain indemnities to members of the STB) continues to apply to members of the Trustee Board after commencement in relation to anything done or omitted to be done by, to, or in relation to the Trustee Board before the commencement.
New section 81(3) of the Superannuation Act provides that, to avoid doubt, the repeal of section 36 of the Superannuation Act by the Superannuation Legislation Amendment Act 2018 does not affect the validity of any agreement made under that section.
Division 2 Amendment of Superannuation Regulations
Clause 63 Regulations amended
This clause provides that Division 2 amends the Superannuation Regulations.
Clause 64 Regulation 6 repealed (Trustee Board common seal)
This clause repeals regulation 6 of the Superannuation Regulations, which deals with the common seal of the STB. This regulation becomes redundant when the STB is terminated under Part 5, Division 1 of the Bill.
Part 6 Repeal
Clause 65 Repeal of Act
This is a standard clause for legislation which consists entirely of amendments to other legislation. It provides that the Bill ceases to have effect once it has performed its function of amending the other legislation.
Schedule Legislative Assembly Members’ Superannuation Fund Act further amended
The Schedule sets out a number of consequential amendments to the LAMS Act arising from the transfer of functions and powers under that Act from the STB to the Commissioner of Superannuation. The Schedule also makes a number of references to members and other persons under the LAMS Act gender neutral.