SUPERANNUATION ACT 2005

This compilation was prepared on 28 March 2012
taking into account amendments up to Act No. 58 of 2011

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General's Department, Canberra

Contents

Part 1--Introduction 1

1............ Short title [see Note 1] ........................................................................ 1

2............ Commencement ................................................................................... 1

3............ Simplified outline ................................................................................ 2

4............ Definitions .......................................................................................... 2

5............ Public sector employees ...................................................................... 4

6............ Extended meaning of employed ........................................................... 5

7............ Statutory offices .................................................................................. 6

8............ Approved authorities ........................................................................... 7

9............ Application of Act ............................................................................... 9

Part 2--The Trust Deed 10

10.......... Deed to establish PSSAP etc. ........................................................... 10

11.......... Amendment of Trust Deed ................................................................ 10

12.......... Family law interest splitting .............................................................. 11

Part 3--Members of Public Sector Superannuation Accumulation Plan (PSSAP) 12

13.......... Eligibility for membership of PSSAP ............................................... 12

14.......... Becoming a member of PSSAP ........................................................ 13

15.......... Duration of membership of PSSAP .................................................. 15

16.......... PSSAP is the sole eligible choice fund in relation to APS employees etc. for certain purposes 16

Part 4--Contributions 17

17.......... Contributions to PSSAP by designated employers ........................... 17

18.......... Ordinary employer-sponsored member of PSSAP ........................... 17

19.......... Designated employers ....................................................................... 19

Part 5--Administration 22

Division 1--CSC 22

20.......... Functions and powers ....................................................................... 22

29.......... Indemnification ................................................................................. 22

Division 3--Ministerial powers 23

32.......... Making of certain legislative instruments .......................................... 23

33.......... Delegation by Minister ...................................................................... 23

Division 4--Costs of administration 25

34.......... Costs of administration of Act etc. .................................................... 25

35.......... Estimates ........................................................................................... 25

36.......... Certain authorities to pay part of estimated costs of administration ... 25

37.......... Payment of fees ................................................................................. 26

38.......... CSC liable to pay surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 .......................................................................................................... 27

Division 5--Other administrative matters 28

39.......... Amounts payable to the CSC ............................................................ 28

40.......... Recovery of overpayments ................................................................ 28

41.......... CSC may rely on information supplied by employers or former employers 28

42.......... CSC may require employers to distribute information etc. to members of PSSAP 29

Part 6--Miscellaneous 30

43.......... Ordinary employer-sponsored member not to be retired on grounds of invalidity without CSC certificate 30

44.......... Persons subject to Rules ................................................................... 30

45.......... Regulations ....................................................................................... 31

46.......... Regulations relating to the operation of the Superannuation Industry (Supervision) Act 1993 and certain other laws .......................................................................................................... 31

Notes 33

Act	Number and year	Date of Assent	Date of commencement	Application, saving or transitional provisions
Superannuation Act 2005	80, 2005	29 June 2005	29 June 2005
Superannuation Legislation Amendment (Trustee Board and Other Measures) Act 2006	51, 2006	9 June 2006	Schedule 1 (items 60-63, 66-84): 1 July 2006	Sch. 1 (items 66-84)
Superannuation Legislation Amendment (Superannuation Safety and Other Measures) Act 2006	112, 2006	23 Oct 2006	Schedule 1 (items 26-28): Royal Assent	--
Superannuation Legislation Amendment Act 2007	165, 2007	25 Sept 2007	Schedule 2 (items 4-6): 1 July 2008	--
Statute Law Revision Act 2011	5, 2011	22 Mar 2011	Schedule 6 (item 134): 19 Apr 2011	--
Acts Interpretation Amendment Act 2011	46, 2011	27 June 2011	Schedule 2 (item 1084): (a) Schedule 2 (items 1085, 1086): (a) Schedule 3 (items 10, 11): 27 Dec 2011	Sch. 3 (items 10, 11)
Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011	58, 2011	28 June 2011	Schedule 1 (items 222-239, 247(4)): (b)	--

Commencement information
2. Schedule 1	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	27 December 2011
9. Schedule 2, item 1084	The later of: (a) immediately after the commencement of the provision(s) covered by table item 2; and (b) immediately after the commencement of item 222 of Schedule 1 to the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.	27 December 2011 (paragraph (a) applies)
10. Schedule 2, items 1085 and 1086	At the same time as the provision(s) covered by table item 2. However, if item 234 of Schedule 1 to the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011 commences at or before that time, the provision(s) do not commence at all.	Do not commence

Provision(s)	Commencement	Date/Details
2. Schedules 1 and 2	Immediately after the commencement of section 2 of the Governance of Australian Government Superannuation Schemes Act 2011.	1 July 2011

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Part 1
S. 3......................................	am. No. 51, 2006; No. 58, 2011
S. 4......................................	am. Nos. 5, 46 and 58, 2011
Part 2
S. 12....................................	am. No. 58, 2011
Part 3
S. 13....................................	am. No. 165, 2007; No. 58, 2011
S. 14....................................	am. No. 58, 2011
Note to s. 14(4) Renumbered Note 1.......	No. 165, 2007
Note 2 to s. 14(4)................	ad. No. 165, 2007
	am. No. 58, 2011
Part 4
S. 17....................................	am. No. 58, 2011
Note to s. 17(2)...................	am. No. 58, 2011
Ss. 18, 19............................	am. No. 58, 2011
Part 5
Division 1
Heading to Div. 1 of Part 5	rs. No. 58, 2011
S. 20....................................	rs. No. 58, 2011
Note to s. 20(2)...................	am. No. 51, 2006
	rs. No. 58, 2011
Ss. 21-27............................	rep. No. 58, 2011
S. 28....................................	am. No. 112, 2006
	rep. No. 58, 2011
Heading to s. 29.................	am. No. 58, 2011
S. 29....................................	am. No. 58, 2011
Note to s. 29(2)...................	ad. No. 58, 2011
Div. 2 of Part 5....................	rep. No. 58, 2011
Ss. 30, 31............................	rep. No. 58, 2011
Division 3
Ss. 32, 33............................	am. No. 58, 2011
Division 4
Ss. 34-36............................	am. No. 58, 2011
S. 37....................................	am. No. 51, 2006; No. 58, 2011
Heading to s. 38.................	am. No. 58, 2011
S. 38....................................	am. No. 58, 2011
Division 5
Heading to s. 39.................	am. No. 58, 2011
Ss. 39, 40............................	am. No. 58, 2011
Heading to s. 41.................	am. No. 58, 2011
S. 41....................................	am No. 51, 2006; No. 58, 2011
Heading to s. 42.................	am. No. 58, 2011
S. 42....................................	am. No. 58, 2011
Part 6
Heading to s. 43.................	am. No. 58, 2011
S. 43....................................	am. No. 58, 2011
S. 45....................................	am. No. 58, 2011

Table A

Application, saving or transitional provisions

Superannuation Legislation Amendment (Trustee Board and Other Measures) Act 2006 (No. 51, 2006)

Schedule 1

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.

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.

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

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.

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.

Acts Interpretation Amendment Act 2011 (No. 46, 2011)

Schedule 3

10 Saving--appointments

The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.

11 Transitional regulations

The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.

Commonwealth Consolidated Acts

SUPERANNUATION ACT 2005 - NOTES

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
2. Schedule 1	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	27 December 2011
9. Schedule 2, item 1084	The later of: (a) immediately after the commencement of the provision(s) covered by table item 2; and (b) immediately after the commencement of item 222 of Schedule 1 to the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.	27 December 2011 (paragraph (a) applies)
10. Schedule 2, items 1085 and 1086	At the same time as the provision(s) covered by table item 2. However, if item 234 of Schedule 1 to the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011 commences at or before that time, the provision(s) do not commence at all.	Do not commence