House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Finance and Deregulation,Senator The Honourable Penny Wong)

SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS

7.Schedule 1 contains consequential amendments to a range of legislation to reflect:

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the establishment of CSC as the trustee for the main civilian and military superannuation schemes

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the abolition of the position of Commissioner for Superannuation and replacement with the position of CEO of ComSuper

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the establishment of ComSuper as a statutory agency

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the transfer of responsibility for certain decisions under the Governor-General Act 1974 to the Finance Secretary.

8.Schedule 1 also contains amendments to facilitate modernisation of the current civilian superannuation arrangements and to allow for Parliamentary scrutiny of superannuation Deeds made under the MSB Act, consistent with the approach for Deeds made under the 1990 Act and the Superannuation Act 2005 (2005 Act).

Part 1 - General amendments

Administrative Appeals Tribunal Act 1975 (AAT Act)

Items 1 to 3 - Transfer of functions to CSC

9. Item 1 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the AAT Act by reference to the definition in the Governance Bill.

10. Items 2 and 3 of Schedule 1 update references to the board of the Commonwealth Superannuation Corporation (Board) in sections 13 and 24K of the AAT Act to reflect the establishment of CSC as the responsible trustee.

Auditor-General Act 1997 (AG Act)

Items 4 to 11 - Transfer of functions to CSC

11. Item 4 of Schedule 1 inserts a definition of "CSC" in subsection 5(1) of the AG Act by reference to the definition in the Governance Act.

12. Item 5 of Schedule 1 amends subsection 14(1) of the AG Act to ensure fees are payable, as prescribed by the Auditor-General in respect of the Auditor-General's role of auditing the financial statements of the superannuation funds for which CSC is responsible.

13. Items 6 to 11 of Schedule 1 update references to the Board in paragraph 6 of Schedule 1 and paragraph 5 of Schedule 2 to the AG Act to reflect the establishment of CSC as the responsible trustee.

Australian Crime Commission Act 2002 (ACC Act)

Items 12 to 14 - Transfer of functions to CSC

14. Item 12 of Schedule 1 inserts a definition of "CSC" in subsection 4(1) of the ACC Act by reference to the definition in the Governance Bill.

15. Items 13 and 14 of Schedule 1 update references to the Board in sections 44 and 46H of the ACC Act to reflect the establishment of CSC as the responsible trustee.

Australian Federal Police Act 1979 (AFP Act)

Items 15 to 17 - Transfer of functions to CSC

16. Item 15 of Schedule 1 inserts a definition of "CSC" in subsection 4(1) of the AFP Act by reference to the definition in the Governance Bill.

17. Items 16 and 17 of Schedule 1 update references to the Board in section 32 of the AFP Act, and removes reference to the Commissioner, in amending the definition of "superannuation authority" in section 41 of the AFP Act, to reflect the establishment of CSC as the responsible trustee for the civilian superannuation schemes, including the 1922 scheme and the PNG.

Australian Prudential Regulation Authority Act 1998 (APRA Act)

Items 18 and 19 - Transfer of functions to CSC

18. Item 18 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the APRA Act by reference to the definition in the Governance Bill.

19. Item 19 of Schedule 1 updates references to the Board in section 25 of the APRA Act to reflect the establishment of CSC as the responsible trustee.

Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act)

Items 20 to 23 - Transfer of functions to CSC

20. Item 20 of Schedule 1 inserts a definition of "CSC" in section 13 of the ARPANS Act by reference to the definition in the Governance Bill.

21. Items 21 to 23 of Schedule 1 update references to the Board in section 51 of the ARPANS Act to reflect the establishment of CSC as the responsible trustee.

Australian Securities and Investments Commission Act 2001 (ASIC Act)

Items 24 and 25 - Transfer of functions to CSC

22. Item 24 of Schedule 1 inserts a definition of "CSC" in subsection 5(1) of the ASIC Act by reference to the definition in the Governance Bill.

23. Item 25 of Schedule 1 updates references to the Board in section 111 of the ASIC Act to reflect the establishment of CSC as the responsible trustee.

Building and Construction Industry Improvement Act 2005 (BCII Act)

Items 26 and 27 - Transfer of functions to CSC

24. Item 26 of Schedule 1 inserts a definition of "CSC" in subsection 4(1) of the BCII Act by reference to the definition in the Governance Bill.

25. Item 27 of Schedule 1 updates references to the Board in section 24 of the BCII Act to reflect the establishment of CSC as the responsible trustee.

Classification (Publications, Films and Computer Games) Act 1995 (Classification Act)

Items 28 to 30 - Transfer of functions to CSC

26. Item 28 of Schedule 1 inserts a definition of "CSC" in section 5 of the Classification Act by reference to the definition in the Governance Bill.

27. Items 29 and 30 of Schedule 1 update references to the Board in sections 65 and 83 of the Classification Act to reflect the establishment of CSC as the responsible trustee.

Coordinator-General for Remote Indigenous Services Act 2009 (CGRIS Act)

Items 31 and 32 - Transfer of functions to CSC

28. Item 31 of Schedule 1 inserts a definition of "CSC" in section 4 of the CGRIS Act by reference to the definition in the Governance Bill.

29. Item 32 of Schedule 1 updates references to the Board in section 26 of the CGRIS Act to reflect the establishment of CSC as the responsible trustee.

Crimes (Superannuation Benefits) Act 1989 (CSB Act)

Items 33 and 34 - Transfer of functions to CSC

30. Item 33 of Schedule 1 inserts a definition of "CSC" in subsection 2(1) of the CSB Act by reference to the definition in the Governance Bill.

31. Item 34 of Schedule 1 updates references to the Board, and removes a reference to the Commissioner for Superannuation, in amending the definition of "superannuation authority" in subsection 2(1) of the CSB Act, to reflect the establishment of CSC as the responsible trustee for the civilian superannuation schemes, including the 1922 scheme and the PNG.

Defence Act 1903

Item 35 - Transfer of functions to CSC

32. Item 35 of Schedule 1 makes a consequential amendment to section 53 of the Defence Act 1903 as a result of CSC becoming responsible for matters that are currently the responsibility of the DFRDB Authority.

Defence Force Retirement and Death Benefits Act 1973 (DFRDB Act)

Items 36 to 58 - Transfer of functions to CSC

33. Item 36 of Schedule 1 amends the definition of "Authority" in subsection 3(1) of the DFRDB Act as a consequence of the abolition of the DFRDB Authority, effected by item 44 of Schedule 1. The definition is updated to refer to the Authority that existed prior to its abolition.

34. Item 37 of Schedule 1 repeals the definition of "Board" in subsection 3(1) of the DFRDB Act as a consequence of CSC replacing the Board as the responsible trustee.

35. Item 38 of Schedule 1 amends the definition of "Commissioner for Superannuation" in subsection 3(1) of the DFRDB Act by reference to the definition in the Superannuation Act 1976 (1976 Act), which refers to the position of Commissioner that existed prior to its abolition.

36. Item 39 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the DFRDB Act by reference to the definition in the Governance Bill.

37. Item 40 of Schedule 1 inserts a definition of "decision" in subsection 3(1) of the DFRDB Act, having the same meaning as in the AAT Act. This definition was formerly contained in subsection 99(1) of the DFRDB Act and is repealed by item 53 of Schedule 1.

38. Item 41 of Schedule 1 inserts a definition of "decision of CSC" in subsection 3(1) of the DFRDB Act to provide that such references mean decisions made under the DFRDB Act, the DFRB Act or in any other Act that modifies or affects the provisions of the DFRB Act. This definition distinguishes between decisions of CSC in relation to its responsibilities under the DFRDB Act and the DFRB Act, and decisions in relation to its responsibilities under other Acts. This definition replaces a definition of "decision of the Authority" that was formerly contained in subsection 99(1) of the DFRDB Act and is repealed by item 53 of Schedule 1.

39. Item 42 of Schedule 1 inserts a definition of "Defence Force Case Assessment Panel" in subsection 3(1) of the DFRDB Act to refer to the Panel established under the new section 100 of the DFRDB Act, as inserted by item 58 of Schedule 1.

40. Item 43 of Schedule 1 inserts a definition of "Defence Forces Retirement Benefits Board" or "Board" in subsection 3(1) of the DFRDB Act to refer to that Board before its abolition.

41. Item 44 of Schedule 1 repeals Part II of the DFRDB Act, which establishes the Authority. The Authority is abolished and its role taken over by CSC.

42. Items 45, 47 and 48 of Schedule 1 replace references to the Commissioner for Superannuation with references to CSC in sections 36 and 61 of the DFRDB Act. This reflects the abolition of the position of Commissioner and CSC taking on the relevant responsibilities of the Commissioner.

43. Item 46 of Schedule 1 updates a reference to the Chairman in subsection 49C(2) of the DFRDB Act to reflect the establishment of CSC as the responsible trustee.

44. Item 49 of Schedule 1 updates references to the Board in section 61A of the DFRDB Act to reflect the establishment of CSC as the responsible trustee.

45. Item 50 of Schedule 1 repeals the definition of "Board" in subsection 85(1) of the DFRDB Act as a consequence of item 43 of Schedule 1.

46. Item 51 of Schedule 1 updates the heading to Part XI of the DFRDB Act to reflect the establishment of CSC as the responsible trustee and set up a review structure for decisions of CSC.

47. Item 52 of Schedule 1 inserts a new heading in Part XI of the DFRDB Act to reflect the creation of three Divisions in Part XI of the DFRDB Act to set up the new review structure for decisions of CSC.

48. Item 53 of Schedule 1 repeals subsection 99(1) of the DFRDB Act, as the definitions contained in this subsection have been inserted in subsection 3(1) of the DFRDB Act by items 40 and 41 of Schedule 1.

49. Items 54 and 56 of Schedule 1 update references to "the Authority" in section 99 of the DFRDB Act to reflect the establishment of CSC as the responsible trustee.

50.Subsection 99(4) of the DFRDB Act currently requires the Authority to reconsider a decision when a request is received. As a consequence of CSC becoming the responsible trustee under the DFRDB Act, item 55 of Schedule 1 replaces subsection 99(4) to provide for a review structure for decisions of CSC.

51.New subsection 99(4A) allows CSC to confirm, vary or replace a decision that it reconsiders.

52.Subsection 99(6) of the DFRDB Act currently provides for reviews of reconsidered decisions by the Administrative Appeals Tribunal. Item 57 of Schedule 1 repeals subsection 99(6) of the DFRDB Act as a consequence of the new Division 3 of Part XI inserted by item 58 of Schedule 1.

53. Item 58 of Schedule 1 inserts new provisions into the DFRDB Act to require CSC to establish the Defence Force Case Assessment Panel (the Panel), and sets out certain requirements in relation to the membership, functions and operation of the Panel. As a result of CSC becoming responsible for administering the DFRDB and the DFRB, it is appropriate for decisions of CSC to be subject to reconsideration to provide further consistency with the other superannuation schemes for which CSC will be responsible for administering.

54.New section 100 provides that CSC must establish the Panel.

55.New section 101 provides that the Panel must comprise a director of CSC nominated by the Chief of the Defence Force (as determined by CSC), a person nominated by the Chief of the Air Force, a person nominated by the Chief of the Army, and a person nominated by the Chief of the Navy, and up to a maximum of 2 other such persons as CSC determines. Providing for Defence Force representation will allow the Panel to draw on people who have expertise in relation to the unique requirements of military service.

56.The Chair of the Panel must be one of the directors of the governing Board of CSC who was originally nominated by the Chief of the Defence Force. As the Governance Bill provides for the Chief of the Defence Force to nominate two directors, CSC will determine which of these directors will be the Chair of the Panel.

57.New section 102 sets out the functions of the Panel. These functions are to review any decision referred to it under Part XI of the DFRDB Act, as amended by the Bill, and:

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exercise powers delegated to it by CSC in relation to the decision

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if no powers have been delegated to the Panel by CSC in relation to the decision, to make recommendations to CSC in relation to the decision.

58.The Panel must take into account any evidence relevant to the decision that is submitted to it and may take steps to obtain other evidence that it considers necessary for a proper review of the decision.

59.New subsection 103(1) provides that the Panel may regulate its proceedings as it thinks fit, subject to any directions given by CSC. New subsection 103(2) clarifies that if a direction by CSC is given in writing, it is not a legislative instrument for the purposes of the Legislative Instruments Act because it is administrative in character. It does not determine or alter the content of the law. The provision is included to assist readers and is merely declaratory.

60.New section 104 provides that any matter or thing done, or omitted to be done, in good faith by a member of a Panel in the performance of functions under Division 2 of Part XI of the DFRDB Act does not subject him or her to any action, liability, claim or demand. The purpose of this provision is to direct any action, liability, claim or demand related to CSC rather than a member of a Panel in the performance of functions under the DFRDB Act. Clause 35 of the Governance Bill provides that any money payable by CSC in respect of an action, liability, claim or demand that relates to an Act that it administers, regulations made under such an Act, or a governing deed, is to be paid out of the Consolidated Revenue Fund (CRF).

61.New section 105 establishes the remuneration and allowances for members of the Panel. Members are to be paid such remuneration as determined by the Remuneration Tribunal. Where there is no operative determination by the Remuneration Tribunal, Panel members are to be paid such remuneration as is prescribed by regulation. Members are also to be paid such allowances as are prescribed by regulation. The provision has effect subject to the Remuneration Tribunal Act 1973 .

62.New section 106 refers to cases where the Panel makes recommendations to CSC in relation to decisions referred to the Panel. CSC is to take into account the recommendations of the Panel and any other matter that it considers relevant as part of its considerations. CSC's decision is to be recorded in writing. The written decision must include reasons for the decision and a copy is to be made available to the applicant.

63.New section 107 provides for review of decisions that have been reconsidered by CSC or the Panel, by the Administrative Appeals Tribunal. This was previously provided for under subsection 99(6) of the DFRDB Act.

Defence Forces Retirement Benefits Act 1948 (DFRB Act)

Items 59 to 80 - Transfer of functions to CSC

64. Item 59 of Schedule 1 inserts a definition of "CSC" in subsection 4(1) of the DFRB Act by reference to the definition in the Governance Bill.

65. Item 60 of Schedule 1 amends the definition of "the Authority" in subsection 4(1) of the DFRB Act as a consequence of the abolition of the DFRDB Authority, effected by item 44 of Schedule 1. The definition is updated to refer to the Authority that existed prior to its abolition.

66.Section 12A of the DFRB Act allows the Authority to delegate its powers under the Act. Item 61 of Schedule 1 repeals section 12A of the DFRB Act as a consequence of the abolition of the Authority and the establishment of CSC as the responsible trustee for the DFRB. Clause 36 of the Governance Bill allows CSC to delegate its powers under an Act administered by it, which includes the DFRB Act.

67. Items 62 to 71, and 75 to 80 of Schedule 1 update references to "the Authority" in various provisions of the DFRB Act to reflect the establishment of CSC as the responsible trustee.

68. Item 72 of Schedule 1 repeals the definition of "Chairman" in section 80A of the DFRB Act to reflect the abolition of the Authority.

69. Items 73 and 74 of Schedule 1 update references to the Chairman in sections 80B and 80C of the DFRB Act to reflect the establishment of CSC as the responsible trustee.

Director of Public Prosecutions Act 1983 (DPP Act)

Items 81 and 82 - Transfer of functions to CSC

70. Item 81 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the DPP Act by reference to the definition in the Governance Bill.

71. Item 82 of Schedule 1 updates references to the Board in section 23 of the DPP Act to reflect the establishment of CSC as the responsible trustee.

Family Law Act 1975 (FL Act)

Items 83 and 84 - Transfer of functions to CSC

72. Item 83 of Schedule 1 inserts a definition of "CSC" in subsection 4(1) of the FL Act by reference to the definition in the Governance Bill.

73. Item 84 of Schedule 1 updates references to the Board in section 38K of the FL Act to reflect the establishment of CSC as the responsible trustee.

Federal Court of Australia Act 1976 (FCA Act)

Items 85 to 87 - Transfer of functions to CSC

74. Item 85 of Schedule 1 inserts a definition of "CSC" in section 4 of the FCA Act by reference to the definition in the Governance Bill.

75. Items 86 and 87 of Schedule 1 update references to the Board in sections 18K and 37I of the FCA Act to reflect the establishment of CSC as the responsible trustee.

Financial Management and Accountability Regulations 1997

Items 88 and 89 - Abolition of Commissioner and establishment of CSC

76. Item 88 of Schedule 1 repeals the current details of ComSuper as a prescribed agency for the purposes of the FMA Act and substitutes new details. This is as a consequence of the abolition of the position of Commissioner for Superannuation, replacing that position with a new position of CEO of ComSuper and moving ComSuper's governance framework from the 1976 Act to the ComSuper Bill.

77. Item 89 of Schedule 1 repeals Part 2 of Schedule 1 to the Financial Management and Accountability Regulations 1997 . This Part currently provides that ARIA is a prescribed agency for the purposes of the FMA Act. This will no longer be necessary, as CSC will be subject to the Commonwealth Authorities and Companies Act 1997 .

Gene Technology Act 2000 (GT Act)

Items 90 to 93 - Transfer of functions to CSC

78. Item 90 of Schedule 1 inserts a definition of "CSC" in subsection 10(1) of the GT Act by reference to the definition in the Governance Bill.

79. Items 91 to 93 of Schedule 1 update references to the Board in section 119 of the GT Act to reflect the establishment of CSC as the responsible trustee.

Governor-General Act 1974 (GG Act)

Item 94 to 101 - Transfer of functions to the Secretary

80. Item 94 of Schedule 1 inserts a definition of "Finance Secretary" in subsection 2A(2) of the GG Act. On the abolition of the position of the Commissioner, those functions previously performed and powers previously exercised by the Commissioner will transfer to the Finance Secretary.

81. Item 95 of Schedule 1 repeals the definition of "the Commissioner" in subsection 2A(2) of the GG Act. As the position of the Commissioner will be abolished, this provision will no longer be required.

82. Items 96 to 100 of Schedule 1 replace references to the Commissioner in sections 2B, 2C, 4A and 4B of the GG Act with references to the Finance Secretary. On the abolition of the position of the Commissioner, those functions previously performed and powers previously exercised by the Commissioner will transfer to the Finance Secretary.

83. Item 101 of Schedule 1 inserts a new section 16 in the GG Act to allow the Finance Secretary to delegate, in writing, all or any of the Finance Secretary's powers under this Act to an SES employee in his or her Department. The provision makes it clear that, in exercising powers under a delegation, the delegate must comply with any written directions of the Finance Secretary.

Inspector-General of Taxation Act 2003 (IGT Act)

Items 102 and 103 - Transfer of functions to CSC

84. Item 102 of Schedule 1 inserts a definition of "CSC" in section 4 of the IGT Act by reference to the definition in the Governance Bill.

85. Item 103 of Schedule 1 updates references to the Board in section 35 of the IGT Act to reflect the establishment of CSC as the responsible trustee.

Military Superannuation and Benefits Act 1991

Items 104 to 114 - Transfer of functions to CSC

86. Item 104 of Schedule 1 amends the definition of "Board" in subsection 3(1) of the MSB Act as a consequence of the abolition of the MSB Board, effected by item 110 of Schedule 1. The definition is updated to refer to the Board that existed prior to its abolition.

87. Item 105 of Schedule 1 repeals the definition of "Chairperson" in subsection 3(1) of the MSB Act to reflect the abolition of the MSB Board.

88. Item 106 of Schedule 1 repeals the definition of "Commissioner" in subsection 3(1) of the MSB Act to reflect the abolition of the position of Commissioner for Superannuation.

89. Item 107 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the MSB Act by reference to the definition in the Governance Bill.

90. Item 108 of Schedule 1 adds a note to the definition of "Fund" in subsection 3(1) of the MSB Act to reflect the establishment of CSC as the responsible trustee, and consequently the fund is vested in CSC. Item 2 of Part 2 of Schedule 2 provides for the Fund to be vested in CSC.

91. Item 109 of Schedule 1 repeals the definition of "trustee" in subsection 3(1) of the MSB Act to reflect the abolition of the MSB Board.

92. Item 110 of Schedule 1 repeals Parts 6 and 7 of the MSB Act. Part 6 establishes the MSB Board, and Part 7 defines the Commissioner for Superannuation's functions under MSB Act. These amendments are consequential on abolishing the MSB Board, abolishing the position of Commissioner for Superannuation, replacing the position with a new CEO position, and moving ComSuper's governance framework from the 1976 Act to the ComSuper Bill. The CEO of ComSuper will have the same responsibilities in relation to administration of the MSB as the Commissioner for Superannuation currently does.

93.Item 110 also provides that CSC functions and powers are those set out in the Trust Deed and that it is also responsible for the general administration of the MSB Act.

94. Item 111 of Schedule 1 repeals paragraphs 47(1)(a),(b) and (c) of the MSB Act, which indemnifies trustees of the MSB Board, the Commissioner for Superannuation and the staff assisting the Commissioner. It also reflects the abolition of the Commissioner for Superannuation and replacement with a CEO position and moving ComSuper's governance framework from the 1976 Act to the ComSuper Bill. Clause 35 of the Governance Bill provides for the indemnification of directors of the Board whilst clause 26 of the ComSuper Bill provides for indemnification of the CEO of ComSuper and staff.

95. Item 112 of Schedule 1 inserts a new section 49 in the MSB Act, which overrides the exemption to disallowance provided for under section 44 of the Legislative Instruments Act for instruments that amend the Trust Deed. This is to align the MSB with the PSS. CSC will be responsible for both schemes.

96. Item 113 of Schedule 1 inserts a new paragraph 51(aa) in the MSB Act to allow the Minister to delegate his or her powers to a director of the Board. This amendment is consequential on the abolition of the MSB Board and the establishment of CSC as the responsible trustee for the MSB.

97.Paragraph 51(c) of the MSB Act allows the Minister to delegate his or her powers to the Commissioner and the staff assisting him or her. Item 114 of Schedule 1 repeals and substitutes a new paragraph 51(c) as a consequence of the abolition of the position of Commissioner for Superannuation and replacement with the position of CEO of ComSuper.

National Blood Authority Act 2003 (NBA Act)

Items 115 to 118 - Transfer of functions to CSC

98. Item 115 of Schedule 1 inserts a definition of "CSC" in section 3 of the NBA Act by reference to the definition in the Governance Bill.

99. Items 116 to 118 of Schedule 1 update references to the Board in section 35 of the NBA Act to reflect the establishment of CSC as the responsible trustee.

Native Title Act 1993 ( NT Act )

Items 119 to 122 - Transfer of functions to CSC

100. Items 119 and 120 of Schedule 1 update references to the Board in sections 104 and 119 of the NT Act to reflect the establishment of CSC as the responsible trustee.

101.Section 222 of the NT Act is a list of the definitions, and their location, contained in Part 15 of that Act. Item 121 of Schedule 1 inserts an entry into the list for the definition of "CSC" that is inserted by item 122 of Schedule 1.

102. Item 122 of Schedule 1 inserts a definition of "CSC" in section 253 of the NT Act by reference to the definition in the Governance Bill.

Ombudsman Act 1976 ( Ombudsman Act )

Items 123 and 124 - Transfer of functions to CSC

103. Item 123 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the Ombudsman Act by reference to the definition in the Governance Bill.

104. Item 124 of Schedule 1 updates references to the Board in section 28B of the Ombudsman Act to reflect the establishment of CSC as the responsible trustee.

Papua New Guinea ( Staffing Assistance ) Act 1973 ( PNG Act )

Items 125 to 147 - Transfer of functions to CSC

105. Item 125 of Schedule 1 repeals the definition of Commissioner in subsection 3(1) of the PNG Act. As the position of the Commissioner will be abolished, and CSC will be responsible for the PNG, this provision is no longer required.

106. Item 126 of Schedule 1 inserts a definition of CSC in subsection 3(1) of the PNG Act by reference to the definition in the Governance Bill.

107. Item 127 of Schedule 1 inserts a definition of "decision" in subsection 3(1) of the PNG Act. This has the same meaning as in the AAT Act. This definition was formerly contained in subsection 54(1) of the PNG Act and is repealed by item 132 of Schedule 1.

108. Item 128 of Schedule 1 inserts a definition of "decision of CSC" in subsection 3(1) of the PNG Act to mean decisions both of CSC or a delegate of CSC made under the PNG Act. This definition replaces a definition of "decision of the Commissioner" that was formerly contained in subsection 54(1) of the PNG Act and is repealed by item 132 of Schedule 1. This amendment is a consequence of transferring responsibility for the PNG from the Commissioner to CSC. The term "decision of CSC" also includes decisions under the regulations. This will remove the need for a similar review framework as in the PNG Act to be set up in the regulations.

109. Item 129 of Schedule 1 inserts a definition of "Reconsideration Advisory Committee" in subsection 3(1) of the PNG Act to refer to a Committee established under the new section 55 of the PNG Act, as inserted by item 138 of Schedule 1.

110. Item 130 of Schedule 1 repeals Part IV of the PNG Act. This Part vested responsibility for the general administration of Part V in the Commissioner for Superannuation, and required the Commissioner to provide an annual report to the Minister for Finance. The Governance Bill provides that CSC is responsible for administering the PNG and will be required to report to the Minister. Therefore, this Part is no longer required.

111. Item 131 of Schedule 1 inserts a heading for a new Division 1 in Part IX of the PNG Act to reflect the establishment of CSC as the responsible trustee and the review structure for decisions of CSC in relation to the PNG.

112. Item 132 of Schedule 1 repeals subsection 54(1) of the PNG Act, as the definitions contained in this subsection have been inserted into subsection 3(1) of the PNG Act by items 127 and 128 of Schedule 1.

113. Items 133 and 135 of Schedule 1 replace references to the Commissioner with references to CSC in section 54 of the PNG Act. This reflects the abolition of the position of Commissioner and CSC taking on the relevant responsibilities of the Commissioner.

114.Subsection 54(4) of the PNG Act currently requires the Commissioner to reconsider any request received by him or her. As a consequence of CSC becoming the responsible trustee, item 134 of Schedule 1 replaces subsection 54(4) to provide for a review structure for decisions of CSC.

115.New subsection 54(4) requires CSC, upon receiving a request for reconsideration of a decision, to refer the decision to a Reconsideration Advisory Committee for a recommendation or reconsideration of the decision, or to review the decision itself.

116.New subsection 54(4A) allows CSC to confirm, vary, or replace a decision that it reconsiders.

117. Item 136 of Schedule 1 amends subsection 54(5) of the PNG Act to remove the gender specific reference - "his reconsideration" - and replaces it with a reference appropriate to CSC.

118.Subsection 54(6) of the PNG Act currently provides for reviews of reconsidered decisions by the Administrative Appeals Tribunal. Subsection 54(6) of the PNG Act is repealed by item 137 of Schedule 1 and replaced by the new Division 3 of Part IX inserted by item 138 of Schedule 1.

119. Item 138 of Schedule 1 inserts new provisions into the PNG Act in relation to Reconsideration Advisory Committees, and sets out certain requirements in relation to the functions and operation of those Committees. As a result of CSC becoming responsible for administering the PNG, it may be appropriate for decisions of CSC to be subject to reconsideration to provide further consistency with the other superannuation schemes for which CSC will be responsible for administering.

120.New section 55 provides that CSC may establish such Reconsideration Advisory Committees as CSC considers necessary. This provides flexibility to CSC to establish Committees that it considers appropriate.

121.New section 55A provides that a Committee comprises such persons as CSC determines. This provides CSC with the flexibility to form Committees that comprise persons with appropriate skills and experience.

122.New section 55B sets out the functions of a Committee. These functions are to review any decision referred to it under the PNG Act and:

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exercise powers delegated to it by CSC in relation to the decision

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if no powers have been delegated to the Committee by CSC in relation to the decision, to make recommendations to CSC in relation to the decision.

123.The Committee must take into account any evidence relevant to the decision that is submitted to it and may take steps to obtain other evidence that it considers necessary for a proper review of the decision.

124.New subsection 55C(1) provides that the Committee may regulate its proceedings as it thinks fit, subject to any directions given by CSC. New subsection 55C(2) clarifies that if a direction by CSC is given in writing, it is not a legislative instrument for the purposes of the Legislative Instruments Act because it is administrative in character. It does not determine or alter the content of the law. The provision is included to assist readers and is merely declaratory.

125.New section 55D provides that any matter or thing done, or omitted to be done, in good faith by a member of a Committee in the performance of functions under this Act does not subject him or her to any action, liability, claim or demand. The purpose of this provision is to direct any action, liability, claim or demand related to CSC to CSC rather than a member of a Committee in the performance of functions under the PNG Act. Clause 35 of the Governance Bill provides that any money payable by CSC in respect of an action, liability, claim or demand that relates to the PNG Act or regulations made under the PNG Act is to be paid out of the CRF.

126.New section 55E establishes the remuneration and allowances for members of a Committee. Members are to be paid remuneration determined by the Remuneration Tribunal. Where there is no operative determination by the Remuneration Tribunal, Committee members are to be paid such remuneration as is prescribed by regulation. Members are also to be paid such allowances as are prescribed by regulation. The provision has effect subject to the Remuneration Tribunal Act 1973 .

127.New section 55F relates to cases where a Committee makes recommendations to CSC in relation to decisions referred to that Committee. CSC is to take into account the recommendations of the Committee and any other matter that it considers relevant as part of its considerations. CSC's decision is to be recorded in writing. The written decision must include reasons for the decision and a copy is to be made available to the applicant.

128.New section 55G provides for review of decisions that have been reconsidered by CSC or a Committee by the Administrative Appeals Tribunal. This was previously provided for under subsection 54(6) of the PNG Act.

129.New section 55H requires CSC to provide the Minister such information relating to the general administration and operation of the PNG Act that he or she requires, to the extent that it deals with superannuation, upon request.

130. Items 139 and 140, and items 142 to 145 of Schedule 1 update references to the Commissioner in sections 56 and 61 of the PNG Act to reflect the establishment of CSC as the responsible trustee.

131. Item 141 of Schedule 1 repeals section 57 of the PNG Act, which provided for the Commissioner to recover any arrears of contributions. As the provision is inoperative and the position of the Commissioner is abolished, this provision is no longer required.

132. Items 146 and 147 of Schedule 1 amend section 64 of the PNG Act to remove the ability for the Commissioner to delegate powers and functions under the PNG Act and associated conditions regarding such delegations, as a consequence of the Commissioner no longer being responsible for administration of the PNG Act. The Governance Bill provides CSC with the ability to delegate its powers in relation to the PNG Act.

Parliamentary Contributory Superannuation Act 1948 (PCS Act)

Items 148 to 151 - Transfer of functions to CSC

133. Item 148 of Schedule 1 inserts a definition of "CSC" in subsection 4(1) of the PCS Act by reference to the definition in the Governance Bill.

134. Items 149 to 151 of Schedule 1 update references to the Board in sections 16A and 22Q of the PCS Act to reflect the establishment of CSC as the responsible trustee.

Productivity Commission Act 1998 (PC Act)

Items 152 and 153 - Transfer of functions to CSC

135. Item 152 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the PC Act by reference to the definition in the Governance Bill.

136. Item 153 of Schedule 1 updates references to the Board in section 37 of the PC Act to reflect the establishment of CSC as the responsible trustee.

Renewable Energy (Electricity) Act 2000 (REE Act)

Items 154 to 157 - Transfer of functions to CSC

137. Item 154 of Schedule 1 inserts a definition of "CSC" in subsection 5(1) of the REE Act by reference to the definition in the Governance Bill.

138. Items 155 to 157 of Schedule 1 update references to the Board in section 147 of the REE Act to reflect the establishment of CSC as the responsible trustee.

Social Security ( Administration ) Act 1999 ( SSA Act )

Items 158 and 159 - Transfer of functions to CSC

139. Item 158 of Schedule 1 inserts a definition of "CSC" in subclause 1(1) of Schedule 1 to the SSA Act by reference to the definition in the Governance Bill.

140. Item 159 of Schedule 1 updates references to the Board in clause 17 of Schedule 3 to the SSA Act to reflect the establishment of CSC as the responsible trustee.

Superannuation Act 1922 (1922 Act)

Items 160 to 173 - Transfer of functions to CSC

141. Item 160 of Schedule 1 inserts a new section 3 in the 1922 Act which provides that for the purposes of applying this Act on or after 1 July 2011, any reference to the Board, the Commissioner or the Commissioner for Superannuation is, unless the context requires otherwise, taken to be a reference to CSC. The Governance Bill provides that CSC is responsible for administering the scheme established by the 1922 Act. As the position of the Commissioner will be abolished, he or she will no longer carry out this role. However, certain references, for example, those which refer to things done by the Commissioner in the past, may need to continue to be read as a reference to the Commissioner, which is permitted by this provision.

142.An example of the application of the new section 3 is its application to section 48AB of the 1922 Act, which provides for the payment of reversionary superannuation pensions in certain circumstances, dependent on the decision of the Commissioner. As these payments may still be applicable to certain persons, the new section 3 allows the references to the Commissioner in section 48AB of the 1922 Act to be read as references to CSC. This allows CSC to grant payments under section 48AB of the 1922 Act in the same manner as was previously at the decision of the Commissioner.

143. Item 161 of Schedule 1 inserts a definition of "Commissioner" in subsection 4(1) of the 1922 Act by reference to the definition in the 1976 Act, which refers to the position of Commissioner that existed prior to its abolition.

144. Item 162 of Schedule 1 inserts a definition of "Commissioner for Superannuation" in subsection 4(1) of the 1922 Act to have the same meaning as "Commissioner" in the 1922 Act. This definition is inserted to maintain the instances where the term "Commissioner for Superannuation" is used in the 1922 Act.

145. Item 163 of Schedule 1 inserts a definition of "CSC" in subsection 4(1) of the 1922 Act by reference to the definition in the Governance Bill.

146. Item 164 of Schedule 1 inserts a definition of "decision" in subsection 4(1) of the 1922 Act. This has the same meaning as in the AAT Act. A definition of "decision" encompassing decisions under the 1922 Act was formerly contained in section 154 of the 1976 Act which is being repealed by item 193 of Schedule 1.

147. Item 165 of Schedule 1 inserts a definition of "decision of CSC" in subsection 4(1) of the 1922 Act to mean a decision of CSC or a delegate of CSC. This definition replaces a definition of "decision of the Commissioner" that was formerly contained in subsection 154(1) of the 1976 Act which is being repealed by item 193 of Schedule 1. This is consequential on CSC taking over responsibility for the 1922 Act.

148. Item 166 of Schedule 1 inserts a definition of "Reconsideration Advisory Committee" in subsection 4(1) of the 1922 Act to refer to a Committee established under the new section 128 of the 1922 Act, as inserted by item 169 of Schedule 1.

149. Item 167 of Schedule 1 repeals the definition of "The Commissioner" or "The Commissioner for Superannuation" in subsection 4(1) of the 1922 Act as a consequence of items 161 and 162 of Schedule 1.

150. Item 168 of Schedule 1 repeals subsection 119WA(19) of the 1922 Act. This provision is no longer required as its purpose was to clarify the interaction of section 119WA with section 154 of the 1976 Act. As section 154 is being repealed by item 193 of Schedule 1, this subsection is no longer required.

151. Item 169 of Schedule 1 inserts new provisions into the 1922 Act in relation to Reconsideration Advisory Committees, and sets out certain requirements in relation to the functions and operation of those Committees. As a result of CSC becoming responsible for administering the 1922 scheme, it is appropriate for decisions of CSC to be subject to reconsideration to provide further consistency with the other superannuation schemes for which CSC will be responsible.

152.New subsections 127(1), (2) and (3) allow for a person affected by a reviewable decision who is dissatisfied with the decision to request CSC to reconsider it. The person must make the request to CSC in writing, and within 30 days of being notified of the decision, or within such further period as CSC allows. The request must set out the reasons for making the request.

153.New subsection 127(4) requires CSC, upon receiving a request for reconsideration of a decision, to refer the decision to a Reconsideration Advisory Committee for a recommendation or reconsideration of the decision, or to review the decision itself.

154.New subsection 127(5) allows CSC to confirm, vary, or replace a decision that it reconsiders.

155.New subsection 127(6) requires CSC to inform a person, in writing, of the result, and reasons for the result, of any reconsideration of a decision.

156.New section 128 provides that CSC may establish such Reconsideration Advisory Committees as CSC considers necessary. This provides flexibility to CSC to establish Committees that it considers appropriate.

157.New section 129 provides that a Committee comprises such persons as CSC determines. This provides CSC with the flexibility to form Committees that comprise persons with appropriate skills and experience.

158.New section 130 sets out the functions of a Committee. These functions are to review any decision referred to it under the new Part XIA of the 1922 Act, as inserted by item 169 of Schedule 1 and:

•

exercise powers delegated to it by CSC in relation the decision

•

if no powers have been delegated to the Committee by CSC in relation to the decision, to make recommendations to CSC in relation to the decision.

159.The Committee must take into account any evidence relevant to the decision that is submitted to it and may take steps to obtain other evidence that it considers necessary for a proper review of the decision.

160.New subsection 131(1) provides that the Committee may regulate its proceedings as it thinks fit, subject to any directions given by CSC. New subsection 131(2) clarifies that if a direction by CSC is given in writing, it is not a legislative instrument for the purposes of the Legislative Instruments Act because it is administrative in character. It does not determine or alter the content of the law. The provision is included to assist readers and is merely declaratory.

161.New section 132 provides that any matter or thing done, or omitted to be done, in good faith by a member of a Committee in the performance of functions under this Act does not subject him or her to any action, liability, claim or demand. The purpose of this provision is to direct any action, liability, claim or demand related to CSC, to CSC rather than a member of a Committee in the performance of functions under the 1922 Act. Clause 35 of the Governance Bill provides that any money payable by CSC in respect of an action, liability, claim or demand that relates to an Act that it administers, regulations made under such an Act, or a governing deed, is to be paid out of the CRF.

162.New section 133 establishes the remuneration and allowances for members of a Committee. Members are to be paid remuneration determined by the Remuneration Tribunal. Where there is no operative determination by the Remuneration Tribunal, Committee members are to be paid such remuneration as is prescribed by regulation. Members are also to be paid such allowances as are prescribed by regulation. The provision has effect subject to the Remuneration Tribunal Act 1973 .

163.New section 133A relates to cases where a Committee makes recommendations to CSC in relation to decisions referred to the Committee. CSC is to take into account the recommendations of the Committee and any other matter that it considers relevant as part of its considerations. CSC's decision is to be recorded in writing. The written decision must include reasons for the decision and a copy is to be made available to the applicant.

164.New section 133B provides for review of decisions that have been reconsidered by CSC or a Committee by the Administrative Appeals Tribunal. This will ensure that decisions can continue to be reviewed by the Administrative Appeals Tribunal. This was previously provided for under section 154 of the 1976 Act which is being repealed by item 193 of Schedule 1.

165. Item 170 of Schedule 1 inserts a new section 133C in the 1922 Act which requires CSC to maintain proper records in respect of benefits paid under the 1922 Act.

166. Item 171 of Schedule 1 inserts new sections 149AA and 149AB in the 1922 Act. New sections 149AA and 149AB provide for CSC to give the Minister such information relating to the general administration of the 1922 Act as the Minister may require from time to time, and provide for certain amounts to be paid to CSC where a false statement has been made. These provisions are currently in sections 163 and 167 of the 1976 Act, but are being repealed and inserted into the 1922 Act, with references to be to CSC rather than the Board or Commissioner. This will allow the provisions relating to the 1922 Act to be more easily indentified from within that Act.

167. Items 172 and 173 of Schedule 1 make consequential changes to section 149B of the 1922 Act as a result of CSC taking over responsibility for that Act. These amendments will ensure that Part XII of the 1922 Act will continue to operate as intended.

Superannuation Act 1976

Items 174, 176 to 178, 180, 182 and 183 - Abolition of position of Commissioner for Superannuation

168. Item 174 of Schedule 1 amends the definition of "Commissioner" in subsection 3(1) of the 1976 Act to reflect the abolition of the position. The amendment refers to the position of Commissioner as it existed prior to abolition.

169. Item 176 of Schedule 1 amends the definition of "eligible employee" in subsection 3(1) of the 1976 Act by adding the conjunction "and" to the end of paragraphs (a) to (ec). This amendment clarifies the structure of the definition and does not change the effect of the definition.

170. Item 177 of Schedule 1 amends the definition of "eligible employee" in subsection 3(1) of the 1976 Act as a consequence of item 178 of Schedule 1.

171. Item 178 of Schedule 1 repeals paragraph (g) of the definition of "eligible employee" in subsection 3(1) of the 1976 Act. It is not necessary to specifically refer to the position of Commissioner for Superannuation, or in the future, the CEO of ComSuper, as these positions are a statutory office and come within the provisions of the definition relating to the holder of a statutory office.

172. Item 180 of Schedule 1 removes a reference to the Commissioner in subparagraph 4B(c)(iii) of the 1976 Act. It is not necessary to specifically refer to the position of Commissioner for Superannuation, or in the future, the CEO of ComSuper, as these positions are a statutory office and already come within the subparagraph.

173. Item 182 of Schedule 1 amends subsection 15A(2) of the 1976 Act to remove a reference to the Commissioner and restructures the provision.

174.Part II of the 1976 Act establishes the position of Commissioner for Superannuation and sets out certain entitlements, responsibilities, powers and functions of the position. It also provides for the staff required to assist the Commissioner to perform his or her functions.

175. Item 183 of Schedule 1 repeals Part II of the 1976 Act consequential on the abolition of the position of Commissioner, replacement of that position with a position of CEO of ComSuper and moving the governance framework for ComSuper (including staff) to the Comsuper Bill. Staff employed to assist the CEO of ComSuper will still be employed under the Public Service Act 1999 - see clause 19 of the ComSuper Bill.

Items 175, 179, 184 to 196, and 198 to 205 - Transfer of functions to CSC

176. Item 175 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the 1976 Act by reference to the definition in the Governance Bill.

177. Item 179 of Schedule 1 adds a note to the end of the definition of "Fund or Superannuation Fund" in subsection 3(1) of the 1976 Act to reflect the vesting the CSS Fund in CSC from 1 July 2011. This is consequential on the establishment of CSC as the responsible trustee under the 1976 Act.

178. Item 184 of Schedule 1 removes a reference to section 154 of the 1976 Act consequential on that section being repealed by item 193 of Schedule 1.

179.Subsection 27C(1) of the 1976 Act sets out the functions of the Board. Item 185 of Schedule 1 adds a note to the end of this subsection to reflect the establishment of CSC as the responsible trustee. The note refers to other functions of CSC in section 8 of the Governance Bill. Subitem 247(2) will change the reference to the Board to CSC.

180. Item 186 of Schedule 1 repeals sections 27Q and 27R of the 1976 Act consequential on the establishment of CSC as the responsible trustee. The repealed sections provide for Board delegations and the indemnification of trustees. Indemnification of directors of the CSC Board and delegation by CSC are provided for by clauses 35 and 36 respectively of the Governance Bill. Saving provisions in relation to the current delegations are provided for by item 22 of Schedule 2.

181. Item 187 of Schedule 1 amends subsection 42(5) of the 1976 Act. Item 188 of Schedule 1 repeals subsection 42(5A) and (5B) of the 1976 Act. Taxation matters are provided for by clauses 32 and 33 of the Governance Bill.

182. Item 189 of Schedule 1 repeals sections 44 and 44A of the 1976 Act consequential on the establishment of CSC as the responsible trustee under the 1976 Act. The repealed sections provided for the keeping of accounting records and annual audits by the Auditor-General. The requirement for CSC to keep accounting records and provision for the audit of the financial statements by the Auditor-General are provided for by clauses 29 and 30 respectively of the Governance Bill.

183.Subsection 74(11) of the 1976 Act clarifies the interaction between sections 74 and 154 of that Act. Section 154 of the 1976 Act currently provides for the reconsideration of certain decisions of the Commissioner made under the 1922 Act, 1976 Act and regulations under those Acts. Consequential on the establishment of CSC as the responsible trustee for the 1922 scheme, reconsideration of these decisions is provided for under the new Part XIA of the 1922 Act inserted by item 169 of Schedule 1. Item 190 of Schedule 1 replaces subsection 74(11) of the 1976 Act to refer to the new Part XIA of the 1922 Act instead of section 154 of the 1976 Act, which is repealed by item 193 of Schedule 1.

184. Item 191 of Schedule 1 amends paragraph 135(1A)(d) of the 1976 Act. Item 192 of Schedule 1 amends paragraphs 136(2A)(d) and (2F)(d) of the 1976 Act. These amendments delete references to the Commissioner as transfer values are payable to CSC. Subitem 247(2) of Schedule 1 will change the references to the Board to CSC to allow any future transfer values to be paid to CSC.

185.Section 154 of the 1976 Act currently provides for the reconsideration of certain decisions of the Commissioner made under the 1922 Act, 1976 Act and regulations under those Acts. Item 193 of Schedule 1 repeals section 154 of the 1976 Act consequential on the abolition of the position of Commissioner and the establishment of CSC as the responsible trustee for the 1922 scheme. Reconsideration of decisions made under the 1922 Act will now be provided for under the new Part XIA of the 1922 Act inserted by item 169 of Schedule 1.

186. Item 194 of Schedule 1 deletes the references to the Commissioner in subsection 56A(1) of the 1976 Act as contributions are paid to the Board rather than the Commissioner. Subitem 247(2) of Schedule 1 will change the references to the Board to CSC.

187. Item 195 of Schedule 1 repeals sections 161, 161A and 162 of the 1976 Act. These relate to the provision of annual reports in respect of the CSS and the 1922 scheme. Clause 30 of the Governance Bill provides for annual reporting for CSC, including in relation to the CSS and the 1922 scheme.

188. Item 196 of Schedule 1 repeals subsection 163(1) of the 1976 Act. This relates to provision of information to the Minister in relation to the general administration and operation of the 1922 Act. New section 149AA of the 1922 Act, as inserted by item 171 of Schedule 1, provides for the provision of information to the Minister in relation to the 1922 Act.

189. Item 198 of Schedule 1 amends subsection 163A(7) of the 1976 Act as a consequence of the abolition of the position of Commissioner.

190. Item 199 of Schedule 1 repeals section 163B of the 1976 Act as it is considered that the power to correct clerical errors would come within the functions of CSC.

191. Item 200 of Schedule 1 amends section 164 of the 1976 Act to replace the reference to "the Commissioner or the Board" with a reference to CSC as a result of the abolition of the position of Commissioner for Superannuation. Section 164 provides for a direction, determination or declaration to be in writing. Any directions, determinations or declarations made under the 1976 Act would be made by either the Minister, as currently provided for, or CSC.

192. Item 201 of Schedule 1 repeals paragraphs 165(b), (c) and (d) of the 1976 Act and replaces them with new paragraphs. New paragraphs 165(b), (c) and (d) will allow the Minister to delegate his or her powers to a director of CSC, the CEO of ComSuper or a staff member of ComSuper. The amendment is consequential on the establishment of CSC as the responsible trustee and the abolition of the position of Commissioner for Superannuation and replacement with the position of CEO of ComSuper.

193. Item 202 of Schedule 1 repeals and substitutes subsection 167(3) of the 1976 Act. Item 203 of Schedule 1 amends subsection 167(4) of the 1976 Act to omit the reference to the Commissioner. Item 204 of Schedule 1 repeals subsection 167(5) of the 1976 Act. Section 167 of the 1976 Act relates to making false statements in relation to both the CSS and the 1922 scheme. These amendments are consequential on moving the current provisions of the subsection relating to the 1922 scheme to the 1922 Act and the transfer of responsibility for the 1922 scheme from the Commissioner to CSC. New section 149AB of the 1922 Act, as being inserted by item 171 of Schedule 1, deals with false statements in respect of the 1922 scheme.

194. Item 205 of Schedule 1 amends paragraph 168(14)(b) as a consequence of the repeal of section 154 of the 1976 Act by item 193 of Schedule 1.

Items 181, 197 and 206 - Technical amendments

195. Item 181 of Schedule 1 is a technical amendment to omit "(1)" from section 15 of the 1976 Act, as there are no subsections.

196. Item 197 of Schedule 1 is a technical amendment to omit "(3)" from section 163 of the 1976 Act, as, because of item 196, there will be no subsections.

197. Item 206 of Schedule 1 is a technical amendment to omit "(1)" from section 240 of the 1976 Act, as there are no subsections.

Superannuation Act 1990

Items 207 to 214 and 216 to 221 - Transfer of functions to CSC and abolition of the position of Commissioner for Superannuation

198. Item 207 of Schedule 1 amends the definition of "Board" in section 3 of the 1990 Act as a consequence of the abolition of the Board, as it previously existed, by item 216 of Schedule 1. The definition is updated to refer to the Board that existed prior to its abolition.

199. Item 208 of Schedule 1 repeals the definition of "Chairperson" in section 3 of the 1990 Act to reflect the abolition of the Board as it previously existed.

200. Item 209 of Schedule 1 repeals the definition of "Commissioner" in section 3 of the 1990 Act to reflect the abolition of the position of Commissioner for Superannuation.

201. Item 210 of Schedule 1 inserts a definition of "CSC" in section 3 of the 1990 Act by reference to the definition in the Governance Bill.

202. Item 211 of Schedule 1 adds a note at the end of the definition of "PSS Fund" in section 3 of the 1990 Act to reflect the establishment of CSC as the responsible trustee.

203. Item 212 of Schedule 1 repeals the definition of "trustee" in section 3 of the 1990 Act to reflect the abolition of the Board as it previously existed.

204. Item 213 of Schedule 1 repeals subsection 5(1AA) to reflect the governance arrangements of the Board being set out in the Governance Bill.

205. Item 214 of Schedule 1 repeals paragraph 6(1)(b) of the 1990 Act. It is not necessary to specifically refer to the Commissioner or the CEO of ComSuper as these positions are statutory offices which would be covered by other provisions of section 6 of the 1990 Act.

206. Item 216 of Schedule 1 repeals Parts 6 and 7 of the 1990 Act. Part 6 establishes the Board, and Part 7 defines the Commissioner for Superannuation's functions under the 1990 Act. These amendments are consequential on abolishing the Board, as it previously existed, and abolishing the position of Commissioner for Superannuation, replacing the position with a new CEO position and moving ComSuper's governance from the 1976 Act to the ComSuper Bill. The CEO of ComSuper will have the same responsibilities in relation to administration of the PSS as the Commissioner for Superannuation currently does.

207.Item 216 also provides that CSC's functions and powers are those set out in the Trust Deed and that CSC is also responsible for the general administration of the 1990 Act.

208. Item 217 of Schedule 1 repeals and substitutes subsection 43(1) of the 1990 Act. Indemnification of a member of a Reconsideration Advisory Committee will continue to be provided for under the 1990 Act. However, indemnification of other persons currently listed in subsection 43(1) of the 1990 Act is to be provided for either in the Governance Bill or the ComSuper Bill.

209. Item 218 of Schedule 1 adds a note to the end of subsection 43(2) of the 1990 Act to refer the reader to clause 35 of the Governance Bill. Item 219 of Schedule 1 repeals subsections 43(3) and (4) of the 1990 Act. Clause 35 of the Governance Bill provides that any money payable by CSC in respect of an action, liability, claim or demand that relates to the 1990 Act, regulations made under the 1990 Act, or PSS governing deed, is to be paid out of the PSS Fund. The amount will be reimbursed to the PSS Fund from the CRF.

210. Item 220 of Schedule 1 inserts a new paragraph 47(aa) in the 1990 Act to allow the Minister to delegate his or her powers to a director of CSC. This amendment is consequential on the establishment of CSC.

211.Paragraph 47(c) of the 1990 Act allows the Minister to delegate his or her powers to the Commissioner and the staff assisting him or her. Item 221 of Schedule 1 repeals and substitutes a new paragraph 47(c) as a consequence of the abolition of position of Commissioner for Superannuation and replacement with the position of CEO of ComSuper.

Item 215 - Membership of the PSS

212. Item 215 of Schedule 1 amends paragraph 6B(1)(a) of the 1990 Act. This amendment is consequential on the amendments being made to the 2005 Act by items 223 and 229 of Schedule 1. Section 6B of the 1990 Act allows a PSS member who is making member contributions to make an election to leave the PSS in certain circumstances.

213.A member can elect to leave the PSS under paragraph 6B(1)(a) of the 1990 Act and join the PSSAP. Currently, on leaving the PSS, the person's employer would no longer be required to make mandatory employer contributions to the PSS in respect of the person but instead would make future employer contributions to the PSSAP. On joining the PSSAP, the person becomes an ordinary employer-sponsored member of the PSSAP which is currently the only class of contributory member in the PSSAP.

214.Items 223 and 229 of Schedule 1 make provision for a PSS member to become a member of the PSSAP and continue to receive their mandatory employer contributions under the PSS (rather than the PSSAP). Such PSS members would only become a member of the PSSAP for the purpose of certain contributions, for example, for the purpose of voluntary salary sacrifice contributions. This is achieved by creating a new class of contributory member in the PSSAP, called an "Australian government superannuation scheme member of the PSSAP".

215.As such it is necessary to restrict those members of the PSS who can elect to leave the PSS and receive mandatory employer contributions in the PSSAP to a person who is able to become an ordinary employer-sponsored member of the PSSAP. Persons prescribed by item 223 of Schedule 1 (that is, an Australian government superannuation scheme member) are precluded from being an ordinary employer-sponsored member of the PSSAP.

Superannuation Act 2005

Items 222, 223, 225, and 228 to 231 - Providing flexibility to allow CSS and PSS members to consolidate their superannuation savings under the management of CSC

216.PSS and CSS members cannot make contributions nor have superannuation amounts paid to the PSSAP in respect of them. For example, currently PSS and CSS members who wish to have voluntary employer contributions (for example, salary sacrifice contributions) paid in respect of them are unable to have these contributions made to the PSS, the CSS or PSSAP. Also, former PSS and CSS members who receive lump sum benefits from either the PSS or the CSS respectively are unable to move those funds to the PSSAP. This is because these persons are not eligible to become a member of the PSSAP under section 13 of the 2005 Act. A consequence of this restriction is that these persons would be unable to consolidate their superannuation savings under the management of one trustee, being CSC, if they chose to do so.

217.Items 222, 223, 225, 228, 229, 230 and 231 of Schedule 1 provide flexibility within the 2005 Act to facilitate any decision, if made in the future, to allow such consolidation within the Australian Government civilian superannuation schemes.

218. Item 222 of Schedule 1 is a technical amendment to insert "(1)" into section 4 of the 2005 Act as a consequence of item 228 of Schedule 1, which adds new subsections 4(2) and (3) to section 4 of the 2005 Act.

219. Item 223 of Schedule 1 inserts a definition of "Australian government superannuation scheme member" in section 4 of the 2005 Act. There are two requirements for a person to be an "Australian government superannuation scheme member". The first requirement is that a person has to be either a member of the PSS or an eligible employee (within the meaning of the 1976 Act). The second requirement is that the Minister has made a declaration that such a person is an "Australian government superannuation scheme member".

220.Where a person is an "Australian government superannuation scheme member" they will be eligible to become a member of the PSSAP as a result of the changes being made to subsection 13(1) of the 2005 Act by item 229 of Schedule 1.

221. Item 225 of Schedule 1 inserts a definition of "former Australian government superannuation scheme member" in section 4 of the 2005 Act. There are two requirements for a person to be a "former Australian government superannuation scheme member". The first requirement is that a person has to be either a former member of the PSS who has preserved benefits in the PSS or a person who has preserved benefits in the CSS. The second requirement is that the Minister has made a declaration that such a person is a "former Australian government superannuation scheme member".

222.Where a person is a "former Australian government superannuation scheme member" they will be eligible to become a member of the PSSAP as a result of the changes being made to subsection 13(1) of the 2005 Act by item 229 of Schedule 1.

223. Item 228 of Schedule 1 amends section 4 of the 2005 Act to provide that a declaration made for the purposes of the definition of "Australian government superannuation scheme member" or "former Australian government superannuation scheme member" is a legislative instrument for the purposes of the Legislative Instruments Act. Item 228 of Schedule 1 specifically provides that such a declaration is subject to disallowance by the Parliament under section 42 of the Legislative Instruments Act. As a consequence, item 39 of the table under section 44 of the Legislative Instruments Act, which exempts superannuation legislative instruments (other than regulations) from the disallowance process, does not apply.

224. Item 229 of Schedule 1 repeals and substitutes a new subsection 13(1) of the 2005 Act. Subsection 13(1) of the 2005 Act sets out the circumstances where a person is eligible to become a member of the PSSAP subject to subsections 13(2) and (3) of the 2005 Act. They are where a person is:

•

a public sector employee as defined in section 5 of the 2005 Act

•

any person declared by the Minister is writing.

225.Subsections 13(2) and (3) of the 2005 Act provide that certain persons are not eligible to be members of the PSSAP even though they would come within subsection 13(1) of the 2005 Act.

226.New paragraph 13(1)(a) replicates the current subsection 13(1) of the 2005 Act and is still subject to subsections 13(2) and (3) of the 2005 Act. New paragraphs 13(1)(b) and (c) set out two additional circumstances where a person is eligible to become a PSSAP member subject to subsection 13(3) of the 2005 Act. These are where the person comes within the definition of either "Australian government superannuation scheme member" or "former Australian government superannuation scheme member". Subsection 13(3) provides that a person is not eligible to become a member of the PSSAP before 1 July 2005.

227. Item 230 of Schedule 1 repeals and substitutes a new subsection 17(1) of the 2005 Act. Item 231 of Schedule 1 repeals and substitutes a new subsection 19(1) of the 2005 Act. Both subsection 17(1) and subsection 19(1) are contained in Part 4 of the 2005 Act. Part 4 of the 2005 Act describes when contributions payable under the Rules are payable in respect of a PSSAP member and who is the responsible employer for making those contributions.

228.New paragraph 17(1)(a) replicates current subsection 17(1) of the 2005 Act. New paragraph 17(1)(b) provides that section 17 also applies to an "Australian government superannuation scheme member" who has chosen to become a member of the PSSAP. An "Australian government superannuation scheme member" will be able to choose to become a member of the PSSAP in accordance with subsection 14(2) of the 2005 Act.

229.New paragraph 19(1)(a) replicates current subsection 19(1) of the 2005 Act. New paragraph 19(1)(b) of the 2005 Act provides that section 19 also applies to an "Australian government superannuation scheme member".

230.New paragraphs 17(1)(b) and 19(1)(b) are necessary because an "Australian government superannuation scheme member" is not able to become an ordinary employer-sponsored member. This is because they are not eligible to become a member of the PSSAP because of their employment or office. They therefore cannot come within the provisions of subsections 18(2), (3) and (5) of the 2005 Act that relate to the three situations in which a person is an ordinary employer-sponsored member of the PSSAP. They are eligible to become a member of the PSSAP only because they are an "Australian government superannuation scheme member".

Items 224, 226, 227, and 232 to 239 - Transfer of functions to CSC and abolition of the position of Commissioner for Superannuation

231. Item 224 of Schedule 1 inserts a definition of "CSC" in section 4 of the 2005 Act by reference to the definition in the Governance Bill.

232. Item 226 of Schedule 1 adds a note at the end of the definition of the "PSSAP Fund" in section 4 of the 2005 Act to reflect the establishment of CSC as the responsible trustee.

233. Item 227 of Schedule 1 repeals the definition of "trustee" in section 4 of the 2005 Act to reflect the abolition of the Board as it previously existed.

234. Item 232 of Schedule 1 repeals the heading to Division 1 of Part 5 of the 2005 Act to reflect CSC as the responsible trustee.

235. Item 233 of Schedule 1 repeals section 20 of the 2005 Act. Section 20 of the 2005 Act relates to the functions and responsibilities of the Board. This amendment is consequential on the abolition of the Board, as it previously existed, and CSC becoming the responsible trustee.

236.Item 233 also provides that CSC's functions and powers are those set out in the Trust Deed and that it is also responsible for the general administration of the 2005 Act.

237. Item 234 of Schedule 1 repeals sections 21, 22, 23, 24, 25, 26, 27 and 28 of the 2005 Act. The Governance Bill deals with these matters in relation to CSC.

238. Item 235 of Schedule 1 repeals subsection 29(1) of the 2005 Act and replaces it with a new subsection 29(1). Indemnification of a member of a Reconsideration Advisory Committee will continue to be provided for under the 2005 Act. However, indemnification of other persons currently listed in subsection 43(1) of the 1990 Act is to be provided for either in the Governance Bill or the ComSuper Bill.

239. Item 236 of Schedule 1 adds a note to the end of subsection 29(2) of the 2005 Act to refer the reader to clause 35 of the Governance Bill. Item 237 of Schedule 1 repeals subsections 29(3) and (4) of the 2005 Act. Clause 35 of the Governance Bill provides that any money payable by CSC in respect of an action, liability, claim or demand that relates to the 2005 Act, regulations made under the 2005 Act, or the PSSAP governing deed, is to be paid out of the PSSAP Fund. The amount will be reimbursed to the PSSAP Fund from the CRF.

240. Item 238 of Schedule 1 repeals Division 2 of Part 5 of the 2005 Act. Division 2 of Part 5 of the 2005 Act defined the Commissioner for Superannuation's functions under the 2005 Act. This amendment is consequential on the abolition of the position of Commissioner for Superannuation, replacing that position with a new CEO position and moving ComSuper's governance framework from the 1976 Act to the Comsuper Bill. The CEO of ComSuper will have the same responsibilities in relation to administration of the PSSAP as the existing office of Commissioner for Superannuation.

241. Item 239 of Schedule 1 repeals paragraphs 33(b) and (c) of the 2005 Act and replaces them with new paragraphs. New paragraphs 33(aa), (b) and (c) will allow the Minister to delegate his or her powers to a director of CSC, the CEO of ComSuper or a staff member of ComSuper. The amendment is consequential on the establishment of CSC as the responsible trustee and the abolition of the position of Commissioner for Superannuation and replacement with the position of CEO of ComSuper.

Superannuation (Productivity Benefit) Act 1988 (PB Act)

Items 240 to 242 - Transfer of functions to CSC

242. Item 240 of Schedule 1 repeals the definition of "Board" in subsection 3(1) of the PB Act as a consequence of CSC replacing the Board as the responsible trustee.

243. Item 241 of Schedule 1 inserts a definition of "CSC" in subsection 3(1) of the PB Act by reference to the definition in the Governance Bill.

244. Item 242 of Schedule 1 updates a reference to the Board in section 4EA of the PB Act to reflect the establishment of CSC as the responsible trustee.

Veterans' Entitlements Act 1986 (VE Act)

Items 243 to 245 - Transfer of functions to CSC

245. Item 243 of Schedule 1 inserts a definition of "CSC" in subsection 5Q(1) of the VE Act by reference to the definition in the Governance Bill.

246. Items 244 and 245 of Schedule 1 update references to the Board in sections 164 and 188 of the VE Act to reflect the establishment of CSC as the responsible trustee.

Part 2 - Amendments to change references to the Authority and the Board

Item 246 - Bulk amendments to references to the Authority

247. Item 246 of Schedule 1 replaces certain references to the Authority in the DFRDB Act with references to CSC. These amendments reflect the abolition of the DFRDB Authority and CSC taking over the Authority's role as the trustee responsible for the scheme established by the DFRDB Act.

Item 247 - Bulk amendments to references to the Board

248. Subitem 247(1) of Schedule 1 replaces certain references to the Board in the MSB Act with references to CSC. These amendments reflect the abolition of the MSB Board and CSC taking over the Board's role as the trustee responsible for the scheme established by the MSB Act.

249. Subitems 247(2 ), ( 3) and (4) of Schedule 1 replace certain references to the Board in the 1976 Act, the 1990 Act and the 2005 Act with references to CSC. These amendments reflect the establishment of CSC as the trustee responsible for the schemes under these Acts.