Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill. I ask leave of the House to move government amendments (1) to (27) on sheet CD233 and (1) to (9) on sheet ZA304, as circulated, together.

Leave granted.

I move government amendments (1) to (27) on sheet CD233 and (1) to (9) on sheet ZA304 together:

(1) Clause 2, page 2 (after table item 6), insert:

(2) Clause 2, page 2 (after table item 8), insert:

(3) Clause 2, page 2 (after proposed table item 8A), insert:

(4) Clause 2, page 3 (cell at table item 17, column 1), omit the cell, substitute:

(5) Clause 2, page 4 (after table item 19), insert:

(6) Clause 2, page 5 (after table item 29), insert:

(7) Schedule 1, page 9 (after line 17), after item 10, insert:

10A Paragraph 1017BA(1)(c)

  Repeal the paragraph, substitute:

  (c) that the information set out in each product dashboard about fees and other costs is updated within 14 days after the end of a period prescribed by the regulations; and

10B Subsection 1017BA(2)

  Repeal the subsection, substitute:

(2) The product dashboard for a MySuper product must set out:

  (a) the following, worked out in accordance with the regulations in relation to the period or periods prescribed by the regulations:

     (i) a return target or return targets for the product;

     (ii) a return or returns for the product;

     (iii) a comparison or comparisons between return targets and returns for the product;

     (iv) the level of investment risk that applies to the product;

     (v) a statement of fees and other costs in relation to the product; and

  (b) any other information prescribed by the regulations.

10C Subsection 1017BA(3)

  Repeal the subsection, substitute:

(3) Subject to subsection (4), the product dashboard for a choice product must set out:

  (a) the following for each investment option offered within the choice product, worked out in accordance with the regulations in relation to the period or periods prescribed by the regulations:

     (i) a return target or return targets for the investment option;

     (ii) a return or returns for the investment option;

     (iii) a comparison or comparisons between return targets and returns for the investment option;

     (iv) the level of investment risk that applies to the investment option;

     (v) a statement of fees and other costs in relation to the investment option; and

  (b) any other information prescribed by the regulations.

10D After subsection 1017BA(4)

  Insert:

  (4A) The regulations may prescribe circumstances in which assets of a regulated superannuation fund are, or are not, to be treated as invested in a single asset for the purposes of paragraph (4)(c).

10E Subsection 1017BA(5) (definition of quarter )

  Repeal the definition.

(8) Schedule 1, page 10 (after line 17), after item 12, insert:

12A Section 1540

  Omit "31 December 2013", substitute "30 June 2014".

(9) Schedule 1, page 10, after proposed item 12A, insert:

Fair Work Act 2009

12B Subsection 155A(2)

  Omit "FWA", substitute "the FWC".

12C Subsection 155A(3)

  Omit "FWA" (first occurring), substitute "The FWC".

12D Paragraph 155A(3)(a)

  Omit "FWA", substitute "the FWC".

12E Subsection 155A(4)

  Omit "FWA", substitute "the FWC".

12F Subsection 155A(5)

  Omit "FWA" (first occurring), substitute "The FWC".

12G Paragraph 155A(5)(a)

  Omit "FWA", substitute "the FWC".

(10) Schedule 1, page 10, after proposed item 12G, insert:

12H Clause 10 of Schedule 1 (heading)

  Omit "FWA", substitute "FWC".

12J Subclause 10(2) of Schedule 1

  Omit "FWA", substitute "The FWC".

(11) Schedule 1, page 10, after proposed item 12J, insert:

12K Clause 11 of Schedule 1 (heading)

  Omit "FWA", substitute "FWC".

12L Subclause 11(2) of Schedule 1

  Omit "FWA" (first occurring), substitute "The FWC".

12M Subclause 11(2) of Schedule 1

  Omit "FWA" (second occurring), substitute "the FWC".

12N Subclause 11(3) of Schedule 1

  Omit "FWA", substitute "The FWC".

(12) Schedule 1, page 10, after proposed item 12M, insert:

12P Clause 12 of Schedule 1

  Omit "FWA", substitute "the FWC".

(13) Schedule 1, page 14 (after line 15), after item 39, insert:

39A At the end of subsection 29TC(1)

  Add:

  ; and (j) no member who holds a beneficial interest of that class in the fund is precluded from holding a beneficial interest of another class in the fund because of that fact; and

(k) no member is precluded from holding a beneficial interest of that class in the fund because the member holds a beneficial interest of another class in the fund.

(14) Schedule 1, page 14 (after line 20), after item 41, insert:

41A Subsection 29U(4)

  Omit "Fair Work Australia", substitute "the Fair Work Commission".

(15) Schedule 1, page 14, after proposed item 41A, insert:

41B Subsection 29VA(8)

  Repeal the subsection, substitute:

Administration fee exemption for employees of an employer -sponsor

(8) This rule is satisfied if:

  (a) the fee is an administration fee charged in relation to one or more members of the fund who hold the MySuper product in accordance with the administration fee exemption for employees of an employee-sponsor (see section 29VB); and

  (b) in relation to those members of the fund who hold the MySuper product but in relation to whom the administration fee is not charged in accordance with the administration fee exemption for employees of an employee-sponsor (the remaining members)—the fee would satisfy the charging rule in subsection (2), (3) or (4) if the remaining members were the only members of the fund who held the MySuper product.

Note: In some circumstances, the RSE licensee may wish to offer a MySuper product for the employees of a large employer or its associates (see sections 29T and 29TB). Any fee set for that MySuper product may differ from the equivalent fee set for another MySuper product within the fund. In other circumstances, a separate MySuper product may not be offered, but instead a lower administration fee charged to the employees of a particular employer-sponsor (see section 29VB).

(16) Schedule 1, page 14 (after line 26), after item 42, insert:

42A Paragraph 29VB(1)(b)

  Omit "one or more", substitute "those".

(17) Schedule 1, page 14, after proposed item 42A, insert:

42B At the end of Division 5 of Part 2C

  Add:

29VE Percentage -based administration fees may be capped

     If, under the governing rules of a regulated superannuation fund:

  (a) all or part of the administration fee in relation to a MySuper product is charged to those members of the fund who hold the product as a percentage of so much of the account balance of each of those members that relates to the MySuper product; and

  (b) the amount of the administration fee is capped at a specified amount; and

  (c) the cap is the same for all of those members; and

  (d) but for the fact that the administration fee is capped in that way, a charging rule in section 29VA would be satisfied in relation to the administration fee;

that charging rule is taken to be satisfied in relation to the administration fee.

(18) Schedule 1, page 17 (after line 17), after item 47, insert:

47A Section 29XC

  Omit "Fair Work Australia", substitute "the Fair Work Commission".

(19) Schedule 1, item 72, page 26 (line 28), omit "is void if", substitute "is void to the extent that".

(20) Schedule 1, item 72, page 27 (line 5), omit "is void if", substitute "is void to the extent that".

(21) Schedule 1, item 72, page 27 (line 10), omit "is void if", substitute "is void to the extent that".

(22) Schedule 1, item 112, page 36 (line 22), omit "242M(1)", substitute "242P(1)".

(23) Schedule 1, item 112, page 39 (line 26), omit "brief".

(24) Schedule 1, item 112, page 41 (line 10), at the end of subsection 224A(1), add:

  ; and (o) include any other information prescribed by the regulations.

(25) Schedule 1, item 112, page 41 (lines 11 to 14), omit subsection 224A(2), substitute:

(2) For the purposes of paragraph (1)(f), the amount to be stated in the notice for the alleged contravention of the provision must be equal to:

  (a) if the provision is an offence provision—one-fifth of the maximum penalty that a court could impose on the person for that contravention; and

  (b) if the provision is a civil penalty provision—one-fortieth of the maximum penalty that a court could impose on the person for that contravention.

(26) Schedule 1, page 45 (after line 17), after item 119, insert:

Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012

119A Subitem 13(1) of Schedule 4

  Omit "FWA" (wherever occurring), substitute "the FWC".

119B Subitem 13(3) of Schedule 4 (definition of FWA )

  Repeal the definition.

119C Subitem 13(3) of Schedule 4

  Insert:

  FWC has the same meaning as in the Fair Work Act 2009.

(27) Schedule 1, item 129, page 49 (line 4), omit "42", substitute "42B".

(1) Clause 2, page 5 (cell at table item 33, column 1), omit the cell, substitute:

(2) Schedule 1, item 44, page 15 (line 33), omit "in writing".

(3) Schedule 1, item 44, page 16 (line 4), omit "in writing".

(4) Schedule 1, item 46, page 16 (lines 13 to 17), omit subsection 29WA(4), substitute:

Directions

(4) For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:

  (a) the direction was not given in writing; or

  (b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.

(5) The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.

Exception—life policies, investment account contracts and cash investment options

(6) If an asset (or assets) attributed to the person mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:

  (a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;

  (b) a life policy under which the benefit to the person (or a relative or dependant of the person) is based only on the realisation of a risk, not the performance of an investment;

  (c) an investment account contract the only beneficiaries of which are the person, and relatives and dependants of the person;

  (d) an investment option under which the investment is held as cash;

subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the person is invested in the life policy, under the investment account contract or in the cash investment option.

(5) Schedule 1, item 47, page 16 (line 33), omit "in writing".

(6) Schedule 1, item 47, page 17 (line 4), omit "in writing".

(7) Schedule 1, item 47, page 17 (after line 17), at the end of section 29WB, add:

Directions

(4) For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:

  (a) the direction was not given in writing; or

  (b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.

(5) The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.

Exception—life policies, investment account contracts and cash investment options

(6) If an asset (or assets) attributed to the member mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:

  (a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;

  (b) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment;

  (c) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member;

  (d) an investment option under which the investment is held as cash;

subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the member is invested in the life policy, under the investment account contract or in the cash investment option.

(8) Schedule 1, item 72, page 27 (after line 21), after section 58A, insert:

58B Service providers and investments

(1) This section applies if a trustee, or the trustees, of a regulated superannuation fund does one or more of the following:

  (a) acquires a service from an entity;

  (b) invests assets of the fund in or through an entity;

  (c) invests assets of the fund in or through a financial product;

  (d) purchases a financial product using assets of the fund;

  (e) uses assets of the fund to make payments in relation to a financial product.

(2) If the trustee, or the trustees, would not breach:

  (a) a provision of any of the following:

     (i) this or any other Act;

     (ii) a legislative instrument made under this or any other Act;

     (iii) the prudential standards;

     (iv) the operating standards;

     (v) the governing rules of the fund; or

  (b) any covenant referred to in this Part or prescribed under this Part;

in doing one or more of the things mentioned in subsection (1), the general law relating to conflict of interest does not apply to the extent that it would prohibit the trustee, or the trustees, from doing the thing.

(9) Schedule 1, Part 2, page 49 (after line 6), at the end of the Part, add:

130 Application of amendment inserting section 58B

  The amendment made by item 72 of this Schedule, to the extent that it relates to proposed section 58B, applies in relation to things done on or after 1 July 2013.

This bill, which is the fourth and final tranche of legislation implementing the government's MySuper and governance reforms, was referred to the Parliamentary Joint Committee on Corporations and Financial Services on 29 November last year. On 5 February this year the PJC reported and made nine recommendations, eight substantive recommendations and a recommendation that the bill be passed after due consideration of the PJC's report.

The government has accepted six of the eight recommendations and this bill will implement four of them. A fifth will be implemented by upcoming regulations and a sixth does not require regulation. The changes recommended by the PJC will provide trustees with more information, in the event that APRA issues them with an infringement notice, and greater clarity about the penalties involved. The service provider provision will be amended so that a fund's governing rules would void only to the extent they compel a trustee to use a particular service provider.

In addition to these changes the government is introducing a number of other amendments, some of which have been suggested by industry, which will enhance the MySuper reforms and improve flexibility. The amendments will allow trustees to have a single fixed cap on percentage based administration fees. The cap will reduce the risk that some members could be charged significant amounts in administration fees which are likely to exceed the costs of administering the member's funds. Amendments will also prevent trustees from undermining the intent of MySuper by ensuring that members can hold both MySuper and choice products if they wish to do so.

Finally, the bill will make consequential amendments reflecting the change in title of Fair Work Australia to the Fair Work Commission. In addition, the amendments will improve the quality and relevance of information in the 'product dashboard' about a MySuper product's performance by providing for the details to be set out in regulations and by providing trustees with more time to prepare for the reporting of their portfolio holdings.

The government will also introduce further amendments in response to targeted industry consultation. These amendments will clarify that the legislation is not intended to prohibit the use of related parties, provided the trustee complies with the trustee covenants and other related legislation. These further amendments will also address concerns relating to the direction of contributions provisions by carving out certain existing products such as risk in capital guarantee products from the direction of contributions requirements in sections 29WA and 29WB, including regulation-making powers so that a direction given to the trustee of another fund can be relied upon by the trustee of a successor fund and amending the existing direction arrangements so that only directions given after 31 March 2013 are required to be in writing.

The government has chosen not to implement two recommendations of the PJC. The first is recommendation 1, in which the PJC suggested imposing time limits on a member's ability to request reasons for decisions from trustees in relation to a complaint made by that member. The PJC indicated that record-keeping and a trustee's ability to respond to a request for reasons would decline as time passed.

The government does not support this recommendation because it would mean that members could complain about decisions but could not have access to the reasons for those decisions. This is not consistent with the notion of procedural justice and fairness. In addition, as industry noted at the PJC hearings, there are already a range of record-keeping requirements in the superannuation sector and the bill, as introduced, does not impose an undue burden on trustees. Trustees are currently obliged to keep records and files for compliance with general trust law obligations, possible legal action and information-gathering powers of the Superannuation Complaints Tribunal. In that context, a requirement to provide members with reasons for decisions is appropriate and not burdensome.

The government also does not support recommendation 7 of the PJC. The PJC has suggested removing schedule 1, item 71, from the bill on the grounds that both it and item 70 make the same amendment to the Superannuation Industry (Supervision) Act 1993 using slightly different numbering, so there might be a drafting error. However, this item is a contingent amendment and is required because another bill before the parliament, the Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures) Bill 2012 seeks to amend the same section. Depending on which bill receives royal assent first, either item 70 or item 71 will amend the SI(S) Act. I commend the amendments to the House.

See this speech in context