Stephen Jones (Whitlam, Australian Labor Party, Assistant Treasurer) Share this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Public Sector Superannuation Salary Legislation Amendment Bill 2022 repeals paragraph 5(e) of the Superannuation (Salary) Regulations with effect from 1 July 1986 and provides that the effect of the repeal does not apply to individuals where limited circumstances are satisfied.

The changes in the bill are only relevant to current and former Commonwealth public sector civilian employees.

The default superannuation salary of a member of the Commonwealth Superannuation Scheme established under the Superannuation Act 1976 includes the value of any allowance that, under the regulations, is to be treated as salary under the act.

Prior to 1 March 2022 paragraph 5(e) of the regulations provided that the rent-free use of housing made available to a person by reason that they held a particular office or performed particular duties or work was an allowance that was to be treated as salary for the purpose of the act.

The value of rent-free housing as per paragraph 5(e) of the regulations flowed through to the default superannuation salary of members of the Public Sector Superannuation Scheme, and members of the Public Sector Superannuation Accumulation Plan and certain members of non-Commonwealth choice funds.

At the time the regulations were made in 1978, an employee's assessable income was taken to include the value of rent-free housing. With the introduction of the fringe benefits tax regime in 1986, the tax burden in relation to rent-free housing shifted from the employee to employer.

Following this change in 1986 the Commonwealth has typically not treated rent-free housing as forming part of superannuation salary and generally neither employers nor employees have made superannuation contributions that have taken into account the value of rent-free housing.

A recent case before the Federal Court has exposed differing views on the operation and scope of former paragraph 5(e) of the regulations. If the interpretation as argued by the applicants was accepted, it would have significant financial impacts for the Commonwealth and inequitable financial outcomes for differing cohorts of individuals.

Some individuals would receive an unexpected windfall increase in their superannuation benefits while others could incur potentially large unexpected debts for unpaid member contributions with little or no corresponding increase in their superannuation benefit.

These outcomes would be a consequence of the reliance by all relevant parties on a view that rent-free housing at the time it was provided did not form part of superannuation salary.

Retrospectively repealing paragraph 5(e) of the regulations will regularise the past administrative practice of Commonwealth employers and employees by effectively restoring the position with respect to rent-free housing that all relevant parties have treated as governing the Commonwealth civilian public sector superannuation schemes since 1986.

The repeal of paragraph 5(e) of the regulations will commence from 1 July 1986, the date of the introduction of the fringe benefits tax regime, and therefore regularise the change in practice that seemingly occurred after that time.

As the purpose of the retrospective repeal of paragraph 5(e) of the regulations is to regularise the longstanding practice of employees and employers, the bill makes provision for cases, if any, in which paragraph 5(e) was applied historically in particular employer relationships in a way that included the value of rent-free housing in superannuation salary.

The bill does this by excluding a limited cohort of individuals from the effect of the repeal of paragraph 5(e) of the regulations where no-one was acting pursuant to a mistake as shown from the actions of both Commonwealth employers and employees as evidenced by contributions having been made on the basis, in the period 1 July 1986 to 28 February 2022, that the value of the rent-free housing received by the employee was included in their superannuation salary.

The exclusion end date of 28 February 2022 reflects that paragraph 5(e) of the regulations was repealed with prospective effect from 1 March 2022.

I commend the bill to the House.

See this speech in context