Nick Xenophon (SA, Independent) Share this | Hansard source

I move amendment (1) on sheet 5644 revised to the Temporary Residents’ Superannuation Legislation Amendment Bill 2008:

(1)    Schedule 1, item 16, page 20 (after line 22), after Part 3A, insert:

PART 3B—ADMINISTRATION OF TAXATION OF SUPERANNUATION OF ELIGIBLE TEMPORARY RESIDENTS

20Q Retention scheme

        (1)    The Commissioner must, within 45 days of the commencement of the Temporary Residents’ Superannuation Legislation Amendment Act 2008, determine by legislative instrument a scheme that enables an eligible temporary resident to retain a superannuation interest in a fund until the person reaches the age of 60 or some other later date determined by the person.

        (2)    Despite anything in section 44 of the Legislative Instruments Act 2003, section 42 of that Act applies to a legislative instrument made under subsection (1).

        (3)    Section 48 of the Legislative Instruments Act 2003 does not apply to an instrument made under subsection (1).

        (4)    If, under section 42 of the Legislative Instruments Act 2003, an instrument made under subsection (1) or a provision of such an instrument is disallowed or is taken to have been disallowed (the deemed disallowance), the Commissioner must, within 30 days after the disallowance or deemed disallowance, determine a replacement legislative instrument for the purposes of subsection (1).

        (5)    In this section:

eligible temporary resident means a person:

             (a)    for whom the superannuation provider has a current address and who maintains regular contact with the superannuation provider; and

             (b)    who would otherwise be subject to Part 3B.

20R Application of Part 3B

                 Part 3B does not apply to any person unless the Commissioner has determined a scheme in accordance with section 20Q and the scheme has been implemented.

This amendment addresses the inequity of the operation of the bill for those temporary residents who maintain an active interest in their superannuation fund. The intent of the amendment is to provide a level of protection to those temporary residents who are actively pursuing their superannuation funds by requiring the commissioner to determine a scheme that enables eligible temporary residents to retain their superannuation interests in a fund until that person reaches the age of 60 or some other later date determined by the person. An eligible temporary resident is defined as a person for whom the superannuation provider has a current address, who maintains regular contact with the superannuation provider and who would otherwise be subject to the amendments made by this act—that is, those provisions that would result in the transfer of the benefit to the ATO and be subject to the DASP when claimed. These funds will not be subject to the DASP where the temporary resident claims their benefit at 60 years of age or older.

Subclause 2 of the amendment relates to the application of the Legislative Instruments Act 2003. Section 42 of that act provides for the disallowance of legislative instruments subject to section 44, which lists legislative instruments that are not subject to disallowance. That list includes instruments, other than regulations, relating to superannuation. The amendment is intended to ensure that any scheme determined by the commissioner is disallowable by precluding the application of section 44 of the Legislative Instruments Act 2003.

Subclause 3 relates to the application of section 48 of the Legislative Instruments Act 2003, which provides that an instrument that is the same in substance as a disallowable instrument cannot be remade within six months of the original disallowance. This subclause provides that section 48 does not apply. It ensures that, under subclause 4, the commissioner is able to determine a replacement scheme for the purposes of subclause 1 before the six-month period expires.

Under subclause 4, the commissioner must determine a replacement scheme within 30 days of the initial disallowance. The aim of this amendment is essentially to ensure that the commissioner implements a scheme that is sufficient to meet the intent of the amendment and to require the commissioner to implement a new scheme within a shorter time frame than would otherwise be allowed—that is, 30 days rather than six months, pursuant to the Legislative Instruments Act 2003.

Clause 20R relates to the application of the amendment. It prevents the commissioner from requesting the transfer of benefits from superannuation funds until such time as an appropriate scheme has been determined under subclause 20Q(1) and implemented. The amendment applies to former, current and future temporary residents. It essentially provides an opt-in mechanism for those residents. If this bill is about genuinely lost super then for those who maintain contact with their fund—and there is the flexibility there as to what is defined as regular contact; that needs to be determined—the intent of it is clear. It is to ensure that they are not penalised if they maintain contact. So we are not talking about lost super.