BILLS DIGEST NO. 26, 2020–21              18 November 2020

Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020

Robert Anderson
Economic Policy Section

Date introduced: 6 February 2020

House:  House of Representatives

Portfolio: Treasury

Commencement: Sections 1 to 3 commence on Royal Assent. Schedule 1 commences the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2020.

Purpose of the Bill

The purpose of the Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020 (the Bill) is to amend various Acts including the Superannuation Industry (Supervision) Act 1993 (SIS Act), the Superannuation (Unclaimed Money and Lost Members) Act 1999 (SUMLM Act) and the Retirement Savings Accounts Act 1997 (RSA Act) to facilitate the progressive closure of all eligible rollover funds (ERFs) by 30 June 2021, and to allow the Commissioner of Taxation to reunite amounts received from ERFs with a member’s active account.

Background

Superannuation providers are generally unable to transfer funds from members’ accounts without their permission. Exceptions to this principle include superannuation funds and retirement savings account (RSA) providers transferring amounts to eligible rollover funds (ERFs) and amounts required to be transferred to the Commissioner of Taxation (the Commissioner) as unclaimed money, lost super or low-balance inactive accounts.[1]

Having lost or unclaimed superannuation accounts can result in individuals having lower superannuation balances, and therefore lower retirement incomes.

Eligible rollover funds

An ERF is a fund that is eligible to receive benefits rolled over from another fund without member consent. According to the Australian Prudential Regulation Authority’s register of superannuation institutions there are currently seven ERFs in operation:

•       AMP Eligible Rollover Fund

•       Australia's Unclaimed Super Fund

•       Australian Eligible Rollover Fund

•       SMF Eligible Rollover Fund

•       Super Safeguard Fund

•       SuperTrace Eligible Rollover Fund and

•       The Super Money Eligible Rollover Fund (SMERF).[2]

Eligible rollover funds are regulated under Part 24 of the SIS Act and similar provisions are contained in Part 9 of the RSA Act. Under section 243 of the SIS Act, a trustee of a superannuation fund may apply to an ERF to transfer a member’s benefits to the ERF. Similarly, an RSA provider may apply to the trustee of an ERF, on behalf of the RSA holder to transfer the holder’s benefit to the ERF under section 89 of the RSA Act.

Eligible rollover funds are intended to be a temporary repository for small account balances[3] or for accounts belonging to persons that cannot continue to be a member of a fund (for example, because the member changes employment).[4] As identified by the Productivity Commission, superannuation providers are required to nominate an ERF to send unclaimed accounts to if it is deemed in the members’ best interests, however ‘regulations do not provide strict guidance on when this would be the case’.[5] The ostensible purpose of ERFs is to have specific funds with expertise in reuniting members with their lost superannuation.[6]

The Commissioner of Taxation’s role

In certain circumstances, such as where a superannuation account (including an account in an ERF) is an inactive low-balance account or an amount of money that is unclaimed, the superannuation fund managing that account is required to transfer the account balance to the Commissioner of Taxation in accordance with the SUMLM Act.[7] The Commissioner of Taxation is then able to reunite the lost or unclaimed amounts with their owners (where they can be identified) and manages the funds in the interim.[8] The Commissioner pays interest on superannuation monies when the ATO processes a claim.[9]

The SUMLM Act requires superannuation providers to pay the balance of accounts to the Commissioner where:

•       the person has reached eligibility age, the fund has not received an amount in respect of the person within the last two years and the fund has been unable to contact the person after five years[10]

•       the person is deceased and the fund has, among other things, been unable to pay the benefit to the rightful owner[11]

•       the amount from a super-split under the Family Law Act 1975 cannot be paid to a fund for the receiving spouse[12]

•       a member meets the definition of ‘lost member’ and the account balance is less than $6,000[13]

•       a member meets the definition of ‘lost member’ and their account has been inactive for 12 months and the fund is unlikely to ever be able to pay an amount to the member[14] or

•       a member was a temporary resident who has left Australia.[15]

Following the implementation of the Treasury Laws Amendment (Protecting Your Superannuation Package) Act 2019 (PYSP Act) a superannuation fund is also required to pay the balance of a member’s account to the Commissioner if the account is an inactive low-balance account—subject to certain exceptions an inactive low-balance account is, broadly, an account that relates to a choice or MySuper product (or an RSA deposit account) which is less than $6,000 and has not received a contribution within 16 months.[16] The PYSP Act also introduced a new power to enable the Commissioner to automatically consolidate unclaimed money, inactive low-balance account and lost member account amounts into a member’s active superannuation account where the account will have a balance of $6,000 or more once consolidated.[17]

Changes proposed by the Bill

The Productivity Commission’s (PC) Superannuation: Assessing Efficiency and Competitiveness (PC Report) submitted to the Treasurer in December 2018 found that ERFs have not been a particularly successful mechanism for reuniting members with their lost superannuation, especially in comparison to the ATO’s data matching process.[18] ERFs have relatively low reunification rates, transferring out only 15.1 per cent of accounts in 2016–17.[19] Comparatively, the ATO has continued to improve its use of taxpayer data sets to facilitate the transfer of superannuation, with more than $3 billion of lost super consolidated into active super accounts in 2017–18.[20]

The PC recommended that superannuation accounts (including those held in ERFs) with balances under $6,000 and 13 months or more of inactivity should be transferred to the ATO for consolidation. The PC also recommended that all ERFs should be wound-up within three years.[21] As such, the Bill proposes to require the outstanding balances of ERFs be transferred to the ATO to manage by 30 June 2021, starting with small balances (less than $6,000) by 30 June 2020 and remaining balances by 30 June 2021. In the 2020–21 Budget, the Government announced its intention to amend both dates by moving each of them back one year, but as yet, such amendments have not been introduced.[22]

The Government also announced in the 2020–21 Budget, that it would amend the Bill to ‘allow all superannuation funds to voluntarily transfer amounts to the ATO in circumstances where the trustee believes it is in the best interests of that member, such as amounts that would otherwise have been transferred to an ERF’.[23]

Table 1, extracted from the Explanatory Memorandum to the Bill provides a comparison of key features of the proposed law and the current law.

Table 1: Comparison of key features of proposed law and current law

Proposed law

Current law

A retirement savings account or superannuation provider can no longer transfer a member’s account balance into an eligible rollover fund.

A retirement savings account or superannuation provider can transfer a member’s account balance into an eligible rollover fund.

New circumstances will be included where an eligible rollover fund must pay amounts to the ATO:

·    for accounts with balances less than $6,000 on 1 June 2020, these must be paid to the ATO by 30 June 2020;

·    all remaining accounts must be paid by 30 June 2021;

unless the trustee ceases holding the account.

Amounts must be paid to the ATO where at the end of an unclaimed money day:

·    the definition of unclaimed money is met;

·    the definition of lost member account is met; or

·    the definition of inactive low-balance account is met;

unless the trustee ceases holding the account.

Amounts must also be paid to the ATO when the amount belongs to a former temporary resident.

Amounts paid to the ATO from an eligible rollover fund will be included in the amounts that the Commissioner can proactively reunite with an active superannuation account.

The Commissioner is able to proactively transfer amounts paid under the SUMLM Act to a person’s active superannuation account.

Source: Explanatory Memorandum, Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020, pp. 6–7.

Implementation

The Australian Taxation Office (ATO) has provided a roadmap for the implementation of the changes required under the Bill. This may be indicative of possible new dates that the Government intends for the proposed measures to apply from.

According to the ATO’s deployment timeline, ATO deployment in July 2020 will involve ‘design and build functions to enable fund transfers and tracking of amounts transferred under this measure’. Furthermore the ATO road mapped industry deployment as follows:

•       by 30 June 2021, ERF accounts are to roll over all accounts with a balance of less than $6,000 to the ATO as unclaimed super money (USM) and

•       by 31 January 2022, ERFs must transfer remaining accounts to the ATO.[24]

Committee consideration

Senate Standing Committee for the Selection of Bills

The Senate Standing Committee for the Selection of Bills recommended that the Bill not be referred to Committee.[25]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills initially requested additional advice from the Minister about whether decisions made under proposed Part 3C of the SUMLM Act (at item 38 of Schedule 1 to the Bill, which requires ERF trustees to transfer all accounts below $6,000 to the ATO by 30 June 2020, and all remaining accounts to the ATO by 30 June 2021) would have a review process similar to the review process which applies to Part 3A of the SUMLM Act.[26]

In response to the Committee’s request, the Minister confirmed that unlike the decision under Part 3A (which enables the Commissioner to determine that a person is a departed temporary resident) proposed Part 3C does not involve any administrative decision making, rather it imposes a statutory requirement: ‘[t]herefore, it is not appropriate to afford the same review rights to an account holder of an eligible rollover fund’.[27]

The Committee acknowledged the Minister’s response, requested that the key information provided by the Minister be included in the Explanatory Memorandum and had no further comment on the Bill.[28]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[29]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights made no comment on the Bill.[30]

Policy position of non-government parties/independents

Australian Labor Party (ALP)

The Australian Labor Party supports the measures proposed in the Bill. In his second reading speech, the Shadow Minister for Financial Services, Stephen Jones expressed support for the Bill on the basis that ERFs are essentially redundant and the measures should allow the Commissioner to reunite more lost superannuation:

Eligible rollover funds were designed to look after unclaimed superannuation, but essentially they are now redundant. This legislation provides a timetable to wrap up the remaining ERFs by 30 June 2021, with funds transferred to the Australian Taxation Office. This will allow the Australian tax commissioner to reunite superannuation accounts they receive from eligible rollover funds with the members' active accounts. 

We support this bill because Labor wants to see every Australian in a high-performance fund. We want to ensure that we have an end to multiple accounts, which is what this legislation is aimed at addressing. To date, it is worth pointing out, the Australian Taxation Office has successfully reunited more than 2.1 million lost or forgotten superannuation accounts with their rightful owners. This is something we can all be very pleased about. This is a greater success than AUSfund have been able to achieve over a 10-year period. It is a success rate that we hope to see matched with the wrap-up of ERFs.[31]

Pauline Hanson’s One Nation

Senator Pauline Hanson has moved a number of amendments to the Bill in the Senate which seek to increase the number of circumstances under which a superannuation provider can provide funds to the Commissioner, such as:

A superannuation provider may pay to the Commissioner of Taxation any amount it holds on behalf of a member, former member or non-member spouse if it reasonably believes paying the amount to the Commissioner is in the best interests of the member, former member or non-member spouse.[32]

As noted above under the heading ‘changes proposed by the Bill’, the Government appears to have endorsed this position and announced in the 2020–21 Budget, that it would amend the Bill to ‘allow all superannuation funds to voluntarily transfer amounts to the ATO in circumstances where the trustee believes it is in the best interests of that member, such as amounts that would otherwise have been transferred to an ERF’.[33]

Position of major interest groups

The Library was unable to find any publicly stated positions on the Bill by major interest groups.

Financial implications

According to the Explanatory Memorandum to the Bill:

This measure is estimated to have a gain to the budget of $143.0 million in fiscal balance terms over the forward estimates period. In underlying cash balance terms this measure is estimated to have a gain to the budget of $199.0 million over the forward estimates period. The difference between the fiscal and cash estimates reflects the time taken to reunite amounts with individuals.[34]

In the 2020–21 Budget, the Government announced that the underlying cash balance is expected to increase by $79.3 million over the forward estimates period—it appears that this is as a result of the proposed amendments and is in addition to the above figure, however this is not clear.[35]

The Government also announced that it would provide the $4.7 million over four years to the ATO to administer amounts transferred voluntarily.[36]

As outlined in the Explanatory Memorandum, the amendments in the Bill are expected to have a minor regulatory impact on business and individuals.[37] The Treasury has not provided a Regulation Impact Statement (RIS) for the specific measures in the Bill, but has instead accepted the total costings of the PC report as equivalent to a Regulation Impact Statement. For the combined PC Report recommendations, Treasury has estimated that the average annual regulatory costs for business will be approximately $63 billion and the annual regulatory cost savings for individuals will be approximately $55 billion, with a net regulatory cost of $8 billion.[38]

Key provisions

The most substantive change contained in the Bill is proposed Part 3C of the SUMLM Act.[39] As outlined in proposed Division 1 of Part 3C the object of this part is to set up the procedure for all account balances in ERFs to be paid to the Commissioner of Taxation.

Statement of and payment of Accounts

Proposed section 21A of the SUMLM Act requires superannuation providers who are trustees of ERFs to give the Commissioner a statement of information regarding member accounts by 30 June 2020—as noted earlier, this date has passed.[40]

ERF low balance accounts

Under the proposed changes, the trustee of an ERF is required by 30 June 2020, to provide the Commissioner with a statement in the approved form, with information relevant to:

•       each ERF low balance account, which is defined as an account that on 1 June 2020 was held on behalf of a person and had a balance of less than $6,000 and

•       the administration of proposed Part 3C or the Departing Australia superannuation payment (including the taxation implications) in connection with each ERF low balance account held by the fund.[41]

If there are no ERF low balance accounts held by the fund at the end of 1 June 2020, the superannuation provider must provide a statement to that effect.[42]

Eligible rollover fund members

Similar to proposed subsection 21A(1) of the SUMLM Act, the trustee of an ERF is required by 30 June 2021, to provide the Commissioner with information of:

•       each account (other than an ERF low balance account) that as at the end of 1 June 2020 was held by the fund on behalf of a person (an eligible rollover fund member) and

•       the same kind of information pertaining to ERF low balance accounts as is relevant to each account held by an eligible rollover fund member.[43]

Payment of Accounts

Proposed subsection 21C(1) of the SUMLM Act provides that superannuation providers must pay to the Commissioner ERF accounts balances by certain times—the amount payable in respect of the eligible rollover fund member is the amount that would have been payable by the superannuation provider if the member had requested that the balance held in the account be rolled over or transferred to a complying superannuation fund.[44]

Proposed paragraph 21C(2)(a) requires that ERF low balance accounts are due and payable to the Commissioner by 30 June 2020. Proposed paragraph 21C(2)(b) requires that all other ERF member accounts are due and payable to the Commissioner by 30 June 2021.

According to the note in proposed subsection paragraph 21C(2): ‘The Commissioner may defer the time at which the amount is due and payable: see section 255-10 in Schedule 1 to the Taxation Administration Act 1953’. [45] The Explanatory Memorandum provides the following example of when the Commissioner may exercise this existing discretion:

The Commissioner has the discretion to extend the date when payments and statements are due. In exercising this power the Commissioner may give consideration to the impact on relevant members, the reasonableness of the request (taking into account how long the trustee has had to make appropriate arrangements), and the intent of the policy. For example, a deferral may be appropriate if there is a death benefit claim being processed or there is a claim currently being considered by the Australian Financial Complaints Authority. If the information is not given by the required time, the Taxation Administration Act 1953 provides for offences and administrative penalties.[46]

Payment by the Commissioner

Like other types of unclaimed and lost superannuation amounts that are paid to the Commissioner, the Bill proposes that ERF amounts that are paid to the Commissioner be paid by the Commissioner:

•       to a complying superannuation fund if directed by the member[47]

•       to the person’s beneficiaries, if the person has died and the Commissioner is satisfied that the original fund would have paid the amount to the beneficiaries—otherwise to the person’s legal personal representative[48]

•       to the person, if: the person has reached eligibility age; the amount is less than $200; or the person has a terminal medical condition within the meaning of the Income Tax Assessment Act 1997[49] or

•       to a person’s active superannuation account if the account will have a balance of $6,000 or more once consolidated and the Commissioner is unable to satisfy the above payment mechanisms, or in the case of a temporary resident, pay it to a temporary resident under section 20H of the SUMLM Act.[50]

Interest payable

As with other lost and unclaimed superannuation amounts paid by the Commissioner, proposed subsections 21E(5) and (6) require the Commissioner to pay interest at the time they reunite superannuation with a person, their superannuation fund, legal personal representative or death beneficiary. Interest is calculated in accordance with the regulations—for existing provisions of the SUMLM Act, these are outlined in Part 4 of the Superannuation (Unclaimed Money and Lost Members) Regulations 2019.

Future of ERFs

The SIS Act and the RSA Act are also amended to prevent superannuation funds and retirement savings account providers from transferring new amounts to eligible rollover funds from the later of seven days after Royal Assent or 1 May 2020.[51]

The SIS Act is also amended to prevent future applications to operate an ERF on or after the day after Royal Assent.[52]

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[1].              Superannuation Industry (Supervision) Regulations 1994, regulations 6.28 and 6.29; Superannuation Industry (Supervision) Act 1993 (SIS Act), section 243; Superannuation (Unclaimed Money and Lost Members) Act 1999, (SUMLM Act), sections 17, 20QD and 24E.

[2].              Australian Prudential Regulation Authority (APRA), List of RSES and RSE Licensees and MySuper Authorised products and ERFs,  APRA, 26 October 2020 available at APRA, ‘Register of superannuation institutions’, APRA website. Please note this list is regularly updated.

[3].              Funds have varying definitions of ‘small account balances’—as a simple example, REST sets the threshold at less than $6,000 and applies a 16 month inactivity test, while the eligible rollover fund managed by Perpetual notes that it may have received a member’s superannuation as a result of, among other things, the balance being less than $1,000 (Rest, ‘Eligible rollover fund’, Rest website; Perpetual, ‘What is the Australian Eligible Rollover Fund (AERF)?’, Perpetual website).

[4].              Explanatory Memorandum, Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020, p. 5.

[5].              Productivity Commission (PC), Superannuation: assessing efficiency and competitiveness, Inquiry report, 91, PC, Canberra, 21 December 2018, pp. 304 and 306; SIS Act, paragraph 52(2)(c) and subsection 243(1).

[6].              PC, Superannuation: assessing efficiency and competitiveness, op. cit., p. 306.

[7].              SUMLM Act, sections 17 and 20QD.

[8].              See for example subsection 17(2) of the SUMLM Act in relation to unclaimed money.

[9].              Australian Taxation Office (ATO), ‘ATO-held super’, ATO website, last modified 16 October 2020. Superannuation (Unclaimed Money and Lost Members) Regulations 2019, sections 8 and 9. For amounts received by the Commissioner prior to 1 July 2013, the rate is the Treasury bond rate for the last working day of the financial year immediately before the financial year for which interest is payable; for amounts paid on or after 1 July 2013, the rate is the percentage change in the CPI number between the 2 March quarters most recently published before the first day of the financial year (rounded up to four decimal places).

[10].              SUMLM Act, sections 10, 12 and 17; ‘eligibility age’ is defined under section 10 and is 65 years for a man and 60 years for a woman or, if higher age is prescribed by the governing rules of the fund, then that age; Superannuation (Unclaimed Money and Lost Members) Regulations 2019, section 5.

[11].              SUMLM Act, sections 14 and 17.

[12].              SUMLM Act, subsection 12(2) and section 17.

[13].              SUMLM Act, subsection 24B(1) and section 24E; under section 8, a lost member means a lost RSA holder within the meaning of the Retirement Savings Accounts Regulations 1997 or a lost member within the meaning of the Superannuation Industry (Supervision) Regulations 1994.

[14].              SUMLM Act, subsections 24B(1) and (2) and section 24E.

[15].              SUMLM Act, sections 20AA and 20F.

[16].              SUMLM Act, subsection 20QA(1).

[17].              SUMLM Act, section 24NA.

[18].              PC, Superannuation: assessing efficiency and competitiveness, op. cit., p. 312.

[19].              Ibid—as noted by the PC Report, this 15.1 per cent overestimates the proportion of accounts that are reunified as it includes amounts transferred to the ATO as unclaimed monies.

[20].              ATO, ‘Check now for your share of $17.5b in lost super’, ATO website, last modified 11 October 2018.

[21].              PC, Superannuation: assessing efficiency and competitiveness, op. cit., p. 68 (Recommendation 5).

[22].              Australian Government, Budget measures: budget paper no. 2: 2020–21, pp. 191–192.

[23].              Ibid., p. 192.

[24].              ATO, ‘Deployment timelines’, ATO website, last modified 5 November 2020. Please note, the ATO website currently lists the implementation of this step as ‘June 2022 – ERFs must transfer remaining accounts to the ATO by 31 January 2022’.

[25].              Senate Standing Committee for the Selection of Bills, Report, 2, 2020, 13 February 2020.

[26].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 2, 2020, 12 February 2020, p. 4. Existing section 20P of the SUMLM Act provides that decisions under Part 3A of the Act (relating to the payment of unclaimed superannuation of former temporary residents) are reviewable under the provisions of Part IVC of the Taxation Administration Act 1953.

[27].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2020, 26 February 2020, p. 55.

[28].              Ibid., pp. 56–57.

[29].              The Statement of Compatibility with Human Rights can be found at pages 15–16 of the Explanatory Memorandum to the Bill.

[30].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 2, 2020, 12 February 2020, p. 9.

[31].               S Jones, ‘Second reading speech: Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020’, House of Representatives, Debates, 11 February 2020, p. 799.

[32].              Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020, amendment, sheet 8892, Senate, 26 February 2020, items 19 and 27 inserting proposed section 22 of the SUMLM Act.

[33].              Australian Government, Budget measures: budget paper no. 2: 2020–21, p. 192.

[34].              Explanatory Memorandum, op. cit., p. 3.

[35].              Australian Government, Budget measures: budget paper no. 2: 2020–21, p. 192.

[36].              Ibid.

[37].              Explanatory Memorandum, op. cit., p. 3.

[38].              V Wilkinson, Letter to Office of Best Practice Regulation: Certification of independent review: Productivity Commission review of efficiency and competitiveness of the Australian Superannuation System, 13 December 2019.

[39].              Inserted by item 38 of Schedule 1 to the Bill.

[40].              Under section 388-55 in Schedule 1 to the Taxation Administration Act 1953, the Commissioner may defer the time within which an approved form is required to be given to the Commissioner or to another entity. However, it would be prudent for the dates to be amended before the Bill is passed by Parliament.

[41].              Proposed subsection 21A(1) of the SUMLM Act.

[42].              Proposed subsection 21A(3) of the SUMLM Act.

[43].              Proposed subsection 21A(4) of the SUMLM Act.

[44].              Proposed subsection 21C(3) of the SUMLM Act.

[45].              Under section 255-10 of the Taxation Administration Act 1953, the Commissioner may defer the payment time for tax-related liabilities (which will include payment of the value of ERF accounts to the ATO under the amended SUMLM Act due to the amendment to the Taxation Administration Act proposed by item 47 of the Bill). However, it would be prudent for the dates to be amended before the Bill is passed by Parliament.

[46].              Explanatory Memorandum, op. cit., pp. 10–11.

[47].              Proposed subsection 21E(1) and proposed paragraph 21E(2)(a) of the SUMLM Act.

[48].              Proposed subsections 21E(1) and (4) and proposed paragraphs 21E(2)(b) and (c) of the SUMLM Act.

[49].              Proposed subsections 21E(3) and proposed paragraph 21E(2)(d) of the SUMLM Act.

[50].              Proposed subparagraph 24NA(1)(a)(iia) of the SUMLM Act as inserted by item 43 of Schedule 1 to the Bill.

[51].              Items 15 and 17 of Schedule 1 to the Bill; Explanatory Memorandum, op. cit., p. 6.

[52].              Item 16 of Schedule 1 to the Bill.