Introductory Info
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.
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]