Commonwealth Numbered Acts

SUPERANNUATION AMENDMENT ACT 1988 No. 130, 1988 - SECT 4

4. After Part X of the Principal Act the following Part is inserted:

                   "PART XA-SUPERANNUATION UNDER OTHER LAWS
Interpretation

"153AA. (1) In this Part:
'applicable law' means a relevant law that is declared by the Minister, by
notice published in the Gazette, to be an applicable law for the purposes of
this Part;
'eligible body' means a relevant body that is declared by the Minister, by
notice published in the Gazette, to be an eligible body for the purposes of
this Part;
'relevant body' means:

   (a)  a company or other body corporate of a kind referred to in
        subparagraph (a) (iii) of the definition of 'approved authority' in
        subsection  3 (1); or

   (b)  an authority or body of a kind referred to in subparagraph (a) (iv) of
        that definition (other than an authority or body established under a
        relevant law);
being a company, body or authority that is an approved authority or that is
declared by the Minister, by notice published in the Gazette, to be a relevant
body for the purposes of this Part;
'relevant law' means a law of the Commonwealth (including this Act) or of the
Australian Capital Territory;
'superannuation benefits' includes any benefits similar to the benefits
provided under this Act;
'superannuation scheme' means a superannuation or retirement scheme, however
established, and includes any arrangement for the provision of superannuation
benefits to a person upon or by reason of that person's ceasing to hold an
office or appointment or to be employed or to the dependants of a person upon
or by reason of that person's death.

"(2) For the purposes of this Part:

   (a)  a reference to a person who is employed under a relevant law or an
        applicable law includes a reference to a person holding an office or
        appointment under that law; and

   (b)  a reference to a person who is employed by a relevant body or an
        eligible body includes a reference to a person holding an office or
        appointment in that body.

"(3) Where a person is a director of a company or other body corporate
incorporated, whether before or after the commencement of this Part, under a
law of the Commonwealth, a State or Territory, being a company or other body
that is a relevant body, the person shall, for the purposes of this Part, be
taken to be employed by the company or other body.

"(4) The Minister may, by notice published in the Gazette, declare that the
person holding or occupying a particular office or position is to be taken,
for the purposes of this Part, to be the employer of specified persons and,
upon the publication of such a notice, the person shall be so taken.
Restrictions upon provision of superannuation

"153AB. (1) Where a person is employed under a relevant law, superannuation
benefits for or in relation to the person shall not be provided under that law
or any other law (other than this Act) or under terms and conditions of
employment determined under any such law unless:

   (a)  their provision is permitted under section 153AC;

   (b)  the relevant law or other law expressly provides for their provision;
        or

   (c)  the relevant law or other law allows their provision and the Minister
        has, by writing signed by the Minister, approved their provision.

"(2) Where a person is employed by a relevant body, that body shall not
provide, or arrange for the provision of, superannuation benefits for or in
relation to the person unless:

   (a)  their provision is permitted under subsection (1);

   (b)  their provision is permitted under section 153AC; or

   (c)  the body has power to provide them and the Minister has, by writing
        signed by the Minister, approved their provision.

"(3) Where superannuation benefits may be provided to a person to whom
subsection (1) or (2) applies without contravention of that subsection, those
benefits may be provided under:

   (a)  a superannuation scheme that will provide benefits only for, or in
        relation to, such persons; or

   (b)  an existing or proposed superannuation scheme that will also provide
        superannuation benefits for, or in relation to, persons other than
        such persons.

"(4) Where the provision of superannuation benefits for or in relation to
persons who are, or who include persons who are, employed under a relevant law
or by a relevant body has been approved by the Minister under paragraph (1)
(c) or (2) (c):

   (a)  a superannuation scheme that purports to provide those benefits has no
        force or effect, or no force or effect in its purported application in
        respect of persons so employed, unless it is approved by the Minister
        by writing signed by the Minister; and

   (b)  an amendment of a superannuation scheme that provides those benefits
        solely in respect of persons so employed has no force or effect unless
        it is approved by the Minister by writing signed by the Minister.

"(5) Where guidelines for the provision of superannuation benefits for or in
relation to persons who are, or who include persons who are, employed under an
applicable law or by an eligible body have been determined by the Minister
under subsection 153AC (3):

   (a)  a superannuation scheme that purports to provide those benefits has no
        force or effect, or no force or effect in its purported application in
        respect of persons so employed, to the extent that it is inconsistent
        with those guidelines; and

   (b)  an amendment of a superannuation scheme that provides those benefits
        has no force or effect, or no force or effect in its purported
        application in respect of persons so employed, to the extent that it
        is inconsistent with those guidelines.

"(6) Where a superannuation scheme, not being a superannuation scheme referred
to in subsection (4) or (5), purports to provide, in contravention of
subsection (1) or (2), superannuation benefits for or in relation to persons
who are, or who include persons who are, employed under a relevant law or by a
relevant body, that superannuation scheme has no force or effect, or no force
or effect in its purported application in respect of persons so employed.

"(7) Subsection (1) or (10) shall not be taken to prevent the provision of
superannuation benefits under a superannuation scheme that was in existence on
23 April 1978.

"(8) Subsection (2) or (10) shall not be taken to prevent the provision of
superannuation benefits by, or arranged for by, a relevant body under a
superannuation scheme that was in existence immediately before the body became
a relevant body.

"(9) An amendment of a superannuation scheme referred to in subsection (7) or
(8), being a scheme that provides superannuation benefits solely in respect of
persons of a kind referred to in subsection (1) or (2), has no force or effect
unless it is approved by the Minister by writing signed by the Minister.

"(10) Without limiting the effect of subsection (4), (5), (6) or (9),
superannuation benefits for or in relation to a person shall not be provided
under a superannuation scheme, or under an amendment of a superannuation
scheme, that has no force or effect because of that subsection.

"(11) Where the Minister has approved, under subsection 153AC (4), an aspect
of the provision of superannuation benefits that would, upon its
implementation, be inconsistent with the guidelines determined by the Minister
in relation to the provision of those benefits, the superannuation scheme, or
an amendment of a superannuation scheme, by which that aspect is to be
implemented shall not, by reason only of the inclusion of that aspect, be
taken to be inconsistent with those guidelines for the purposes of subsection
(5). Provision of superannuation in accordance with Ministerial guidelines

"153AC. (1) Where a person is employed under an applicable law, superannuation
benefits for or in relation to the person may be provided under that
applicable law or any other relevant law (other than this Act) or under terms
and conditions of employment determined under any such law, if that applicable
law or that other relevant law allows the provision of those benefits and they
are provided:

   (a)  unless paragraph (b) applies-in accordance with guidelines determined
        by the Minister, under subsection (3), for their provision; or

   (b)  where the Minister has approved, under subsection (4), any aspect of
        their provision that is inconsistent with the guidelines referred to
        in paragraph (a)-in accordance with the Minister's approval and with
        the guidelines so referred to in respect of all other aspects of their
        provision.

"(2) Where a person is employed by an eligible body, that body may provide, or
arrange for the provision of, superannuation benefits for or in relation to
the person if that body has power to provide those benefits and they are
provided:

   (a)  unless paragraph (b) applies-in accordance with guidelines, determined
        by the Minister, under subsection (3), for their provision by the body
        or under an arrangement made by the body; or

   (b)  where the Minister has approved, under subsection (4), any aspect of
        their provision by the body or under an arrangement made by the body,
        being an aspect that is inconsistent with the guidelines referred to
        in paragraph (a)-in accordance with the Ministerial approval and with
        the guidelines so referred to in respect of all other aspects of their
        provision.

"(3) The Minister may determine, in writing, guidelines for the provision of
superannuation benefits for or in relation to persons employed under a
particular applicable law or by a particular eligible body, and, where the
Minister so determines, the Minister shall, as soon as practicable thereafter,
serve, either personally or by post, a copy of the guidelines on the employer
of the persons.

"(4) Where any aspect of the provision of superannuation benefits:

   (a)  under an applicable law or under terms and conditions of employment
        determined under an applicable law; or

   (b)  by an eligible body; would, if it were implemented, be inconsistent
        with the guidelines determined by the Minister under this section in
        relation to their provision, the Minister may, upon being requested in
        writing to do so, approve that aspect.

"(5) The Minister shall not:

   (a)  under subsection (3), determine guidelines for the provision of
        superannuation benefits; or

   (b)  under subsection (4), approve any aspect of the provision of
        superannuation benefits that is inconsistent with guidelines
        determined by the Minister; if the Minister's determination of those
        guidelines or approval of that aspect would be inconsistent with any
        regulations made under the
        Occupational Superannuation Standards Act 1987.

"(6) The Minister may, at any time before a copy of the guidelines is served
on the employer of persons in accordance with the requirements of subsection
(3), communicate a copy of the guidelines to the employer by any electronic
means whatsoever.

"(7) Guidelines determined by the Minister under subsection (3):

   (a)  shall come into force:

        (i)    where a copy of the guidelines is communicated to an employer
               of persons under subsection (6)-on the day on which they are so
               communicated or, if the guidelines are expressed to come into
               force on a later day, on that later day; or

        (ii)   where a copy of the guidelines is not so communicated to an
               employer of the persons-on the day on which a copy of the
               guidelines is served on the employer or, if the guidelines are
               expressed to come into force on a later day, on that later day;
               and

   (b)  shall be disallowable instruments within the meaning of section 46A of
        the Acts Interpretation Act 1901.

"(8) Guidelines determined for the provision of superannuation benefits for or
in relation to persons employed under a particular applicable law, or by a
particular eligible body, may relate to any matter connected with their
provision or with the administration of a superannuation scheme for their
provision, and, in particular, may provide that only a specified class of
those persons are to be permitted to contribute to, and to be provided with
benefits under, that scheme. Effect of contravention of section 153AB or 153AC

"153AD. (1) Any act done in relation to the provision of superannuation
benefits that contravenes section 153AB is void to the extent that it
contravenes that section.

"(2) Any act done in relation to the provision of superannuation benefits
under, or purportedly under, a superannuation scheme approved by the Minister
under section 153AB, that contravenes the terms and conditions of the scheme
as so approved is void to the extent that it contravenes those terms and
conditions.

"(3) Where, by reason of the operation of subsection (1) or (2), the payment
of money by a person or body to another person or body is void, then, unless
the Minister has declared in writing that this subsection does not apply:

   (a)  the money so paid is recoverable as a debt due to the person or body
        who paid it; and

   (b)  if the person or body who paid the money is the employer and the
        Minister has directed that person or body, by notice in writing, to
        take action to recover it-the person or body shall take action to
        recover it accordingly.

"(4) Where, by virtue of the operation of subsection 153AB (4), (5), (6) or
(9), a superannuation scheme, or an amendment of a superannuation scheme, is
of no force or effect, the Minister may, after having regard to the
consequences to persons receiving, or likely to receive, benefits under the
scheme, by determination in writing:

   (a)  declare the scheme or amendment, and all or any actions associated
        with its establishment, making or operation, to have the same force
        and effect as if it had made provision for superannuation benefits in
        accordance with the requirements of this Part; or

   (b)  declare the scheme or amendment, and all or any actions associated
        with its establishment, making or operation, to have the force and
        effect referred to in paragraph (a) if the employer concerned, within
        a period specified in the determination, takes, to the satisfaction of
        the Minister, such action in relation to the scheme or amendment as is
        specified in the determination, being action that, in the opinion of
        the Minister:

        (i)    will most effectively modify the operation of the scheme or
               amendment so that its effect will be substantially similar to
               the effect it would have had if it had made provision for
               superannuation benefits in accordance with the requirements of
               this Part; or

        (ii)   if it cannot be so modified-will most effectively restrict the
               operation of the scheme or amendment.

"(5) Where, by virtue of the operation of subsection 153AB (4), (5) or (6), a
superannuation scheme, or an amendment of a superannuation scheme, is of no
force or effect in its application in respect of particular persons, the
Minister may, after having regard to the consequences to persons receiving, or
likely to receive, benefits under the scheme, by determination in writing:

   (a)  declare the scheme or amendment, in its application to those persons,
        and all or any actions associated with its application in respect of
        those persons, to have the same force and effect as if it had made
        provision for superannuation benefits in respect of those persons in
        accordance with the requirements of this Part; or

   (b)  declare the scheme or amendment, in its application in respect of
        those persons, and all or any actions associated with its application
        in respect of those persons, to have the force and effect referred to
        in paragraph (a) if the employer concerned, within a period specified
        in the determination, takes, to the satisfaction of the Minister, such
        action in relation to the scheme or amendment as is specified in the
        determination, being action that, in the opinion of the Minister:

        (i)    will most effectively modify the operation of the scheme or
               amendment so that the effect of its application in respect of
               those persons will be substantially similar to the effect its
               application would have had if it had made provision for
               superannuation benefits in respect of those persons in
               accordance with the requirements of this Part; or

        (ii)   if it cannot be so modified-will most effectively restrict the
               operation of the scheme or amendment in its application of
               those persons.

"(6) Where the Minister makes a determination under subsection (4) or (5), he
or she:

   (a)  shall cause a copy of the determination to be given to the employer
        concerned; and

   (b)  shall cause a copy of the determination to be laid before each House
        of the Parliament within 5 sitting days of that House after its
        making.

"(7) Either House of the Parliament, within 5 sitting days of that House after
a copy of a determination has been laid before that House may, in pursuance of
a motion upon notice, pass a resolution disallowing the determination.

"(8) Where:

   (a)  a notice referred to in subsection (7) is given with respect to a
        determination; and

   (b)  at the expiration of the period during which a resolution disallowing
        the determination could have been passed:

        (i)    the notice has not been withdrawn and the relevant motion has
               not been called on; or

        (ii)   the relevant motion has been called on, moved and seconded and
               has not been withdrawn or otherwise disposed of;
the determination shall be taken to have been disallowed.

"(9) If:

   (a)  neither House of the Parliament passes a resolution in accordance with
        subsection (7) disallowing a determination; and

   (b)  the determination is not to be taken to have been disallowed under
        subsection (8); the determination takes effect on whichever of the
        following days is the later:

   (c)  the day immediately following the last day on which a resolution
        disallowing the determination could have been passed;

   (d)  where the determination is conditional upon the employer's taking, to
        the satisfaction of the Minister, specified action within a specified
        period and the Minister is satisfied that that action is so taken-the
        day on which the Minister, by notice in writing given to the employer,
        declares himself or herself to be so satisfied.

"(10) If, before the expiration of 5 sitting days of a House of the Parliament
after a copy of a direction has been laid before that House:

   (a)  the House of Representatives is dissolved or expires, or the
        Parliament is prorogued; and

   (b)  at the time of the dissolution, expiry or prorogation, as the case may
        be:

        (i)    a notice of motion disallowing the determination has not been
               withdrawn and the motion has not been called on; or

        (ii)   a motion disallowing the determination has been called on,
               moved and seconded and has not been withdrawn or otherwise
               disposed of; the copy of the determination shall, for the
               purposes of this section, be taken to have been laid before
               that first-mentioned House on the first sitting day of that
               first-mentioned House after the dissolution, expiry or
               prorogation, as the case may be.

"(11) A reference in this section to the provision of superannuation benefits
includes a reference to any act done in relation to the establishment or
administration of a superannuation scheme for their provision, including the
receipt of contributions under the scheme.".