Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 46 (26 February 2020)

• Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020

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Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020

Purpose	This bill seeks to amend various Acts to facilitate the closure of eligible rollover funds by 30 June 2021 and allow the Commissioner of Taxation to reunite amounts he or she receives from eligible rollover funds with a member's active account
Portfolio	Treasury
Introduced	Senate on 2 December 2019
Bill status	Before the Senate

Merits review

2.104 In Scrutiny Digest 2 of 2020 the committee requested the minister's advice as to whether decisions made under proposed Part 3C will be subject to similar review rights as currently provided for in existing Part 3A and, if not, the rationale for not providing for such review rights.^[19]

Minister's response^[20]

2.105 The minister advised:

Part 3C of the Act, inserted by the Bill, provides that where an eligible rollover fund account is below $6,000 the superannuation provider must transfer the money to the Commissioner of Taxation by 30 June 2020. All remaining eligible rollover fund accounts must be transferred to the Commissioner of Taxation by 30 June 2021. As the Committee has identified, the decision from the superannuation provider to transfer the funds is not subject to a merits review.
In addition to the proposed Part 3C, the Act already sets out a number of requirements, where, when certain conditions are met, a person's superannuation balance must be transferred to the Commissioner of Taxation. This includes where a member has been uncontactable, has a balance below a certain amount, or has sustained a continued period of inactivity. It also includes when a temporary resident has departed Australia. It is only this later case where review rights are afforded. In this case the right of review applies to the determination notice from the Commissioner of Taxation that the person is a departed temporary resident. This decision is reviewable under Part NC of the Taxation Administration Act 1953 as a decision of the Commissioner of Taxation (and not of the superannuation provider).
Unlike those provisions which deal with departed temporary residents, proposed Part 3C does not involve any administrative decision making. Therefore, it is not appropriate to afford the same review rights to an account holder of an eligible rollover fund. The proposed Part 3C is instead drafted consistently with other parts of the Act where the decision that a person has met certain criteria is made exclusively by the superannuation provider, and not the Commissioner of Taxation.
In addition to this, the requirement to transfer the money to the Commissioner of Taxation under the proposed Part 3C is a statutory requirement, and the decision to transfer the money will not be reliant on a government body or public official exercising a discretion. Therefore, a merits review arrangement would not be appropriate.
Instead, if there has been any wrongdoing or administrative error by the superannuation provider, the member may be able to take action under the best interest obligations contained in the Superannuation Industry (Supervision) Act 1993. The Australian Financial Complaints Authority can also consider a complaint from a person about a superannuation provider.

Committee comment

2.106 The committee thanks the minister for this response. The committee notes the minister's advice that proposed Part 3C does not involve any administrative decision making and therefore, it is not appropriate to afford the same review rights to an account holder of an eligible rollover fund.

2.107 The committee also notes the minister's advice that the requirement to transfer the money to the Commissioner of Taxation under the proposed Part 3C is a statutory requirement, and the decision to transfer the money will not be reliant on a government body or public official exercising a discretion and that therefore, a merits review arrangement would not be appropriate.

2.108 The committee further notes the minister's advice that where there has been any wrongdoing or administrative error by the superannuation provider, the member may be able to take action under the best interest obligations contained in the Superannuation Industry (Supervision) Act 1993. In addition, the Australian Financial Complaints Authority can consider a complaint from a person about a superannuation provider.

2.109 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.110 In light of the detailed information provided, the committee makes no further comment on this matter.

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[19] Senate Scrutiny of Bills Committee, Scrutiny Digest 2 of 2020, pp. 4-5.

[20] The minister responded to the committee's comments in a letter dated 24 February 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 3 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest