Bills Digest no. 133 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Michael Klapdor
Social Policy Section
23 June 2015
Contents
Purpose and history of
the Bill
Committee
consideration
Policy
position of non-government parties/independents
Position
of major interest groups
Financial
implications
Statement
of Compatibility with Human Rights
Background
Key
issues and provisions
Comment
Date introduced: 23
June 2015
House: House of
Representatives
Portfolio: Social
Services
Commencement:
Schedule 1 on 1 January 2016 and remaining sections on 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 ComLaw
website.
The Social Services Legislation Amendment (Defined Benefit
Income Streams) Bill 2015 (the Bill) will amend the Social Security Act 1991
(the SS Act) to place a cap on the amount of income from certain defined
benefit superannuation schemes that can be excluded from the social security
income test. From 1 January 2016 the amount that can be excluded, known as the
‘deductible amount’, will be capped at ten per cent of the gross amount payable
from the defined benefit scheme in that year. Those who receive income streams
from military superannuation defined benefit schemes will not be subject to the
proposed cap.
The Bill’s provisions were previously contained in
Schedule 1 of the Social Services Legislation Amendment (Fair and Sustainable
Pensions) Bill 2015 (the previous Bill) introduced into the Parliament on 4
June 2015.[1]
On 22 June 2015, the Government moved amendments in the House of
Representatives to remove Schedules 1, 2, 4, 5 and 6 from the previous Bill in
order to facilitate passage of Schedule 3 (which made changes to the social
security assets test).[2]
The previous Bill, as amended, was passed by both Houses on 22 June 2015.
The Bill reintroduces the provisions contained in Schedule
1 of the previous Bill. The Supplementary Explanatory Memorandum to the
previous Bill states that the Schedules that were removed ‘will
be reintroduced in [a] separate Bill in due course’.[3] Schedule 4 of the previous
Bill contained provisions similar to a Bill that was already before the Senate,
the Social Services and Other Legislation Amendment (Seniors Supplement
Cessation) Bill 2014 (the Seniors Supplement Bill).[4] The Seniors Supplement Bill
was also amended (primarily to change the commencement date) and passed by both
Houses on 22 June 2015.[5]
At the time of writing, no legislation containing Schedules 2, 5 and 6 of the
previous Bill has been introduced.
At the time of writing, the Bill has not been referred to
any committees.
The Labor Opposition has stated that it would support the
changes to the income test treatment of certain defined benefit schemes, as
proposed by the Bill.[6]
The Greens have previously stated that they were still considering the measure
(as it was presented in the previous Bill).[7]
The position of crossbench Senators on this particular measure is unclear.
The Australian Council of Social Services and the National
Welfare Rights Network have stated that they support the changes.[8]
The Australian Council of Public Sector Retiree
Organisations Inc. and the Tasmanian Association of State Superannuants have
suggested the measure may be unfair on those who made decisions based on the
existing or previous income test arrangements and that existing defined benefit
income stream recipients should be grandfathered.[9]
The Combined Pensioners and Superannuants Association also expressed a concern
that those affected made retirement decisions under the current rules and may
be unable to reverse those decisions.[10]
The Police Federation of Australia called for police in
defined benefit schemes to be made exempt from the measure.[11]
UniSuper submitted that the measure will have unintended
impacts, particularly on members of non-public sector defined benefit schemes,
and suggested a cap of at least 35 per cent (rather than the proposed ten per
cent cap).[12]
The Explanatory Memorandum to the Bill states that the
measure will provide a budget saving of $465.5 million over
the forward estimates.[13]
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 because the amendments ‘do not
limit access to social security’.[14]
Defined benefit superannuation schemes are those which pay a
set benefit, determined by a formula based on an employee’s earning history,
years of service and their age.[15]
The benefit is usually a multiple of the employee’s annual salary or average
final salary (over the last three years for example) with full benefits payable
only to those with a considerable length of service. The formula may also
account for employer or employee contributions to the superannuation fund.
Defined benefit funds are primarily public sector or large corporate funds and
most are now closed to new members.[16]
For these types of funds, the employer or the fund generally takes on the
investment risk because the benefits owed to members are not linked to the
investment performance of the fund. This sets defined benefit schemes apart
from the other, more common type of superannuation scheme: accumulation funds.
Benefits paid from accumulation funds are usually based on contributions (from
both employers and employees) as well as amounts the fund earns from investing
these contribution amounts. For accumulation funds, it is the members that bear
the investment risk as their benefits upon retirement can be affected by any
investment profits or losses.[17]
Social security payments are means tested to ensure they
are only provided to those that do not have adequate means to support
themselves. The Age Pension means testing regime attempts to calculate an
individual or couple’s ability to support themselves in retirement via tests on
both income and assets. Income or assets over certain threshold values can
either reduce a person’s pension payment rate or preclude them from receiving a
pension at all.
The assessment of superannuation income and assets is complex
with different tests applying to different types of superannuation schemes and
depending on when a person started to draw income from their superannuation
fund. For accumulation funds, which are primarily ‘account-based’, both the
income and assets test will be applied and whichever results in the lower
pension rate will be used.[18]
The invested capital in this type of superannuation scheme (the account
balance) is assessed under the assets test. The income test for account‑based
superannuation schemes assesses a deemed rate of income from the account
balance (regardless of the actual income drawn down).[19]
Prior to 1 January 2015, a different income test applied and pensioners who
were in receipt of an account-based superannuation income stream prior to this
date still have their income assessed under the old rules.[20]
Because income from account-based superannuation schemes generally includes a
part of the invested capital (not just the earnings on the investment) the old
income test rules deduct from the income stream an amount which represents the
‘return of capital’ or a return of the purchase price of the product.[21]
This was to ensure that the income test only assesses income
earned from the asset. However, the way this return of capital is calculated
often results in little or no income being assessed for these products as it
falls under the relevant income test threshold.[22] This was the reason why
the new deemed income method was applied to account-based superannuation
products purchased from 1 January 2015.
Defined benefit superannuation schemes are treated
differently from account-based schemes under the social security means test.
Most defined benefit schemes are exempt from asset testing—this is because the
income streams derived from such schemes are not attached to any specific
capital value (as with account-based schemes) and people receiving defined
benefits are unable to access the capital funding the income stream.[23]
The income test applied to defined benefit income streams is also different—from
1 July 2007, it assesses the annual payment from the scheme minus a deductible
amount. The ‘deductible amount’ is intended to represent the amount of
after-tax contributions provided directly by the member of a defined benefit
scheme. The deductible amount is a proportion of the superannuation interest
which gives rise to the income stream—it is the proportion that the sum of all
the tax-free components of the superannuation interest comprises of the total
interest.[24]
So if the sum of these components equals 15 per cent of the defined benefit
interest, then 15 per cent of the person’s annual payment is excluded from the
social security income test. Some income support recipients who started
receiving their defined benefit income stream prior to 1 July 2007 have their
deductible amount worked out under different rules if it results in a higher
deductible amount than the sum of the tax-free components. These rules
calculate the deductible amount based on the ‘undeducted purchase price’ of the
benefit, or the tax definition that applied during the period between 1998 and
1 July 2007.[25]
In the 2006–07 Budget, the Howard Government introduced
the Simpler Super package of reforms which included some changes to the
social security assets test and indirect changes to the way income from certain
superannuation schemes was assessed under the income test due to changes to the
tax assessment of these schemes.[26]
Some of the reforms were aimed at equalising the tax treatment of different
superannuation schemes—significant differences had arisen in the after-tax
value of defined benefit income streams considered taxed-source (where tax had
been paid on contributions and fund earnings since 1988) and untaxed-source
(where tax had not been paid on contributions and/or fund earnings).[27]
The Simpler Super reforms made the tax treatment of income streams from
these different defined benefit schemes more equal but in doing so provided an
indirect benefit to those in receipt of income from taxed-sourced defined
benefit income streams. To recognise the tax paid by taxed-source schemes, the Simpler Super reforms saw taxed‑source pensions
assigned a tax-free component, the ‘pre-1 July 1983 component’, that would be
included in the ‘deductible amount’ that is excluded from the Age Pension
income test.[28]
The pre-1 July 1983 component is the proportion of the person’s benefit equal
to the proportion of the member’s pre-1 July 1983 service out of their total
eligible service period. The Department of Social Services (DSS) explains that
the design of this component meant the pension income test was skewed in favour
of those with taxed-source income streams (compared to other superannuants):
-
The change in the calculation of the deductible amount resulted in people
with service prior to 30 June 1983 having a significant amount of up front
employer contributions treated as personal after-tax contributions.
-
This higher deductible amount was also changed from a fixed amount to a percentage
of annual income, which meant it increased as income stream payments increased.
-
Together these changes resulted in a higher deductible amount, and consequently
higher income support payments, even though nothing had changed for the defined
benefit recipient in terms of their contribution. For example, as at 30 June
2006, only 2.6 per cent of income support recipients had a deductible amount
greater than 10 percent.[29]
The effect of the 2007 changes has been that some defined
benefit income stream recipients receive a concessional treatment of their
income under the pension income test. DSS states that there are currently
around 140,000 income support payment recipients with defined benefit income
streams.[30]
Around 55 per cent of this group have no deductible amount and around ten per
cent have a deductible amount less than ten per cent of their superannuation
benefit.[31]
Around 35 per cent have a deductible amount of ten per cent or more, meaning
they will be affected by the proposed limit on the deductible amount (ten per
cent).[32]
Of those affected, around 20 per cent receive an income stream from a Federal
Government scheme, 75 per cent are part of a state or local government scheme
and around five per cent are part of corporate defined benefit schemes.[33]
The Minister for Social Services, Scott Morrison, described
the anomaly as a loophole that was ‘allowing 48,000 superannuants on higher
incomes ... to effectively fly under the radar on the income test for the
pension’.[34]
Articles in News Ltd. newspapers described those with deductible amounts over
ten per cent as ‘wealthy fat‑cats’ and ‘public servant fat cats’.[35]
In explaining the rationale for the measure the Minister gave an example of a
couple with a defined benefit income stream of $120,000 who had 50 per cent of
this income excluded from the pension income test (meaning they would also
qualify for a part-pension of $7,500 per year).[36]
However, figures provided by DSS at Budget estimates hearings indicate that
only a small number of the affected group had income streams of this
magnitude—around 60 per cent had annual defined benefit income streams less
than $30,000:
Table 1: Affected income support recipients’ income from
their defined benefit income stream
Income range
|
Number in the
income range
|
|
Less than $5,000
|
2,517
|
|
$5,000–$10,000
|
4,295
|
|
$10,000–$15,000
|
4,888
|
|
$15,000–$20,000
|
5,198
|
|
$20,000–$25,000
|
5,810
|
|
$25,000– $30,000
|
5,585
|
|
$30,000– $35,000
|
4,271
|
|
$35,000–$40,000
|
3,776
|
|
$40,000–$45,000
|
3,507
|
|
$45,000–$50,000
|
2,795
|
|
$50,000–$55,000
|
1,651
|
|
$55,000–$60,000
|
1,227
|
|
$60,000–$65,000
|
662
|
|
$65,000–$70,000
|
415
|
|
$70,000–$75,000
|
170
|
|
$75,000–$80,000
|
95
|
|
Over $80,000
|
120
|
|
Total
|
46,982
|
Source: Senate Community Affairs Legislation Committee, Official
committee Hansard, [proof copy], 4 June 2015, p. 105, accessed 16 June
2015.
The provisions in Schedule 1 of the Bill will limit the
deductible amount an individual in receipt of a defined benefit income stream
can exclude from the social security income test assessment to ten per cent of
the amount payable under the income stream for the year. Those in receipt of
military superannuation defined benefit income streams are exempt from the
proposed limit on the deductible amount. As noted above, the Government expects
around 47,700 people will be affected from 1 January 2016 with around 46,000
income support recipients receiving a reduced pension or allowance payment
(with an average reduction of $2,150 per year) and approximately 1,700 income
support recipients having their payment cancelled.[37]
Item 1 inserts a definition of military defined
benefit income stream at subsection 9(1) of the Social Security Act
1991 (SS Act)[38]
which includes schemes provided for under the Defence Forces Retirement
Benefits Act 1948, the Defence Force Retirement and Death Benefits Act
1973 and section 4 of the Military Superannuation and Benefits Act 1991.
Additional schemes can be added to this definition by legislative instrument,
provided for by new paragraph 9(2) inserted by item 2.
Items 4 and 5 insert new subsection 1099A(2) into
the SS Act which provides for the deductible amount for asset-test
exempt defined benefit income streams (which are not military defined
benefit income streams) to be limited to ten per cent of the income
stream amount for the year if the deductible amount would otherwise exceed ten
per cent of the income stream amount for the year. This means that the amount
of income from an asset-test exempt defined benefit income stream that is to be
assessed under the social security income test is: the annual payment – the
deductible amount (where the deductible amount is limited to a maximum of ten
per cent of the annual payment). Deductible amount is defined at
subsection 9(1) of the SS Act as the sum of the tax free components of
the income stream (worked out under Subdivision 307‑C of the Income
Tax Assessment Act 1997 or, if applicable, section 307‑125 of
the Income Tax (Transitional Provisions) Act 1997).
Item 7 inserts an identical provision at the end of
subsection 1099D of the SS Act to apply to asset-tested defined benefit
schemes which are not military defined benefit income streams.
Item 8 inserts new subclause 136(3A) into
Schedule 1A of the SS Act so that the ten per cent limit on defined
benefit schemes’ deductible amounts will apply in cases where a deductible
amount is worked out under the transitional provisions at clause 136 of
Schedule 1A.
The measure improves the targeting of the Age Pension and
provides for more equitable treatment of different superannuation income
streams. A small number of relatively high-income pensioners will lose their
income support payment as a result while others will receive lower rate pension
(but their superannuation income stream will be unaffected).
One significant issue for the measure is that it affects
retirees who have made decisions about their financial arrangements based on
the existing rules (such as whether to take lump sums or regular pension
payments or a mix of both). These retirees may have made different decisions if
the proposed cap on the deductible amount had been in place but now they are
not in a position to do so. As noted above, the Australian Council of Public
Sector Retiree Organisations Inc. have suggested the measure may be unfair on
those who made decisions based on the existing or previous income test
arrangements and that existing defined benefit income stream recipients should
be grandfathered.[39]
Any grandfathering arrangement would, however, undermine the intent of the
measure and the expected savings.
Military defined benefit income stream recipients will be
exempt from the deductible amount cap ‘in recognition of the unique nature of
military service’. Military superannuants have not necessarily served during
conflicts or in war zones, while other government employees who are not exempt
may also argue that their service is unique (and dangerous): such as police and
firefighters. In its submission to the Senate committee inquiry into the Bill,
the Police Federation of Australia called for police in defined benefit schemes
to be made exempt from the measure.[40]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Parliament
of Australia, ‘Social Services Legislation
Amendment (Fair and Sustainable Pensions) Bill 2015 homepage’,
Australian Parliament website, accessed 23 June 2015.
[2]. See
M Klapdor, Social
Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
Bills digest, 129, 2014–15, Parliamentary Library, Canberra, 2015, accessed 23
June 2015; ‘Social Services Legislation
Amendment (Fair and Sustainable Pensions) Bill 2015: Amendments’, 18 June 2015, accessed
19 June 2015.
[3]. Supplementary
Explanatory Memorandum, Social Services Legislation Amendment (Fair and
Sustainable Pensions) Bill 2015, accessed 19 June 2015.
[4]. Parliament
of Australia, ‘Social
Services and Other Legislation Amendment (Seniors Supplement Cessation) Bill
2014 homepage’, Australian Parliament website, accessed 23 June 2015.
[5]. Ibid.
[6]. B
Shorten (Opposition Leader) and J Macklin (Shadow Minister for Families and
Payments), Transcript
of press conference, Parliament House, Canberra, media release, 16 June
2015, accessed 23 June 2015.
[7]. R
Di Natale and R Siewert, Greens
to reverse Howard-era pension mistake, secure retirement income review,
media release, 16 June 2015, accessed 23 June 2015.
[8]. ACOSS,
Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
16 June 2015, p. 6, accessed 23 June 2015; National Welfare Rights Network, Submission
to Senate Community Affairs Legislation Committee, Inquiry into
the Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill
2015, 12 June 2015, p. 4, accessed 23 June 2015.
[9]. Australian
Council of Public Sector Retiree Organisations Inc., Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
12 June 2015, p. 2, accessed 16 June 2015; Tasmanian Association of State
Superannuants, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
June 2015, p. 3, accessed 23 June 2015.
[10]. Combined
Pensioners and Superannuants Association, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
11 June 2015, p. 3, accessed 23 June 2015.
[11]. Police
Federation of Australia, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
11 June 2015, pp. 1–2, accessed 23 June 2015.
[12]. UniSuper,
Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
19 June 2015, p. 5, accessed 23 June 2015.
[13]. Explanatory
Memorandum, Social Services Legislation Amendment (Defined Benefit Income
Streams) Bill 2015, p. 1, accessed 23 June 2015.
[14]. The
Statement of Compatibility with Human Rights can be found at page 4 of the
Explanatory Memorandum to the Bill. Explanatory
Memorandum, Social Services Legislation Amendment (Defined Benefit Income
Streams) Bill 2015, p. 4, accessed 23 June 2015.
[15]. Australian
Securities and Investment Commission (ASIC), ‘Types of super funds’, Moneysmart website,
accessed 15 June 2015.
[16]. Ibid.
[17]. Ibid.
[18]. An
account-based superannuation income stream is a form of retirement investment
that provide holders with a tax-free retirement income stream and flexible
access to their capital. Holders have an investment account within a relevant
superannuation or insurance fund. The account balance will increase when
investment earnings are added to the account and will decrease as the holder
draws down regular income payments. See Department of Families, Community
Services and Indigenous Affairs (FaCSIA), Retirement
income streams, FaCSIA, Canberra, 2007, pp. 15–22, accessed 15 June
2015.
[19]. DSS,
‘Deeming information’, DSS website, accessed 15
June 2015.
[20]. See
A Biggs, L Buckmaster, C Ey and M Klapdor, Social
Services and Other Legislation Amendment 2013, Bills digest, 29,
2013–14, Parliamentary Library, Canberra, 2013, p. 33, accessed 15 June 2015.
[21]. T
Power, ‘Start planning! New income
test rules mean less Age Pension’,
SuperGuide website, 12 May 2015, accessed 15 June 2015.
[22]. Statement of Compatibility with Human Rights, Explanatory Memorandum, Social Services and
Other Legislation Amendment Bill 2013, p. 25, accessed 15 June 2015.
[23]. As
part of reforms to the means testing of superannuation income streams in 1998,
existing defined benefit schemes were granted specific exemptions from asset
testing. DSS, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
11 June 2015, p. 3, accessed 15 June 2015; DSS, ‘4.9.2.20 Extension of asset-test exemption to pre-20/9/98 defined benefit income streams’, Guide to Social Security Law, DSS website, accessed 15 June
2015. For the means test treatment of schemes that do not meet the definition
of asset-test exempt, see DSS, ‘4.9.1.20
General provisions for assessing income streams’, Guide to Social Security Law, DSS website, accessed 15 June
2015.
[24]. Interest
here refers to the value of the defined benefit entitlement as calculated for
tax purposes (which is typically tied to previous salary, or average salary
over a number of years). The tax free components are worked out under subdivision 307-C of the Income Tax Assessment Act 1997 or if
applicable, subsection 307-125 of the Income Tax (Transitional Provisions)
Act 1997. DSS, ‘4.9.2.30 Income tax assessment
of asset-test exempt income streams’, Guide to Social
Security Law, DSS website, accessed 15 June 2015.
[25]. The
undeducted purchase price is worked out in accordance with subsection 27H(2) of
the Income Tax Assessment Act 1936 (as in force just before 1 July
2007). Or, if a person was receiving a social security benefit and payments
from a defined benefit income stream on or before 19 September 1998 the
undeducted purchase price definition used is the pre-1 July 1994 definition in
the Income Tax Assessment Act 1936. DSS, ‘4.9.2.30 Income tax assessment
of asset-test exempt income streams’, Guide to Social
Security Law, DSS website, accessed 15 June 2015.
[26]. Australian
Government, Budget
2006–07: a plan to simplify and streamline superannuation, 9 May 2006,
pp. 9–11, accessed 16 June 2015; Australian Government, A
plan to simplify and streamline superannuation: detailed outline, May
2006, accessed 16 June 2015
[27]. South
Australian Government Superannuated Employees Association, Towards
more equitable taxation and means testing treatment of untaxed-source defined
benefit pensions, Submission to the Tax Forum, Canberra, 4–5 October
2011, pp. 1–2, accessed 16 June 2015.
[28]. Ibid.,
p. 1.
[29]. DSS,
Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
op. cit., p. 4.
[30]. Ibid.,
p. 2.
[31]. Ibid.
[32]. Ibid.
[33]. Ibid.
[34]. S
Morrison (Minister for Social Services), Press
conference, Sydney, media release, 7 May 2015, accessed 16 June 2015.
[35]. S
Benson, ‘Morrison to stop wealthy fat
cats double-dipping the super system’, The Courier-Mail, 7 May 2015, accessed 16 June 2015.
[36]. S
Morrison, Press
conference, Sydney, op. cit.
[37]. DSS,
Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
op. cit., pp. 2–3.
[38]. Social Security Act
1991 (SS Act), accessed 23 June 2015.
[39]. Australian
Council of Public Sector Retiree Organisations Inc., Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
12 June 2015, p. 2, accessed 16 June 2015.
[40]. Police
Federation of Australia, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment (Fair and Sustainable Pensions) Bill 2015,
11 June 2015, pp. 1–2, accessed 23 June 2015.
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