2 Establishment of the Public Sector Superannuation Scheme and the PSS Fund
3 Functions and Powers of CSC
9 Operation of the PSS Fund
10 Investment of the PSS Fund
11 Requests by Minister for Information
12 Delegation by CSC
13 Delegations by the Finance Minister
TRUST DEED
THIS DEED is made on 21st June 1990
BY THE COMMONWEALTH OF AUSTRALIA (in this Deed called “the Commonwealth”)
WHEREAS section 4 of the Superannuation Act 1990 (in this Deed called “the Act”) provides that the Minister, for and on behalf of the Commonwealth, must, within 30 days after the commencement of the Act, by Deed establish an occupational Public Sector Superannuation Scheme in order to provide benefits for certain of its employees and for certain other persons.
NOW THIS DEED WITNESSES as follows:
1
Interpretation
1.1 In this Deed, where the context requires or admits, a reference to the Deed shall include a reference to the Rules, as set out in the Schedule (in this Deed called “the Rules”), and the Rules shall form part of the Deed. In the case of an inconsistency between the Deed and the Rules, the Deed shall prevail.
1.2 In this Deed, where the context requires or admits, words and expressions defined in the Act or the Rules have the same meanings when used in the Deed. The headings in this Deed and in the Rules are for the convenience of reference only and shall not affect their interpretation.
1.3 In this Deed “Minister” means:
(a) the Finance Minister;
(b) if 2 or more Commonwealth Ministers administer Departments which have functions in relation to the administration of matters to which the Deed relates, the Minister who administers the Department which has the function in relation to each of those matters; or
(c) a member of the Executive Council acting for the time being for and on behalf of any of those Ministers; or
(d) a person, as defined in clause 13, to whom the Finance Minister has delegated his or her powers.
1.3AA In this Deed “Finance Minister” means the Minister administering the Public Governance, Performance and Accountability Act 2013.
2
Establishment of the Public Sector Superannuation Scheme and the PSS Fund
2.1 There is hereby established an occupational superannuation scheme (in this Deed called “the Public Sector Superannuation Scheme”) to come into force on 1 July 1990 for the benefit of:
(a) persons employed by the Commonwealth and approved authorities;
(b) holders of statutory offices;
(c) other persons who, under Part 3 of the Act, will be required to be, or may become, members of the Public Sector Superannuation Scheme; and
(d) persons who have an entitlement to an associate benefit;
to be administered in accordance with the Deed:
(e) in relation to the period before 24 June 1995, by the Commonwealth Superannuation Board of Trustees No. 1; and
(f) in relation to the period from 24 June 1995 to 30 June 2006, by the PSS Board; and
(g) in relation to the period from 30 June 2006 to immediately before the commencement of the Governance of Australian Government Superannuation Schemes Act 2011, by the Australian Reward Investment Alliance (which, in this Deed, is called “the Board”); and
(h) in relation to the period immediately following the commencement of the Governance of Australian Government Superannuation Schemes Act 2011, by the Commonwealth Superannuation Corporation (CSC) as defined in the Governance of Australian Government Superannuation Schemes Act 2011 (in this Deed called “CSC”).
2.2 For the purposes of the Public Sector Superannuation Scheme there is hereby established and vested in CSC (formerly referred to as “the Board”) a fund to be known as the Superannuation Fund No. 1 and after 23 June 1995 to be known as the PSS Fund.
3
Functions and Powers of CSC
3.1 The functions of CSC in relation to the Public Sector Superannuation Scheme and the PSS Fund are to administer the scheme and to manage and invest the PSS Fund in accordance with the provisions of the Act and this Deed including, without limiting the generality of the foregoing the following functions:
(a) to pay benefits to or in respect of members, preserved benefit members and associates, and to make payments to and receive payments from the Commonwealth as provided for in the Act;
(b) to provide information about benefits or potential benefits, and available options, to:
(i) members;
(ii) preserved benefit members;
(iii) associates; and
(iv) potential members;
(c) to provide advice to the Minister on proposed changes to the Act and the Deed; and
(d) to determine interest rates for the purposes of the Public Sector Superannuation Scheme.
3.2 CSC has power in Australia and elsewhere to do all things necessary or convenient to be done for, or in connection with, the performance of its functions and, in particular, may:
(a) give guarantees;
(b) underwrite or sub‑underwrite any form of investment including the underwriting or sub‑underwriting of the issue of shares, debentures or units in a unit trust;
(c) borrow moneys and give security over the whole or any part of the assets of the PSS Fund;
(d) appoint agents and attorneys;
(e) act as agent for other persons;
(f) engage consultants and investment managers;
(g) engage a panel of persons to assist it in determining whether a person is to be retired on grounds of invalidity;
(h) establish a Reconsideration Advisory Committee or Committees to examine and report on decisions of CSC and its delegates under the Rules relating to entitlements to benefits of members, preserved benefit members and associates;
(i) effect policies with insurers in CSC’s name to provide additional death and invalidity cover for members as provided for in the Rules;
(j) take action to control or manage, or to enhance or protect, the value of, any investment made out of the PSS Fund, or to enhance or protect, the return on any such investment; and
(l) establish a trust for the purpose of investing the PSS Fund; and
(m) charge fees, costs and expenses in relation to the PSS Fund, including arrangements connected with members, former members and non‑member spouses choosing particular investment strategies and arrangements connected with splitting of superannuation interests under the Family Law Act 1975, as provided for in the Rules.
3.2A In exercising its functions and powers CSC shall comply with the requirements of the Superannuation Industry (Supervision) Act 1993 and Regulations made under that Act, and have regard to the interests of members and their employers, preserved benefit members and associates.
3.3 Notwithstanding anything contained in the Deed, CSC shall, in exercising its functions and powers:
(a) act honestly in all matters concerning the Public Sector Superannuation Scheme and the PSS Fund;
(b) exercise, in relation to all matters affecting the Public Sector Superannuation Scheme and the PSS Fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide;
(c) ensure that CSC’s duties and powers are performed and exercised in the best interests of members, preserved benefit members and associates;
(d) keep the money and other assets of the PSS Fund separate from any money and assets, respectively:
(i) that are held by CSC in its own capacity or by the directors of CSC personally; or
(ii) that are money or assets, as the case may be, of a standard employer‑sponsor, or an associate of a standard employer‑sponsor, as defined in the Superannuation Industry (Supervision) Act 1993, of the PSS Fund;
(e) not enter into any contract, or do anything else, that would prevent CSC from, or hinder CSC in, properly performing or exercising CSC’s functions and powers;
(f) formulate and give effect to an investment strategy that has regard to the whole of the circumstances of the PSS Fund including, but not limited to, the following:
(i) the risk involved in making, holding and realising, and the likely return from, the PSS Fund’s investments having regard to its objectives and its expected cash flow requirements;
(ii) the composition of the PSS Fund’s investments as a whole including the extent to which the investments are diverse or involve the PSS Fund in being exposed to risks from inadequate diversification;
(iii) the liquidity of the PSS Fund’s investments having regard to its expected cash flow requirements;
(iv) the ability of the PSS Fund to discharge its existing and prospective liabilities;
(g) if there are any reserves of the PSS Fund — formulate and to give effect to a strategy for their prudential management, consistent with the PSS Fund’s investment strategy and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due;
(h) allow a member or a person who has a preserved benefit access to any information or any documents prescribed in Regulations under the Corporations Act 2001.
3.4 CSC must cause proper records to be kept in respect of:
(a) contributions paid into the PSS Fund; and
(b) benefits paid under the Act and this Deed (whether out of the PSS Fund or out of the Consolidated Revenue Fund); and
(c) amounts that, under the Act and this Deed, are:
(i) paid out of the Consolidated Revenue Fund into the PSS Fund; or
(ii) paid out of the PSS Fund to the Commonwealth.
Clauses 4, 5, 6, 7, 8 and 8A deleted in the 35th amending deed.
9
Operation of the PSS Fund
9.1 All contributions and other moneys paid to CSC, or as directed by CSC, shall be held in trust by CSC in the PSS Fund. The PSS Fund shall be managed and invested by CSC in accordance with the Act and the Deed.
9.2 The PSS Fund shall comprise:
(a) contributions made by or on behalf of members;
(b) contributions made by employers pursuant to the Act and the Deed;
(c) any other moneys paid or transferred to CSC pursuant to the Act and the Deed or which become subject to the trusts of the Deed;
(d) the income arising from investments;
(e) any accretions to or profits on realisation of investments; and
(f) funded components of associate benefits.
9.3 The PSS Fund shall be used by CSC to pay benefits to or in respect of members and associates, and to pay the costs and expenses of the management and investment of the PSS Fund.
10
Investment of the PSS Fund
10.1 For the purposes of this clause:
(a) “invest” means expend moneys with a view to obtaining a present or future financial return (whether by way of income, profit or otherwise); and
(b) “profit” includes capital profit.
10.2 Moneys standing to the credit of the PSS Fund which are, in the opinion of CSC, moneys that are not for the time being required for the purpose of making payments out of the PSS Fund under the Act and the Deed shall, so far as is practicable, be invested by CSC in accordance with the Act and the Deed, but CSC shall so manage the PSS Fund that moneys that are from time to time required to pay benefits that are payable out of the PSS Fund are available for that purpose.
10.3 Moneys that, by virtue of subclause 10.2, are required to be invested by CSC may be invested in any manner and, without limiting the generality of the foregoing, may be invested by CSC jointly with another person or other persons.
10.4 CSC must determine an investment strategy and policy as soon as possible after 1 July 1990 and thereafter regularly review such a strategy and policy, and, where it considers necessary or desirable, change its existing investment strategy or policy. In determining and reviewing its investment strategy and policy, CSC shall consult with such persons or bodies as it thinks fit.
10.5 CSC shall invest moneys standing to the credit of the PSS Fund that are available for investment only through an investment manager or managers who undertake to invest, and manage the investment of those funds on behalf of CSC.
10.6 CSC shall ensure that any investment manager engaged by CSC:
(a) operates within the investment powers of CSC and the investment strategy and policy as determined for the time being by CSC; and
(b) reports to CSC on the state of CSC’s investments and the investment market at such times and in such manner as CSC determines.
11
Requests by Minister for Information
11.1 CSC shall furnish to the Minister such information relating to the general administration and operation of the Public Sector Superannuation Scheme and the PSS Fund as the Minister may from time to time require.
12
Delegation by CSC
12.1 CSC may by an instrument under its seal delegate to:
(a) a director; or
(aa) a member of the staff of CSC; or
(d) an APS employee in the Department referred to in subclause 1.3(b); or
(e) an officer or employee of the person who is responsible for investing money forming part of a superannuation fund vested in or managed by CSC; or
(f) any other person who performs duties in connection with the operation of the Deed; or
(g) a committee consisting of 2 or more persons each of whom is a person referred to in any of the above paragraphs; or
(h) any other person;
all or any of its powers under the Deed other than its power to reconsider its own decisions or decisions made by its delegates.
12.2 CSC may by an instrument under its seal delegate to a Reconsideration Advisory Committee established under the Rules CSC’s power to reconsider its own decision or a decision made by its delegate and to determine the matter by:
(a) affirming the decision under reconsideration; or
(b) varying the decision; or
(c) substituting another decision; or
(d) setting the decision aside;
and, at its discretion, refunding any fee paid.
12.3 If CSC delegates a power under subclause 12.1, other than paragraph (h), the delegate may, by writing, sub‑delegate the power:
(a) if the delegate is a director — to:
(i) another director; or
(ii) a person referred to in paragraph 12.1(aa), (d), (e) or (f); or
(c) if the delegate is a person referred to in paragraph 12.1(aa), (d), (e) or (f) — to:
(i) another person referred to in the same paragraph; or
(ii) a person referred to in another of those paragraphs.
12.4 Section 34AA and paragraphs 34AB(a), (b) and (d) of the Acts Interpretation Act 1901 apply in relation to a sub‑delegation in a corresponding way to the way in which they apply to a delegation.
12.5 Section 34A and paragraphs 34AB(c) and (d) of the Acts Interpretation Act 1901 apply in relation to a sub‑delegation as if it were a delegation.
13
Delegations by the Finance Minister
13.1 The Finance Minister may by signed instrument delegate all or any of his or her powers under the Deed, other than this power of delegation, to:
(a) CSC or the chief executive officer (however described) of CSC;
(b) an APS employee in the Department referred to in subclause 1.3(b).
IN WITNESS whereof the Honourable Ralph Willis, Minister for Finance, has hereunto set the name of The Commonwealth of Australia and affixed his own seal the day and the year first above written.