Category: Front Page

An open letter to Prime Minister Scott Morrison – broken super promises

5 May 2019

Dear Prime Minister,

On Wednesday, 17 April 2019, I received an email from Des Moore, a former Treasury Deputy Secretary. It included, amongst other attachments, the AFR article by Andrew Tillett and Tom Mcllroy. It is datelined “Apr 16, 2019 – 9.00pm”.

That article said, amongst other things:

“Superannuation battlefield

Campaigning in the retirees’ haven of Victoria’s Bellarine Peninsula, which is in the marginal seat of Corangamite, Mr Morrison sought to sharpen the differences with Labor, as well as win back the Liberal base, by vowing no more tinkering with superannuation. “I make it very clear, no new taxes, no higher taxes on superannuation under my government ever,” he said. “This gives people certainty to plan for their future. It means that the goal posts will never be shifted.”

….

But Mr Morrison said Labor could not be trusted on superannuation. “I have no idea what Bill Shorten was talking about today when he says he won’t be putting increased taxes on superannuation. That’s his policy,” he said. “But I suppose, if you’ve already racked up $387 billion in higher taxes, he must have forgotten that includes $34 billion of taxes alone on superannuation. “When the number gets that high, he’s either lying about it today or he’s just forgotten the last person he hit with higher taxes.”

….

The Prime Minister rejected criticism of his own record on making unexpected superannuation changes, when as Treasurer he unveiled a number of changes to tackle what he described as “excesses” in the system at the 2016 budget that sparked a backlash among wealthy retirees.”

Unfortunately, you seem to have forgotten your own earlier broken promises.

You made 12 similar promises in May – June 2015 as Minister for Social Services in the Abbott Government:

Scott Morrison’s 12 tax-free superannuation promises : May to June 2015

(1) 3AW – 19 June 2015

“That is why we are so adamant about not having adverse changes to superannuation, that’s why we aren’t going to increase taxes on superannuation, and why we are trying to provide stability and certainty around superannuation for the simple reason that we want people to invest in it.”

(2) Sky News – 17 June 2015

MINISTER MORRISON: What we are not going to do is we are not going to tax those savings, like Bill Shorten wants to do. That is the difference, we will not tax your super, Bill Shorten will.

MINISTER MORRISON: Yes, and there are other taxation arraignments that apply to superannuation already and we are not going to increase those taxes as the Labor Party does and nothing we have done with the Greens has in any way changed the Government’s position on not taxing your super. We will not tax your super.

(3) Question Time – 16 June 2015

And when they get into their retirement, we are going to make sure that their hard-earned savings in their superannuation will not be the subject of the tax slug that those opposite want to impose, … Those opposite see it as a tax nest—a tax nest for those to plunder.

The shadow minister earlier referred to ‘trousering’. The ‘trouser bandit’ sits over there because he, together with the shadow Treasurerwants to come after the hard-earned superannuation savings…

What we will do for them is: we will not tax them like the ‘trouser bandit’ opposite.

(4) Sky News PM Agenda – 16 June 2015

The Government has made it crystal clear that we have no interest in increasing taxes on superannuation either now or in the future.

… unlike Labor, we are not coming after people’s superannuation…

(5) 2GB – 25 May 2015

Well that is right because the tax incentives that are given for superannuation – which we strongly support and we don’t want to take away – the Labor Party wants to take those away. What we want to do is encourage people to save for their retirement but then when you are in retirement that is what you draw on, not the pension. The whole point of putting those incentives in place is so that people don’t have to draw down on a pension.

Under us we think that more welfare and higher taxes is not the way forward. 

(6) Question Time – 25 May 2015

But on this side we think that those who have an entitlement are those who earn income to save for their retirement, the sort of income that they want to draw down in their retirement and which the shadow Treasurer wants to tax to within an inch of its life. On that side of the House it is all about higher taxes and more welfare, but not on this side and not in this budget.

(7) 3AW – 18 May 2015

MINISTER MORRISON: Well we do want to encourage everyone … to be saving for their retirement and particularly when you are drawing down on that when you are retired we don’t want to tax you like Chris Bowen does.

(8) Doorstop – 8 May 2015

Superannuation is there for people who have been saving over their lifetime to provide for their retirement. We don’t think that people who have done that should be punished with higher taxes, Bill Shorten does, and so does Chris Bowen and I think that’s a stark difference between the Government and the Opposition on these issues.”

(9) Press Conference – 7 May 2015

The Government does not support Labor’s proposal to tax superannuants more on the income they have generated for their retirement.

(10) Sky News AM Agenda – 5 May 2015

…what is not fair is if you save for your retirement and you create yourself a superannuation nest egg and the Government then comes along and taxes that income; which is what Labor are proposing to do.

(11) ABC RN – 5 May 2015

It’s the Labor Party who wants to tax superannuation, not the Liberal Party, particularly the incomes of superannuants and I think that’s a fairly stark contrast that’s emerging.

(12) 3AW – 1 May 2015

My own view is that the superannuation system, for example, meant I don’t want to tax people more when they’re basically investing for their own future… That’s why I think Chris Bowen’s idea, …of …taxing superannuation incomes, is a bad idea, I don’t support it…

Source:

Prepared and edited by Save Our Super from:

Labor media release:

CHRIS BOWEN MP

JIM CHALMERS MP

WEDNESDAY, 20 APRIL 2016

Further, in February 2016, as Treasurer in the Turnbull Government, you rightly cautioned against what you called the ‘effective retrospectivity’ of raising taxes or restrictions on the pension phase of superannuation, after attracting and trapping savings in superannuation for some 40 years under the earlier legislated tax rules (http://sjm.ministers.treasury.gov.au/speech/001-2016/). 

Then, in May 2016, as Treasurer, you broke your earlier promises and did just that.

In the May 2016 Budget, you went after people’s superannuation. You imposed higher taxes on those saving for retirement.

You failed to include in the May 2016 Turnbull/Morrison Budget appropriate ‘grandfathering’ provisions which have accompanied every major adverse change in pensions and superannuation tax for the last 40 years.

Why should Australians believe you now?

Many (including those in Higgins), are unlikely to do so.

Regards,

Jack Hammond QC – Founder, Save Our Super

http://saveoursuper.org.au

7.30 Report interviews Save Our Super on Kelly O’Dwyer – 24 April 2017

Click here to view the ABC’s 7.30 Report interview of Save Our Super’s Jack Hammond QC and John McMurrick on Kelly O’Dwyer.

Click here for the transcript of the interview.

Grandfathering provisions

Save Our Super believes that major changes to the existing rules of the Australian superannuation system should not be made unless, at the same time, appropriate grandfathering provisions are included in the legislation.

“Grandfathering provisions” are qualifying clauses within legislation which exempt those people already involved in the activity with which the legislation deals.

Tony Abbott supports “grandfathering”

On 27 June 2017, Tony Abbott, in a speech to the Institute of Public Affairs, Brisbane, supported grandfathering provisions. He said, amongst other things:

Absent an acute crisis, to get elected with an economic reform programme, it’s probably necessary to guarantee that existing beneficiaries will keep their benefits.

But even with grandfathered changes, a government that accepts we have a spending problem rather than a revenue one can make a big difference over time.

 

Especially with the 2014 budget, the Abbott government probably exceeded the reform speed limit but there was never any confusion about the direction of travel.

Reserve Bank of Australia and Productivity Commission on grandfathering

There are many examples of Federal Parliament’s use of grandfathering provisions when major changes were made to the superannuation system. For example:

in a September 1996 Research Paper, the Reserve Bank of Australia said:

“Important changes to the tax rules were made in 1983, 1988, 1992, and 1996, which generally reduced the tax benefits to superannuation, although the treatment remained concessional. … Changes were generally grandfathered at each stage, so that retirees would receive benefits taxed under a variety of rules depending on when contributions were made.” (p 9); and

in a July 2015 study, Superannuation Policy for Post-Retirement, the Productivity Commission said:

“Australia’s superannuation system has been subject to regular policy change since its inception (chapter 1), and those people significantly affected by major rule changes have generally been afforded grandfathering provisions that maintain their previous entitlements.” (p 101).

Grandfathering Provisions Required

The historic use of appropriate grandfathering provisions to protect those who were significantly affected by major superannuation rule changes, justifies their use in the Coalition’s Superannuation ( Excess Transfer Balance Tax) Imposition Act 2016 (C’th) (No 80 of 2016) and Treasury Laws Amendment (Fair and Sustainable Superannuation) Act 2016 ) (C’th) (No 81 of 2016).

However, none of Save Our Super’s appropriate grandfathering provisions are included in those two Acts.

 

Super changes – why grandfathering the rules must be considered

Jack Hammond, QC, founder of Save Our Super

Terrence O’Brien, B Econ (Hons), M Econ, former Treasury official

Any government must retain the right to change policies as circumstances change over time. Policy change always poses two questions: Is the change an improvement? And is it properly implemented? This article focusses on implementation issues, which are particularly important when changing super laws. (In an article to appear in the June 2017 edition of the SuperGuide newsletter, Jack and Terry will evaluate whether the July 2017 changes constitute an improvement.)

Since the income tax law first specified taxation of superannuation in 1915, it has always legislated taxation treatment over the contribution, accumulation and drawdown phases of this uniquely long-lived financial product. Unless the law included specification of how superannuation will be taxed on withdrawal, no one would accept the restrictions and uncertainties from long-term saving in super, even if contributions and accumulation were favourably treated.

The legally specified tax treatment affects three generations:

  • young workers seldom contributing more than the Super Guarantee minimum
  • mid-career savers maximising super contributions after managing the expenses of family formation, housing and education
  • retirees expecting the living standards they saved for.

Young workers are compelled through the Super Guarantee to contribute to super as soon as they first earn $450 (gross) in a month – a trigger that has never been increased since its introduction in 1992 and is now lower than the dole. Drawdown of funds is prohibited (save in limited circumstances) over a working life which can exceed 40 years, and then superannuation savings have to last a retirement which may be a further 30 years or more.

These extremely long commitments by savers make superannuation policy change particularly sensitive.

What is grandfathering, and why is it so important for retirement planning?

‘Grandfathering’ means that transitional provisions continue to apply an old rule to certain existing scenarios, or certain individuals. ‘Grandfathering’ provisions continue to apply an old rule to some existing situations while a new rule will apply to all future cases. Frequently, the grandfathering exemption is limited; it may extend for a set time, or it may be lost under certain circumstances.

A retired Treasury officer, Terrence O’Brien, had written to The Australian newspaper on 11 May 2016 about the 2016 Budget’s superannuation measures. He said:

Past increases in superannuation taxation used to be grandfathered, so as not to disadvantage those who had responded in good faith to previous incentives to save for their retirement income. Grandfathering reflected the commitments that governments encouraged or compelled workers to undertake when locking their savings away for 40 or 50 years. …

Jack contacted Terry to seek elaboration of those claims. The conversations gave rise to an article for the Centre for Independent Studies titled ‘Grandfathering super tax increases’, and a series of submissions by Save Our Super to Treasury on exposure drafts of the legislation, and to Ministers, backbenchers, and the Senate committee that examined the Bills that have now become law.

Grandfathering has been used frequently, often for the purely pragmatic reason of gaining democratic support for a change that might otherwise be defeated.

In applications such as superannuation law, grandfathering gains an important moral dimension, and a further practical dimension. Morally, it honours legal commitments governments have made to citizens and on which citizens have lawfully based their affairs, while applying the new rules prospectively to citizens who have the flexibility to adapt to them. Practically, it is ideal for addressing fiscal or demographic challenges that are developing slowly. It can permit early action to prevent a problem worsening, without reducing the living standards of current retirees.

Save Our Super submissions noted that people had lawfully saved, planned and retired on the basis of legislated super rules introduced only a decade earlier, in the Costello Simplified Superannuation System reforms of 2007. They had been encouraged into depositing funds into super under the legislation of one set of rules, only to have those rules changed to their disadvantage after placing their funds irrevocably into the super system, and indeed after retirement in many cases.

Justice Asprey on grandfathering superannuation law changes

Although contemporary politicians seem to have forgotten, grandfathering significantly adverse changes in superannuation law has a valuable 40-year history in Australia. Prime Minister Whitlam commissioned Justice Kenneth Asprey to propose tax reform through a Taxation Review Committee that reported in 1975. One important focus of Justice Asprey was exploring how to make superannuation serve retirement income objectives more effectively, with minimum disruption to life savings plans. He offered five timeless insights in Chapter 21 of the Asprey Report, officially titled the Taxation Review Committee Full Report (released on 31 January 1975):

  • 21.9. Finally, and most importantly, it must be borne in mind that the matters with which the Committee is here dealing involve long-term commitments entered into by taxpayers on the basis of the existing taxation structure. It would be unfair to such persons if a significantly different taxation structure were to be introduced without adequate and reasonable transitional arrangements. . . .
  • 21.61. . . . Many people, particularly those nearing retirement, have made their plans for the future on the assumption that the amounts they receive on retirement would continue to be taxed on the present basis. The legitimate expectations of such people deserve the utmost consideration. To change suddenly to a harsher basis of taxing such receipts would generate justifiable complaints that the legislation was retrospective in nature, since the amounts concerned would normally have accrued over a considerable period—possibly over the entire working life of the person concerned. . . .
  • 21.64. There is nonetheless a limit to the extent to which concern over such retrospectivity can be allowed to influence recommendations for a fundamental change in the tax structure. Pushed to its extreme such an argument leads to a legislative straitjacket where it is impossible to make changes to any revenue law for fear of disadvantaging those who have made their plans on the basis of the existing legislation. . . .
  • 21.81. . . . [I]t is necessary to distinguish legitimate expectations from mere hopes. A person who is one day from retirement obviously has a legitimate expectation that his retiring allowance or superannuation benefit which may have accrued over forty years or more will be accorded the present treatment. On the other hand, it is unrealistic and unnecessary to give much weight to the expectations of the twenty-year-old as to the tax treatment of his ultimate retirement benefits.
  • 21.82. In theory the approach might be that only amounts which can be regarded as accruing after the date of the legislation should be subject to the new treatment. This would prevent radically different treatment of the man who retires one day after that date and the man who retires one day before. It would also largely remove any complaints about retroactivity in the new legislation. . . .

Source: The Taxation Review Committee Full Report (31 January 1975), Chapter 21: Income Taxation in Relation to Superannuation and Life Insurance.

While there was little immediate application of the recommendations from the Asprey Report, it subsequently steered Australian tax reform for some 30 years in several key areas. When Treasurer Keating radically increased the tax on superannuation lump sum payments in 1983, he succeeded by applying the Asprey principles exactly: he ensured the ten-fold increase in tax on a lump sum benefit applied only to those dollars of the lump sum saved after the change; any savings pre-dating the change and the earnings on them continued to be taxed under the more concessional rules applying when they were saved. There have since been many other examples of the use of the Asprey grandfathering principles to adverse changes in both superannuation and the Age Pension (for details of these examples, see Terry O’Brien’s article, Grandfathering super tax increases https://www.cis.org.au/app/uploads/2016/08/32-3-obrien-terrence.pdf .

The frequent recourse to grandfathering significantly adverse policy changes, over more than 40 years, has set the reasonable expectations of citizens for how any necessary changes should be made. It is the violation of those expectations that helps explain the vociferous opposition many super savers have expressed to the Coalition Government, and to Save Our Super.

Certain July 2017 super changes are retrospective

As recently as February 2016, Treasurer Morrison seemed to understand the importance of grandfathering and the detrimental effect of retrospective changes. In his speech to the SMSF Association 2016 National Conference in February 2016, he said:

One of our key drivers when contemplating potential superannuation reforms is stability and certainty, especially in the retirement phase. That is good for people who are looking 30 years down the track and saying is superannuation a good idea for me? If they are going to change the rules at the other end when you are going to be living off it then it is understandable that they might get spooked out of that as an appropriate channel for their investment. That is why I fear that the approach of taxing in that retirement phase penalises Australians who have put money into superannuation under the current rules – under the deal that they thought was there. It may not be technical retrospectivity but it certainly feels that way. It is effective retrospectivity, the tax technicians and superannuation tax technicians may say differently. But when you just look at it that is the great risk.

Source: Address to the SMSF 2016 National Conference, Adelaide, 18 February 2016 (emphasis added).

In Save Our Super’s view, the five Asprey principles remain the best practical guide to how to introduce any necessary adverse changes in superannuation law while avoiding ‘effective retrospectivity’. They should have been used for the adverse measures in the 2016 Budget (with those changes taking effect from 1 July 2017), as Save Our Super submitted at the time. Even now, they should be applied to mitigate the destruction of trust and confidence in superannuation arising from those measures.

 

Jack Hammond, QC, founder of Save Our Super

Terrence O’Brien, B Econ (Hons), M Econ, former Treasury official

About the authors:

Jack Hammond: Save Our Super’s founder is Jack Hammond QC, a Victorian barrister for more than three decades. Prior to becoming a barrister, he was an Adviser to Prime Minister Malcolm Fraser, and an Associate to Justice Brennan, then of the Federal Court of Australia. Before that he served as a Councillor on the Malvern City Council (now Stonnington City Council) in Melbourne. During his time at the Victorian Bar, Jack became the inaugural President of the Melbourne community town planning group Save Our Suburbs.

 

Terrence O’Brien: Terrence O’Brien is a retired senior Commonwealth public servant. He is an honours graduate in economics from the University of Queensland, and has a master of economics from the Australian National University. He worked from the early 1970s in many areas of the Treasury, including taxation policy, fiscal policy and international economic issues. His most senior positions have also included several years in the Office of National Assessments, as senior resident economic representative of Australia at the Organisation for Economic Cooperation and Development, as Alternate Executive Director on the Boards of the World Bank Group, and at the Productivity Commission.”

For more information…

For more information about the July 2017 super changes, see the following SuperGuide articles:

This article was first published on 23 May 2017 on the superguide.com.au website. Click here to see the article.

Save Our Super’s Pillars of Principle

“Trust” and “Certainty” are Save Our Super’s “Pillars of Principle”. They are fundamental. Only with those two pillars of principle in place can a fair and sustainable Australian superannuation system survive and flourish.

Trust

First, a government should not undermine people’s trust in the superannuation system.

Trust is shattered when, for example, a Minister like Treasurer Morrison makes, and then shamelessly breaks, his promises regarding the government’s future tax treatment of superannuation.

Certainty

Secondly, a government should not undermine certainty in the superannuation system.

Certainty is lost when, for example, government changes long-standing superannuation rules and policies without notice nor consultation and without the use of appropriate grandfathering provisions.

For example, for over 100 years, since at least 1915, the pension account of superannuation fund earnings has been exempt from taxation. There are sound policy reasons for not taxing people in their pension phase. They are at their most financially vulnerable time, with none, or limited opportunity to increase lost capital or increase their paid worktime. Yet, as a matter of principle, both the Coalition and Labor will tax peoples’ pension phase account earnings.

Moreover, even where people have relied upon existing rules and policies, and those people will be significantly affected by proposed changes, neither the Coalition nor Labor will protect their superannuation savings by the use of appropriate grandfathering provisions.

Only after government has considered and applied those two pillars of principle, should government turn to see which, if any, changes should be made to the superannuation system, and then calculate their taxation effect.

Government should not start with the amount of tax they want to raise or save from superannuants, and then formulate their superannuation policies.

Save Our Super will vigorously advocate that the L/NP Coalition, Labor and other parliamentarians adopt those two pillars of principle in the application of their superannuation policies and legislation.

Save Our Super will not negotiate, horse-trade or bargain away the two fundamental pillars of principle, namely, “Trust” and “Certainty”. Their application is essential for good public policy and precedent.

Our Call For Action

Save Our Super calls for all Federal parliamentarians to promote and support superannuation policies and legislation which contain grandfathering provisions that maintain the previous entitlements of those Australians who will be significantly affected by major rule changes to the then existing superannuation provisions.

Save Our Super

Save Our Super is an apolitical community-based group which makes the public aware of the implications of the Coalition’s superannuation legislation and Labor’s superannuation policies.

Some of our supporters vote Liberal/National; some vote Labor; others vote for other parties or independents. But we are united in Our Call For Action by the Federal Parliament.

Load more