It’s almost unimaginable: an Australian government proposes a law that would wipe out billions of dollars of employers’ entitlements.
Even more unimaginable: it does so on the basis of mistakes made by employees.
Yet right now a “Black Mirror” scenario lies before Australia’s federal parliament, in the form of the Morrison government’s “ominbus” industrial relations bill.
It proposes to extinguish entitlements owed to workers due to the mistakes made by employers. If passed, thousands of low-paid workers stand to lose billions of dollars in entitlements.
But that’s not even the worst thing that can be said of the bill. Worse still is the cynicism of its premise, the need to “fix” a problem that does not really exist.
To appreciate the depth of that cynicism, let’s recap the smoke and mirrors that have made “double-dipping” – the “horror scenario” of paying workers misclassified as casual employees both a 25% casual loading and paid leave entitlements – a hot-button issue.
Action is needed, the government claims, to address the “uncertainty” over employers incurring up to A$39 billion liabilities because of a Federal Court decision in May 2020.
Known as Rossato v Workpac, the case was unusual because the defendant, labour-hire company WorkPac – with the federal government’s support – funded the legal action against it by former mine worker Robert Rossato.
Rossato argued Workpac should have employed him as a permanent worker, rather than a casual worker, given his regular work roster. Workpac wanted the Federal Court to hear the case so its lawyers could try some arguments not used in Workpac’s unsuccessful defence of a 2018 court case (involving similar claims by fly-in-fly-out worker Paul Skene).
One of Workpac’s new defences was that Rossato (and workers in similar situations), even if misclassified as casual employees, had been paid a casual loading that should be “set off” against leave entitlements now accrued to them.
As Andrew Stewart summarised at the time: “In other words, if he was entitled to the benefits he claimed, he had already been paid for them.”
The Federal Court rejected this argument comprehensively.
In finding for Rossato, it ruled the casual loading paid any worker wrongly classified as a “casual employee” did not offset their separate entitlement to paid leave, as guaranteed to all permanent employees under the Fair Work Act.
Presumably the Federal Court must have had its reasons – and indeed it did. It laid them out in terms so clear it is hard to see where uncertainty arises.
The key distinction, said the court, was that casual loading and paid leave are two different kinds of entitlements.
The casual loading is a monetary entitlement supposed to compensate casual employees for the downsides of being casuals. Casual employees are meant to get 25% more than what a permanent employee would be paid, though research suggests in reality the loading is often neglible.
Does the loading cover casual employees not accruing annual and other leave? That is a matter of confusion, with differing approaches taken by courts and industrial tribunals. It some cases, the casual loading might be framed as compensating for the disadvantages of casual employment. Sometimes the loading might simply be paid due to prevailing “market rates”, as a wage premium to attract workers to jobs with few other benefits.
Whatever the circumstances, the Federal Court stressed that paid leave was not just another monetary entitlement when it came to permanent employees (including those wrongly classified as casuals).
As the judges put in their Rossato ruling, there is a “temporal dimension” to paid leave.
That is, it was an entitlement to an absence from work “in order to facilitate rest and recreation”. This made it qualitatively different to a cash entitlement.
So the Federal Court’s ruling was clear. There was no uncertainty. It saw no double-dipping. Its ruling did not require employers to pay twice. It required them to honour different types of employee entitlements.
Now the federal government is arguing what WorkPac (with the government’s backing) argued unsuccessfully to the court. Its industrial relations bill proposes making that losing argument the law.
If passed, courts will be required to deduct the value of any casual loading paid to misclassified casual employees from any claim they now have to compensation for not being being given the leave entitlements owed to permanent employees.
It creates a “back door” for employers to cash out paid leave obligations, leaving even more workers in the “employees without leave entitlement” category.
In doing so, the bill doesn’t just strip rights from wrongly classified casual workers. It undermines a fundamental principle in Australia’s national employment standards – reflected by the Fair Work Act having limits on cashing out paid leave.
These limits recognise leave entitlements aren’t just a personal benefit. The the whole community benefits; and 2020 has shown the community costs of failing to ensure all workers have paid leave entitlements.
Workers in risky jobs – such as aged care and meat processing – without sick leave or other entitlements have been clear transmission vectors for COVID-19 outbreaks such as that which enveloped Melbourne.
These limits have safeguarded low-paid workers signing away these rights out of financial need in lop-sided bargains.
If there’s only lesson one to be learned in the months since the Federal Court handed down its ruling, it’s this. Further impoverishing the value of leave entitlements is just about the last thing any COVID-inspired industrial relations reform should being doing.
The government’s Retirement Incomes Review paints an encouraging picture of the finances of retired Australians.
Most are at least as well off in retirement as they were while working, and most are more financially satisfied and less financially-stressed than Australians of working age.
But not all. The huge exception is retirees who do not own their own homes.
Whereas very few retired home owners are in poverty, most retired renters are.
Income poverty rates of retirees
So bad is the divide, the review found that even a 40% increase in Commonwealth Rent Assistance (the payment for pensioners) would reduce financial stress among renters by only 1%.
This is because rent assistance is low, covering only about 13% of the cost of renting.
Retirees who own their own homes don’t have to pay rent (and can still get the pension should their wealth be tied up in their home), and have a source of wealth that usually eclipses both their own superannuation and the wealth of renters.
Equivalised household wealth by asset type for retirees
Most people do not regard their home as a retirement asset, a view compounded by rules that exempt it from taxes and the pension assets test.
They are also reluctant to borrow against the value of their home using facilities such as the Pension Loans Scheme, for the same reasons they are reluctant to touch any of the wealth they retire with.
Data provided to the review by a large super fund shows its members typically die with 90% of what they had at retirement.
Another study finds age pensioners die with about 90% of what they had on retirement.
Partly the reasons are psychological. The review says words such as “investments”, “savings” and “nest eggs” imply the assets aren’t for living on.
Before compulsory super, employer-sponsored schemes usually paid “defined” benefits that could be measured in terms of income per year.
In the new system, designed to break the connection between workers and specific employers, benefits were “accumulated” in funds that could most easily be measured by the amount in them.
It is difficult for most people to see how a lump sum converts into income stream, and even more difficult when it depends on the interaction with the pension.
Another reason retirees hang on to what they had on retirement might be a genuine (if misplaced) concern about the unexpected.
In fact, health and aged care costs are heavily subsidised. Most people’s spending on them doesn’t increase significantly throughout retirement, yet many people seem unaware of how little of their own funds they will need.
Partly this is because of the complexity of the aged care and health care systems and how poorly they are explained.
Providing help to retirees who actually need it (mainly renters, many of them single women) and getting people with assets in the form of superannuation, savings and housing to actually use them rather than pass them on in bequests are the two key challenges identified in the report.
They are problems that boosting the rate of compulsory super contributions (as pushed for by the funds and presently leglislated) won’t help with.
They are set to become worse.
Although home ownership rates remain high for people over the age of 65, a growing number of Australians are not entering the housing market.
Over 15 years, the number of Australians over 65 who do not own their home outright is expected to double.
As the amount in super funds grows (boosted by the legislated increase in compulsory contributions, should it take place), Australians with super are going to have even more relative to what they need and even less need to make use of it.
The report makes no recommendations, and doesn’t suggest that the solutions are easy.
Widening the pension asset test to include the home would leave many homeowners worse off and could generate distrust and destabilise the system.
Getting more Australians into home ownership has proved difficult and could never be a solution for all Australians, in any case.
We already have in place rules that require retirees to draw down their super, but often they withdraw the minimum amount permitted and then reinvest much of it in another savings vehicle outside of super.
We’ve created a system where most have enough or more than enough to retire on and others get nothing like enough.
It would be a waste if the Friday’s mammoth Retirement Incomes Review was remembered only for its finding that increases in employers compulsory superannuation contributions come at the expense of wages.
Compulsory super contributions are set to increase in five annual steps of 0.5% of salary between 2021 and 2025.
These are much bigger increases than the earlier two of 0.25% in 2012 and 2013.
And the wage rises they will be taken from will be much lower. The latest figures released on Wednesday point to shockingly low annual wage growth of 1.4%.
Should each of the scheduled increases in employers compulsory super knock 0.4 points off wage growth (which is what the review expects) annual wage growth would sink from 1.4% to 1%.
Private sector wage would sink from 1.2% to 0.8%, in the absence of something to push it back up.
Because inflation will almost certainly be higher than 1%, it means the buying power of wages would go backwards, all for the sake of a better life in retirement.
The review presents the finding starkly. Lifting compulsory super contributions from 9.5% of salary to 12% will cut working-life incomes by about 2%.
And for what? It’s a question the review spends a lot of time examining.
The review dispenses with the argument that the goal of a retirement income system should be “aspirational”, or to provide people with higher income in retirement than they had in their working lives.
It finds that for retirees presently aged 65-74 the replacement rates for middle to higher income earners are generally adequate.
Many lower-income earners get more per year in retirement than they got while working.
If the increases in compulsory super proceed as planned, this will extend to the bottom 60% of the income distribution.
They’ll enjoy a higher standard of living in retirement than while working (and will enjoy a lower standard of living while working than they would have).
Most retirees die with most of what they had when they retired, leaving it as a bequest. They are reluctant to “eat into” their super and other savings because of concerns about possible future health and aged care costs, and concerns about outliving savings.
The review quite reasonably sees this as a betrayal of the purpose of government-supported super, saying
superannuation savings are supported by tax concessions for the purpose of retirement income and not purely for wealth accumulation
The pension does what super cannot. It provides a buffer for retirees whose income and savings fall due to market volatility, and for those who outlive their savings. 71% of people of age pension age get it or a similar payment. More than 60% of them get the full pension.
If there’s one key message of the review, it is this: it is the pension rather than super that matters for maintaining living standards in retirement, which is what the review was asked to consider.
It is also cost-effective compared to the growing budgetary cost of the super tax concessions.
The age pension costs 2.5% of GDP and is set to fall to 2.3% of GDP over the next 40 years as the super system matures and tighter means tests bite.
Treasury modelling prepared for the review shows that if more money is directed into super and away from wages as scheduled, the annual budgetary cost of the super tax concessions will exceed the cost of the pension by 2050.
A substantial proportion of Australians, about 30%, are financially worse off in retirement than while working, and they are people neither super nor the pension can help.
Mostly they are older Australians who have lost their jobs and cannot get new ones before they before eligible for the age pension or become old enough to get access to their super. Often they’ve left the workforce due to ill health or to care for others and are forced to rely on JobSeeker, which is well below the poverty line.
It’s much worse if they rent privately. About one quarter of retirees who rent privately are in financial stress, so much so that the review finds even a 40%
increase in the maximum Commonwealth Rent Assistance payment wouldn’t be enough to get them a decent standard of living in retirement.
The review was not asked to produce recommendations. Instead, while noting that much of the system works well, it has pointed to things that need urgent attention.
It finds that pouring a greater proportion of each pay packet into the hands of super funds is not the sort of attention needed, and in the present unusual circumstances could cost jobs as employers who can’t take the extra cost out of wages take it out of headcount.
The government will make a decision about whether to proceed with the legislated increase in compulsory super in its May budget, just before the first of the five increases due in July.
Peter Martin, Visiting Fellow, Crawford School of Public Policy, Australian National University
If you’re in a super fund, then, like it or not, you’ve got ethical decisions to make.
More than 10 million Australians have a superannuation account. Which means, effectively, more than 10 million of us are mini-shareholders with the capacity to influence future business decisions.
With that power, however small, comes responsibility. And nowhere more apparent than in relation to climate change.
Last month, the world’s biggest asset manager, BlackRock, surprised Australia’s biggest electricity producer and carbon dioxide emitter, AGL, by backing a motion that would have forced it to close its coal-fired plants earlier than planned.
The resolution at AGL’s annual general meeting failed, but when a global firm managing more than US$7 trillion in investors’ savings says it’s time to accelerate the exit from coal, it’s wise sit up and take notice.
Interestingly though, some of Australia’s biggest industry super funds, among them Cbus, Hesta and Aware, refused to support the motion, which was put forward by the Australasian Centre for Corporate Responsibility.
It’s been a pattern with industry super funds.
Rather than using their overt voting power to try to change corporate behaviour, or divest from companies altogether, they say they prefer to exert influence behind the scenes, through conversations in board rooms and executive suites.
Take, UniSuper, to which I contribute. It says it engages with companies “to encourage rapid decarbonisation of their operations and supply chains”.
UniSuper is one of only three industry funds to commit to achieving net zero carbon emissions across its portfolio by 2050 — the others are Cbus and HESTA.
UniSuper has joined eight other funds in divesting from companies that predominantly make their money from producing coal for electricity generation.
Yet if your retirement savings are in UniSuper’ default balanced option, then they are partly invested in Woodside, a company seeking to build a huge new gas hub on the Burrup Peninsula in Western Australia.
Woodside says the hub, which will operate for “decades into the future”, could process more gas than the entire volume extracted so far from another of its resource projects, the North West Shelf which began operations 36 years ago.
UniSuper’s annual report on climate risk also reveals smaller investments in gas producers Origin and Oil Search.
Experts say worldwide gas use needs to peak before 2030 in order to keep global warming below agreed levels.
It means UniSuper, and other big funds, are investing our collective retirement savings in firms whose corporate strategies threaten our collective future.
UniSuper cites AGL as an example why it stays with polluting companies. While it runs power stations fuelled by coal and gas, it also invests in renewable technology.
It says, if it were to divest, its AGL shares might be acquired by investors with less concern for the environment.
it can be in the best interests of the environment and society for the assets to be held by a responsible and reputable entity.
It’s a justification that could equally be used to defend running a gambling venue — if I didn’t install poker machines, someone else would, and at least I care for my customers.
(As it happens, UniSuper’s “balanced” option includes shares in Aristocrat Leisure, a leading maker of gaming machines.)
The justification sidesteps the question of whether the investment itself is defensible.
And it ignores the opposing argument — that divestment by a leading super fund can send a powerful signal to the market that a company is not properly addressing climate risk or developing an appropriate strategies for a carbon-constrained world.
Any company not doing these things is putting our savings at risk.
According to expert legal opinion, its directors might be breaching their obligations under the Corporations Act.
There are legitimate arguments to be had about the best way for super funds to push businesses to act more urgently on climate change, but as fund members, and the ultimate owners of our money, we need to make up our own minds and act accordingly.
To sit back and let others do it on our behalf is an abrogation of responsibility.
Superannuation may be compulsory, but we still have choices.
We can find out which companies our retirement savings are invested in, and swap to a more sustainable option in the same fund.
This can take some digging around, but as with UniSuper, some the information is available on the fund’s website or can be obtained by asking questions.
Or we can consider switching to a different fund altogether. There are websites that track and compare superannuation investments in fossil fuels.
For a range of reasons, it’s more difficult to switch to a new fund for UniSuper members.
But even where it isn’t possible, we can write to our funds, urging them to engage more actively on climate change. It’s easy to find the addresses. They are forever sending us emails.
It’s what they say they do with fossil fuel companies — engage them in conversations. We can tell them where we want our savings invested and how we want them to use their clout to influence company decisions and vote at shareholder meetings.
We can do this as individuals, and we can band together with like-minded fund members to speak with one voice.
With a combined A$2.9 trillion in assets, one fifth of which are invested in Australian companies listed on the stock exchange, super funds own a fair chunk of Australia’s most important companies.
It would be wrong for them not to take that responsibly seriously, just as it would be wrong of us not to take seriously what our savings are being used for.
It is well-established that recessions hit young people the hardest.
We saw it in our early 1980s recession, our early 1990s recession, and in the one we are now entering.
The latest payroll data shows that for most age groups, employment fell 5% to 6% between mid-March and May. For workers in their 20s, it fell 10.7%
The most dramatic divergence in the fortunes of young and older Australians came in the mid 1970s recession when the unemployment rate for those aged 15-19 shot up from 4% to 10% in the space of one year. A year later it was 12%, and 15% a year after that.
Unemployment rates 1971-1977
At the time, 15 to 19 years of age was when young people got jobs. Only one third completed Year 12.
What is less well known is how long the effects lasted. They seem to be present more than 40 years later.
The Australians who were 15 to 19 years old at the time of the mid-1970s recession were born in the early 1960s.
In almost every recent subjective well-being survey they have performed worse that those born before or after that period.
Subjective well-being is determined by asking respondents how satisified they are with their lives on a scale of 0 to 10, where 0 is totally dissatisfied and 10 is totally satisfied.
Australia’s Household, Income and Labour Dynamics survey (HILDA) has been asking the question since 2001.
In order to fairly compare the life satisfaction of different generations it is necessary to adjust the findings to compensate for other things known to affect satisfaction including income, gender, marital status, education and employment status.
Doing that and selecting the 2001, 2006, 2011 and 2016 surveys to examine how children born at the start of the 1960s have fared relative to those born earlier and later, shows that regardless of their age at the time of the survey, they are less satisfied than those born at other times.
Subjective wellbeing by birth cohort over four HILDA surveys
The consistency of lower levels of subjective well-being reported by the 1961-1965 birth cohort suggests something has had a lasting effect.
An obvious candidate is the dramatic increase in the rate of youth unemployment in at the time many of this age group were trying to get a job.
Over time, labour markets can recover but the scars of entering the labour market during a time of sudden high unemployment can be permanent.
But the education sector is maxed out and might not be able to perform the same trick for the third recession in a row.
Reinvigorating apprenticeships and providing cadetships for non-trade occupations might help. Otherwise the effects of the 2020 recession on an unlucky group of Australians might stay with us for a very long time.
Retirement villages – walled, gated and separate seniors’ enclaves – have had their day. The word “retirement” is redundant and engagement between people of all ages is high. That’s how participants in the Longevity By Design Challenge envisage life in Australia in 2050.
Their challenge was to identify ways to prepare and adapt Australian cities to capitalise on older Australians living longer, healthier and more productive lives. Their vision, outlined in this article, offers a positive contrast to much of the commentary on “ageing Australia”.
We have been repeatedly warned about a looming “crisis” when by 2050 one in four Australians will be 65 or older. They have been portrayed as dependent non-contributors, unable to take care of themselves. This scenario of doom is based on underlying assumptions that everyone over 65 wants to, can or should stop any kind of productive contribution to Australia.
What if these assumptions are wrong?
Australians’ average life expectancy is well into our 80s. That represents a 30-year longevity “bonus” since the Age Pension was introduced in 1909 when average life expectancy was 55.
Now, older people are healthier, working for longer – whether paid, volunteering, flexible, part-time, full-time or launching start-ups – or are in learning programs. By 2030 all of the baby boomers will have turned 65. At this time Generation X will start their contribution to the expanding older cohort.
Australian society will be better positioned to navigate this future if we make the most of the significant opportunities baby boomers present. They are living much longer, want to remain productive and engaged throughout their adult lives, and have a valuable cache of knowledge and skills.
One way to support economic and social participation is to reconsider the factors – physical, regulatory and financial – that determine how our buildings, suburbs and streets are organised.
Conventional urban development models rely on short-term development finance. It delivers suburban cities of individual houses with a need for private transportation. For many households (not just seniors) distance and lack of mobility are barriers to participation, resulting in isolation and loneliness.
The Longevity by Design Challenge brought new perspectives to preparing and adapting Australian cities to capitalise on the “longevity” phenomenon over coming decades. The challenge asked:
How do we best leverage the extra 30 years of life and unleash the social and economic potential of people 65+ to contribute to Australia’s prosperity?
In February 2020, 121 professionals (of all ages) from 60 built environment design and senior living organisations, along with several older people, took part in the challenge. They explored how baby boomers will change the landscape of living, learning, working and playing. Sixteen cross-disciplinary creative teams considered what longevity could look like in this new environment in which buildings and neighbourhoods are remade.
Good design begins with people. Together the participants concluded that designing for older people is actually “inclusive design”. Everyone wants the same things for a good life: autonomy and choice, purpose, family and friends, good health and financial security.
Teams were presented with one of three locations representing typical middle and outer suburbs. They were challenged to transform buildings and neighbourhoods to make the most of longevity opportunities.
The teams used principles of social and physical connectedness with the aim of increasing choices and improving circumstances for people at all stages of life. Key design priorities were “mix” – of places, uses, people and generations – and “heart”, which placed people at the centre of the narrative.
Suggested approaches included:
building walkable neighbourhoods that reduce distances between homes and services
converting typical house blocks to “super blocks” where multiple generations can live
Neighbourhoods could be retrofitted over 30 years. This would require changes to local government planning codes and innovations by the finance sector.
Other teams designed interconnected environments using links between natural, built and technological assets. They designed spaces to enable people over 65 to continue to make creative and productive contributions.
By creating inclusive infrastructure, such as closely connected living and learning “micro-neighbourhoods”, people of all ages remain the “heart” of the economic, social and cultural life of communities. A mobility “ecosystem”, including automated buses and electric ride sharing, could connect specialist knowledge and skill centres to local hubs.
While autonomous vehicle technology might provide more equal access to mobility and transportation, the designers warned that transforming conventional settings of houses and cars to walkable neighbourhoods and autonomous vehicles will be gradual. It depends on two things:
urban planning that ensures everyone has good access to safer transport alternatives rather than traffic-centric layouts
long-term equity financed by “future-focused” lenders.
In this model, lenders are less focused on short-term returns. Instead, they have a greater focus on quality design as a catalyst for more development. In a virtuous circle, attractive development that places people close to community activities and businesses generates greater “footfall”. That in turn creates more business opportunities that make financially viable communities.
The Longevity by Design Challenge identified a range of opportunities to create a vibrant “longevity” economy by including people of all ages. Small, incremental and affordable changes towards resilient and age-friendly communities can transform perceived burdens into real assets.
Planning communities to embrace, not exclude, people over 65 has all kinds of benefits for Australia.
Rosemary Jean Kennedy, Adjunct Associate Professor of Architecture and Urban Design, Queensland University of Technology and Laurie Buys, Professor, Director of Healthy Ageing Initiative, The University of Queensland
The government’s new retirement incomes review will need to work quickly.
On Friday Treasurer Josh Frydenberg said he expected a final report by June, just seven months after the issues paper he wants it to deliver by November.
The deadline is tight for a reason. In recommending the inquiry in its report on the (in)effeciency of Australia’s superannuation system this year, the Productivity Commission said it should be completed “in advance of any increase in the superannuation guarantee rate”.
In other words, in advance of the next leglislated increase in compulsory superannuation contributions, which is on July 1, 2021.
The next increase (actually, the next five increases) will hurt.
The last two, on July 1 2013 and July 1 2014, took place when wage growth was stronger. In 2013 wages growth was 3% per year.
And they were small – an extra 0.25 per cent of salary each.
The next five, to be imposed annually from July 1 2021, are twice the size: 0.5% of salary each.
If taken out of wage growth, they’ve the potential to cut it from its present usually low 2.3% per annum to something with a “1” in front of it, pushing it below the rate of inflation, for five consecutive years.
If we were going to do that (even if we thought the economy and wage growth could afford it) it would be a good idea to have a good reason why. After all, compulsory superannuation is the compulsory locking away of income that could otherwise be spent or used to pay down debt or saved through another vehicle, regardless of the wishes of the person whose income it is.
Fortunately, the new inquiry doesn’t need to do much work on this one.
For most of its life compulsory super hasn’t had an agreed purpose. At times it has been justified as a means of restraining wage growth, at times as means of restraining government spending on the pension, at times as means of boosting national savings.
In 2014, more than 20 years after compulsory super began, the Murray Financial System Review asked the government to set a clear objective for it, and two years later the government came up with one, enshrined in a bill entitled the Superannuation (Objective) Bill 2016.
The bill lapsed, but the objective at its centre lives on as the best description we’ve come up with yet of what compulsory super is for:
to provide income in retirement to substitute or supplement the age pension
Which raises the question of how much we need. For compulsory super, the answer is probably none. People who want more than the pension and their other savings can save more through voluntary super. People who don’t want more (or can’t afford to save more) shouldn’t.
Assuming for the moment that how much people need in retirement is relevant for determining how much compulsory super they need, the inquiry will need to examine what people need to live on in retirement.
The “standards” prepared by the Association of Superannuation Funds of Australia are loose. The more generous of the two allows for overseas travel every two or so years, A$163 per couple per fortnight on dining out, $81 on alcohol “or equivalent spent
with charity or church”.
It isn’t a reasonable guide to how much people need to live on, and certainly isn’t a reasonable guide for how much the government should intervene to make sure they have to live on. They are standards it doesn’t intervene to support while people are working.
And there’s something else. Super isn’t what will fund it. Most retirement living is funded outside of super, either through the age pension, private savings, or the family home (which saves on rent). Most 65 year olds have more saved outside of super than in it, and a lot more than that saved in the family home.
It’s a slight of hand to say that retirees need a certain proportion of their final wage to live on and then to say that that’s how much super should provide.
The best guess is that, although paid by employers in addition to wages, compulsory super comes out of what would otherwise have been their wage bill.
Treasury puts it this way:
Though compulsory superannuation guarantee contributions are paid by employers, wage setting generally takes into account all labour costs. As such, it is widely accepted that employees bear the cost of higher superannuation guarantees in the form of lower take home pay.
The inquiry will probably make its own determination. If it finds that extra contributions do indeed come out of what would have been pay rises, it will have to consider the tradeoff between lower pay rises (and they are already very low) and the compulsory provision of more superannuation in retirement.
It’d be tempting to think that the compulsory nature of compulsory superannuation meant that each extra dollar funnelled into it increased retirement savings by an extra dollar. But it doesn’t, in part because wealthy Australians who are already saving a lot have the option of offsetting it by saving less in other ways.
For them, the increase in saving isn’t compulsory.
For financially stretched Australians unable to afford to save (or for Australians at times in times life when they can’t afford to save) the compulsion is real, and unwelcome.
The inquiry will have to make its own assessment, updating Reserve Bank research which found in 2007 that each extra dollar in compulsory accounts added between 70 and 90 cents to household wealth.
Boosting private saving (at the expense of people who are unable to escape) is one thing. Boosting national savings (private and government) is another. The tax concessions the government hands out to support superannuation are expensive. The concession on contributions alone is set to cost $19 billion this year and $23 billion in 2022-23, notwithstanding some tightening up. It predominately benefits high earners, the kind of people who don’t need assistance to save.
On balance it is likely that the system does little for national savings, cutting government savings by as much as it boosts private savings. But because the question hasn’t been asked, not since the Fitzgerald report on national saving in 1993 shortly after compulsory super was introduced, we don’t know.
It’ll be up to the inquiry to bring us up to date.
Peter Martin, Visiting Fellow, Crawford School of Public Policy, Australian National University
Labor has accused Wilson of using a parliamentary inquiry into the policy to spearhead a partisan campaign against it.
Part of the controversy revolves around a website Wilson is promoting – stoptheretirementtax.com – that initially required people who wanted to register to attend public hearings for the inquiry to agree to put their name to a petition against the policy. Wilson described this as a “mistake” that has since been fixed.
But there’s another issue with the website that’s worth taking a look at: if it complies with privacy law.
Political parties are exempt from the usual privacy rules, so we need to know if stoptheretirementtax.com is a Liberal party website or government website. The answer has implications for whether privacy law may have been breached, and if the data collected can be used for political campaigning in the upcoming federal election.
Stoptheretirementtax.com was registered anonymously on October 31. While it’s a requirement of website registration for owners to be publicly listed, in this case a domain privacy service was used to hide those details.
By mid-November the site was being shared by a financial services company with their clients, who said that Wilson had sent the website details to them. In several tweets promoting the inquiry in November, Wilson didn’t mention the site.
In these tweets, Wilson identified himself as both the Liberal MP for Goldstein and the Chair of the Economics Committee.
By contrast, stoptheretirementtax.com doesn’t mention Wilson’s electorate or political party. The bottom of the site has the Australian coat of arms with the words “Chair of the House Economics Committee”. Wilson’s parliamentary contact details appear alongside a statement that reads:
Authorised by Tim Wilson MP, Chair of the Standing Committee on Economics.
The confusion around whether stoptheretirementtax.com is an official government website begins with the website’s domain name. It’s based on a slogan coined by Wilson Asset Management, a financial services company that is actively campaigning against Labor’s policy on franking credits. The site also uses a photograph the company has used in their campaign, and Wilson has said Wilson Asset Management were consulted in the site’s development.
Then there is the text, which reads:
At the next election your financial security will be on the ballot … Labor are attacking your full tax refund. After the election they want to scrap refundable franking credits. That will hit your security in retirement and risk pushing many vulnerable retirees below the poverty line.
Stoptheretirementtax.com is collecting personal information. Visitors who wish to send a submission to the inquiry or register to attend public hearings are required to provide their name, email address, mailing address and phone number.
Visitors who want to send a submission to the standing committee on economics are offered a box with pre-filled text. A small note reads: “feel free to edit, or write your own”. A second box invites visitors to share their story.
Design features such as the colouring of the text could be seen to discourage editing of the first box while directing people to the second, meaning many people who submit a response will likely end up including the pre-filled text in their submission.
When registering for the public hearings, users are offered two check boxes (pre-checked), which state:
I want to be registered for the petition against the retirement tax
I want to be contacted on future activities to stop the retirement tax.
Until Sunday, it was impossible to register for a hearing without also signing the petition. Tim Wilson has said this was an “error”. The required check box for hearings and the design of the submission boxes may in fact be a dark pattern – a use of design feature to manipulate users into making the decision the site owner wants.
On Monday, a page for the inquiry was added to the Australian Parliament’s website describing itself as the “the official page of the committee”. It states that submissions to the inquiry can be made via the Parliament’s submission system or by email. It also explains that “pre-registration is not required to participate” in the hearings.
Australian privacy is largely regulated by the Privacy Act and the Australian Privacy Principles it contains. Registered political parties are exempt, but stoptheretirementtax.com does not appear to come from a registered political party.
To assert it is campaign material from a registered political party at this stage would raise electoral law issues. The Commonwealth Electoral Act requires that registered political parties identify themselves in the authorisation statement on their political materials. Stoptheretirementtax.com has no such authorisation.
The Privacy Act does apply to government agencies, including ministers, departments and people:
holding or performing the duties of an appointment… made… by a Minister.
The Chair of a Standing Committee is “appointed by the prime minister”, making them an agency subject to the Australian Privacy Principles.
The Australian Privacy Principles requirements for government agencies include:
A failure to comply with the Australian Privacy Principles may put personal information at risk and can attract the attention of the Information Commissioner, who regulates privacy.
The Australian Law Reform Commission noted in 2008 that:
Ministers engaging in their official capacity are bound by the Privacy Act, while MPs engaging in political acts and practices are not.
A Committee Chair would likely be similarly bound only while acting in that capacity.
Some of the time, while acting in their capacity, they may be effectively exempt from the Privacy Act due to parliamentary privilege.
Section 16(2) of the Parliamentary Privileges Act reasserts a right of immunity going back to the Bill of Rights of 1688. It covers:
all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee.
That doesn’t mean the principles don’t apply, just that enforcing corrective action may be beyond the reach of the courts. Parliament has its own processes that could still be used to address concerns.
The usual rules, enforceable by the courts, may still apply in circumstances where a committee chair is acting in that capacity, but outside the business of the committee.
Advocacy activities, like running a petition or soliciting contact details for political action may not be something “for the purpose” or “incidental” to the business of a committee. In fact, publishing an overtly political website may itself step outside the protection – as it is the committee and its parliamentary work, not the activities of the chair per se, that attract the privilege.
The best resolution would be for Tim Wilson to take down the site (particularly in light of the new official site), pass to the Committee Secretariat any information they require (such as submissions), then delete all personal information he has collected through the stoptheretirementtax.com website.
A full disclosure of who data may have been shared with, where it was held and how it was secured would also help. If data has been disclosed to anyone other than the Parliamentary Committee, those who have been impacted should be informed. The Information Commissioner should be consulted for guidance and assistance.