Notice of disposal freeze

Records related to Cornwell-type superannuation claims

To all Commonwealth departments and agencies, all Commonwealth authorities, Commonwealth companies, other Commonwealth institutions and any other entity that holds Commonwealth records.

This document notifies Australian Government agencies, and other agents or people in possession of Commonwealth records, that I have extended and changed the application of the 'Post Cornwell superannuation case litigation – processing of additional claims'. The freeze was issued on 16 December 2010 and covers selected personnel and other records.

This notice of disposal freeze covers records which may be needed to manage claims made against the Commonwealth by people who allege they were given the wrong information about their eligibility to join a Commonwealth superannuation scheme. It applies until 31 December 2030.

The decision to extend and change the disposal freeze was made at the request of and in consultation with the Department of Finance, which is the agency responsible for managing Cornwell-type superannuation claims.

Background to Cornwell-type superannuation claims

A large number of claims have been made against the Commonwealth by people who allege they were given the wrong information about their eligibility to join a Commonwealth superannuation scheme. The claimants say that they relied on the wrong information and suffered financial loss as a consequence. These claims are generally referred to as Cornwell-type superannuation claims, following a decision by the High Court of Australia in one such claim made by Mr Cornwell.1

The claims typically relate to events that occurred between 1960 and 2000.

A more detailed description of the claims is provided in Schedule 3.

Purpose and effect of the disposal freeze

The purpose of this disposal freeze is to ensure the preservation of records relating to current and future Cornwell-type claims. These records are needed to protect the rights and entitlements of, and fulfil the obligations of, claimants, the Commonwealth and other parties.

It is likely that some of the records covered by this disposal freeze have been authorised for destruction under general and agency-specific records authorities issued by the National Archives of Australia. The purpose of this disposal freeze is to prevent any such destruction and to ensure that all relevant existing and future records are available for current and future claims.

This disposal freeze suspends the National Archives' permission to destroy any relevant records that could otherwise be legally destroyed under records authorities issued by the National Archives.

Authority

This action is taken pursuant to section 24(2)(b) of the Archives Act 1983 (Cth).

Records affected

This disposal freeze applies to all Commonwealth entities and other entities that are in possession of Commonwealth records. This includes statutory authorities and statutory companies that have ceased to be part of the Commonwealth, but which may still have possession or custody of Commonwealth records (including records of defunct or predecessor entities).

The disposal freeze covers the categories of records described in Schedule 1.

Records authorities relevant to records covered by this freeze include:

Note: Commonwealth agencies no longer need to apply to the Department of Finance to use General Records Authority (GRA) 31 to destroy hard copy files of digitised information relating to Cornwell-type superannuation claims. This requirement was formally rescinded by the Department of Finance on the 21 March 2019.

The National Archives' digitisation requirements must continue to be applied by agencies and entities digitising relevant records, including application of appropriate quality assurance processes as outlined in GRA 31.

In broad terms, this freeze covers:

  • employment records and superannuation records of current and former:
    • Australian Public Service and Defence Force staff;
    • other Commonwealth entity staff; and
    • Approved Authority staff (see the list in Schedule 2 for a non-exhaustive list of Approved Authorities for Superannuation Act purposes);
  • policy and administrative records relating to superannuation;
  • policy and administrative records relating to how staff of Approved Authorities were engaged.

The disposal freeze also covers control records which may identify relevant records such as registers of files, card and electronic indexes of files and records, metadata identifying specific records in databases and other digital business systems.

The disposal freeze covers records in all formats, including paper files and documents, microfilm and magnetic tapes, audio and visual recordings, photographs and records created and stored digitally (including information in relevant current and legacy databases and digital business systems).

All records in digital formats, including information in databases and other digital business systems, must be maintained with all the metadata necessary to support retrieval and access to authentic and reliable information.

Duration

The disposal freeze is in force from 1 January 2016 until 31 December 2030. Notification will be issued if it is necessary to further extend the disposal freeze.

Action required

Agencies and other agents or people in possession of Commonwealth records should:

  1. ensure that all staff responsible for records management are informed about this disposal freeze;
  2. review the records categories in Schedule 1 and conduct a risk assessment to:
    • determine if staff, contractors or records service providers have any records due or overdue for destruction that come within the scope of the disposal freeze;
    • check any records already proposed for destruction are not covered by the disposal freeze;
  3. identify and retain relevant existing and future records subject to the disposal freeze or apply a broader freeze on all records likely to contain relevant material.

Impact

The processing, reviewing, storage costs and licence fees arising from the implementation of this disposal freeze will be borne by the agencies or other agents or people who hold the records.

Inquiries

For inquiries about this disposal freeze, please contact the Agency Service Centre from the NAA website at naa.gov.au or (02) 6212 3610.

Issued by

Anne Lyons
Assistant Director-General
National Archives of Australia
15 December 2015

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This is an accurate reproduction of the authorised notice of disposal freeze content, created for accessibility purposes.

Schedule 1

Meaning of personnel files, superannuation files and other records of individuals

Where this disposal freeze refers to 'personnel, superannuation, workers compensation or other records of individuals', it applies to records for all Australian Public Service (APS), Defence Force, other Commonwealth entity and Approved Authority staff who were:

  • born after 1 January 1895; and
  • in such employment at any time between 1 January 1960 and 31 December 1999;
  • regardless of whether the employee was a permanent, temporary or exempt employee; is a current employee or a former employee; is living or deceased; or was employed under the Public Service Act or other legislation.

Categories of records subject to the disposal freeze

The categories listed below are most likely to contain relevant records.

1. Personnel files and other records of individuals relating to:

  • superannuation (including records about provision of information about superannuation (eg training, pamphlets, memos); eligibility to join; requests to join; applications to join (including application forms); certification of likelihood of future employment; acceptance into superannuation; contribution history; choices elections of superannuation scheme such as the Commonwealth Superannuation Scheme (CSS) or Public Sector Superannuation Scheme (PSS); receipt of benefits; and rollover or preservation of benefits;
  • commencement and cessation of employment;
  • service history;
  • salary history;
  • terms, conditions and benefits of employment;
  • supervisory responsibilities;
  • medical records prepared for superannuation purposes (but not including x-rays);
  • leave records (including leave cards, leave summaries, leave applications and leave approvals) which are held on personnel files;
  • records of disciplinary action or other performance issues which are held on personnel files;
  • claims or compensation for invalidity for work (including Comcare records); and
  • deductions from salary for private superannuation policies.

It is expected that, in most cases, documents of the type listed above will be kept on individual personnel files and that personnel files will need to be retained in their entirety. Where documents of the type listed above are kept separately to personnel files, those documents will also need to be retained.

It may be more convenient for agencies to implement a broader freeze on all records likely to contain relevant material than to identify only those records that are subject to the freeze and withhold them from destruction. For example, an agency could cease destruction of all personnel and workers' compensation records, rather than just ceasing destruction of records that come within the date ranges captured by this notice (referred to above).

2. Superannuation case files of individuals, including records relating to:

  • eligibility to join superannuation;
  • certification of likelihood of future employment;
  • joining superannuation, including requests and applications to join, processing of applications, acceptance into superannuation;
  • medical examinations for superannuation purposes (not including x-rays);
  • history of financial contributions;
  • choices or elections related to superannuation (eg CSS or PSS);
  • receipt, rollover or preservation of benefits;
  • estimates of value of benefits and different benefit types;
  • training or information sessions available to the individual.

Commonwealth superannuation is currently administered by Pillar Administration on behalf of the trustee, Commonwealth Superannuation Corporation (CSC). Superannuation records of individuals will be held by Pillar Administration, but documents within this category may also be among personnel files and agency records, such as files containing correspondence with the predecessors to Pillar Administration and CSC, which include:

  • Comsuper;
  • Retirement Benefits Office;
  • Australian Government Retirement Benefits Office (AGRBO);
  • Office of the Superannuation and Defence Forces Retirement Benefits Boards;
  • Superannuation Branch, Treasury;
  • Superannuation Fund Management Board (from 1930, the Superannuation Board);
  • Defence Force Retirement Benefit Section, Defence Division, Department of the Treasury.

3. Policy records, administrative records, delegations and instruments relating to superannuation

This is a broad category which covers all records that show how each Commonwealth entity and Approved Authority dealt with superannuation. It includes documents of each Commonwealth entity and Approved Authority relating to:

  • Dissemination of information about superannuation to employees (including at induction, terms and conditions booklets, forms, pamphlets, notices, in pay packets, etc);
  • Dissemination of information and training when the CSS was introduced in 1976 and when the PSS was introduced in 1990;
  • Training and instruction provided to staff (including personnel, human resources and industrial officers) in how to deal with superannuation matters, such as responding to staff enquiries about eligibility, processing applications to join superannuation, processing membership, dealing with staff exit from superannuation (including training sessions, manuals and guidance in how to complete forms);
  • Certification of likelihood of future service or permanent appointment for people who applied to join superannuation, including delegations of this function and policies relating to exercise of this delegation;
  • Superannuation processes:
    • within the Commonwealth; and
    • between the Commonwealth and Approved Authorities;
  • including processing applications to join superannuation, submission of forms, arrangement of medical examinations for superannuation, deduction of superannuation contributions from salary payments, remittal of contributions and exchange of questions and answers.

For all entities, it is likely that these records will be contained within human resources, personnel department and industrial officer policy, administrative and delegation files.

For entities with a central coordinating role relevant to superannuation – such as the Commonwealth Superannuation Corporation, the Australian Public Service Commission, the Treasury and the Department of Finance (and their predecessors) – it is likely that they will have a broad range of records in this category. Records which show how these central entities interacted with other entities are important in showing what information was available to staff within entities. For example, records which show the Australian Government Retirement Benefits Office circulated memos about eligibility for superannuation to all agencies, helps to assess whether or not it is likely that an employee was told the wrong thing about their eligibility for superannuation.

4. Policy and administrative records relating to staffing of Approved Authorities in the period 1 January 1960 to 31 December 1999

There were a large number of Approved Authorities for superannuation purposes (see list in Schedule 2). The Approved Authorities were staffed in a number of different ways:

  • some Approved Authorities were able to employ their staff directly (under the Approved Authority's establishing legislation). Where this happened, it was often a requirement that the Australian Public Service Commission or its predecessors had to approve the terms and conditions on which staff were engaged;
  • some Approved Authorities were staffed with people engaged under the Public Service Act. For example, this happened if staff were seconded or borrowed.

The aim of this category is to capture high level documents explaining how Approved Authorities were staffed and how staff were managed. This can be relevant in a claim to working out who employed the claimant and the representor.

It is likely that records in this category are held by the Australian Public Service Commission and by each Approved Authority.

It is also possible that records in this category are held by the portfolio agency (or its successor) from which functions and staff were transferred when an Approved Authority was established.

For example, the Capital Territory Health Commission (an Approved Authority) was created in 1975. The Commission could employ its own staff, but it also had staff employed under the Public Service Act. Records relating to these staffing arrangements might now be held by the ACT Government (which is the successor to the Capital Territory Health Commission) and by the Commonwealth Department of Health.

5. Records in categories 1 to 4 above which relate to ACT or NT entities, or to ACT or NT employees.

Many ACT Public Service (ACTPS) and Northern Territory Public Service (NTPS) employees in the relevant period were formerly Commonwealth employees whose employment was transferred to the Territories. It is likely that the employees' personnel files will contain records that document their Commonwealth employment.

Records still held by the Commonwealth that relate to entities which are now the responsibility of the Territories, to ACTPS employees who were formerly APS employees or to NTPS employees who were formerly APS employees are covered by this disposal freeze.

The Commonwealth will make separate arrangements with the governments of the ACT and the Northern Territory concerning records in categories 1 to 4 that those governments hold.

Schedule 2

List of Approved Authorities

This Schedule lists entities that have been 'approved authorities' for the purposes of the Superannuation Act 1922 (Cth), the Superannuation Act 1976 (Cth) or the Superannuation Act 1990 (Cth). Records of approved authorities are covered by this disposal freeze.

Each approved authority is listed under the name of the current Commonwealth Department or Territory Government that is the superior agency (or the most likely successor to the superior agency) for the approved authority.

It is possible that the superior agency or successor superior agency for an approved authority will change during the period of this disposal freeze. It is also possible that an approved authority's records may be held by one or more different entities. Some of these approved authorities ceased to exist many years ago and it is not always clear who might now hold relevant records.

The number of approved authorities is likely to increase during the period of this disposal freeze. Records of other approved authorities not listed below are still covered by the disposal freeze. Record holders can check with the Department of Finance if they need clarification as to whether an entity is an approved authority.

Not all approved authorities on this list will have Commonwealth records under the Archives Act 1983. However the Commonwealth seeks the cooperation of those approved authorities, superior agencies and successor superior agencies in retaining any existing records that relate to the matters covered by this freeze.

All current Commonwealth Departments or agencies, Commonwealth authorities and Commonwealth companies are subject to the disposal freeze, whether or not they were or are an approved authority for Superannuation Act purposes.

Attorney-General's Department

High Court of Australia

Law Courts Limited

Department of Agriculture and Water Resources

Australian Apple and Pear Board

Australian Canned Fruits Board

Australian Canned Fruits Corporation

Australian Dairy Produce Board

Australian Egg Board

Australian Fisheries Management Authority

Australian Honey Board

Australian Meat and Livestock Corporation

Australian Meat and Livestock Research and Development Corporation

Australian Meat Board

Australian Pork Corporation

Australian Wheat Board

Australian Wine and Brandy Corporation

Australian Wine Board

Australian Wool Board

Australian Wool Bureau

Australian Wool Corporation

Australian Wool Research and Promotion Organisation

Australian Tobacco Board

Cotton Research and Development Corporations

Dairy Research and Development Corporation

Dried Fruits Control Board

Fisheries Research and Development Corporation

Flax Commission

Forest and Wood Products Research and Development Corporation

Grains Research and Development Corporation

Horticultural Research and Development Corporation

Land and Water Resources Research and Development Corporation

Meat Research Corporation

National Registration Authority for Agricultural and Veterinary Chemicals

Pig Research and Development Corporation

Pork Promotion Committee

Rural Industries Research and Development Corporation

Sugar Research and Development Corporation

Wool Research and Development Corporation

Department of Communications and the Arts

Adelaide Symphony Orchestra Pty Ltd.

Australian Broadcasting Commission

Australian Broadcasting Corporation

Australian Film Commission

Australian Film Development Corporation

Australian Foundation for Culture and the Humanities Ltd

Australian Postal Corporation

Australian Telecommunications Corporation

Film Australia Pty Limited

Melbourne Symphony Orchestra

OTC Limited

Overseas Telecommunications Commission (Australia)

Queensland Orchestras Pty Limited

Screen Australia

Special Broadcasting Service

Sydney Symphony Orchestra Holdings Pty Limited

Symphony Australia Holdings Pty Ltd.

Tasmanian Symphony Orchestra Holdings Pty Limited

Telstra Corporation Limited

West Australian Symphony Orchestra Holdings Pty Ltd

Department of Defence

Aerospace Technologies of Australia Pty Ltd

Australian Defence Industries Pty Ltd

Board of Management of the Australian War Memorial

Trustees of the Services Canteens Trust Fund

University College, being the college established by the University of New South Wales within the Australian Defence Force Academy

Department of Education and Training

Australian Maritime College

Australian National Training Authority

Australian National University

Canberra Institute of the Arts

Council of the Canberra University College

National Training Board

Department of Employment

Australian Stevedoring Industry Authority

Construction Industry Development Agency

Department of Environment

NEPC Service Corporation

Department of Finance

Commonwealth Accommodation and Catering Services Limited

Commonwealth Funds Management Limited

Commonwealth Hostels Limited

Parliament House Construction Authority

Superannuation Fund Investment Trust

Department of Foreign Affairs and Trade

Australian Overseas Projects Corporation

Export Finance and Insurance Corporation

Export Payments Insurance Corporation

Australian Tourist Commission

Australian Trade Commission

Tourism Australia

Department of Health

Australian Hearing Services

Australian Institute of Sport

Australian Sports Commission

Australian Sports Drug Agency

Commonwealth Serum Laboratories Commission

Coselco Mimotopes Pty. Ltd

Health Services Australia Limited

Medibank Private Limited

Nuclear Safety Bureau

Private Health Insurance Administration Council

Private Health Insurance Complaints Commissioner

Department of Industry, Innovation and Science

Anglo-Australian Telescope Board

ANL Limited

Australian Atomic Energy Commission

Australian Coastal Shipping Commission

Australian Industry Development Corporation

Australian Marine Science and Technology Limited

Australian Nuclear Science and Technology Organisation

Commonwealth Scientific and Industrial Research Organization

Energy Research and Development Corporation

National Standards Commission

Snowy Mountains Engineering Corporation

Snowy Mountains Engineering Corporation Limited

Snowy Mountains Hydro-electricity Authority

Department of Infrastructure and Regional Development

Airservices Australia

Australian Airlines Limited

Australian Aluminium Production Commission

Australian Maritime Safety Authority

Australian National Airlines Commission

Civil Aviation Authority

Civil Aviation Safety Authority

Commonwealth Bureau of Roads

National Capital Development Commission

Department of Prime Minister and Cabinet

Aboriginal and Torres Strait Islander Commercial Development Corporation

Aboriginal Hostels Limited

Aboriginal Corporation of the National Aboriginal Conference

Aboriginal Development Commission

Advisory Council for Inter-government Relations

Australian Institute of Aboriginal Studies

Australian Institute of Multicultural Affairs

Indigenous Land Corporation

National Aboriginal Sports Foundation Aboriginal Corporation

Department of Social Security

Institute of Family Studies

The Treasury

Housing Loans Insurance Corporation

National Companies and Securities Commission

Schedule 3

Background to Cornwell superannuation claims and relevance of the documents and dates referred to in the disposal freeze

A large number of claims have been made against the Commonwealth by people who allege they were given the wrong information about their eligibility to join a Commonwealth superannuation scheme. The claimants say that they relied on the wrong information and suffered financial loss as a consequence. These claims are generally referred to as Cornwell-type superannuation claims, following a decision by the High Court of Australia in one such claim by Mr Cornwell.1

The Commonwealth is now dealing with a number of additional claims (including litigated, unlitigated and Act of Grace claims). New claims continue to be made.

Details of claims

The claims typically relate to events that occurred between 1960 and 2000 and involve:

  • a claimant alleging that they were told the wrong information about their eligibility to join a Commonwealth superannuation scheme;
  • one or more respondents who are alleged to have given the wrong information;
  • sometimes witnesses or other people connected with a claim are involved.

The claims are usually made by people who had a choice about whether to join a Commonwealth superannuation scheme. For many Commonwealth employees, it was compulsory to join superannuation. However, the following employees generally had a choice about whether to apply to join (membership criteria changed over time):

  • temporary (now 'non-ongoing') or exempt (for industrial staff) Public Service Act employees; and
  • employees of some Commonwealth authorities which were Approved Authorities for Superannuation Act purposes (a list of Approved Authorities is at Schedule 2).

Further information about eligibility for Commonwealth superannuation schemes is below.

Significance of dates within the disposal freeze

The disposal freeze contains some date ranges. The significance of the dates in the disposal freeze is as follows:

  • 'born in or after 1895' - people born in 1895 would have been age 65 (a common retirement age) in 1960. Most claims relate to events after 1960. People born in or after 1895 would have been of working age for at least some of the time since 1960. These people could be claimants, representors, witnesses or other people connected with claims. Even if these people are now deceased, their estate might make a claim.
  • 'in employment at any time between 1 January 1960 and 31 December 1999' - this is the period during which events giving rise to claims generally occurred.

Nature of documents required

The claimants, the Commonwealth and other parties need access to historical records of the type covered by this disposal freeze in order to deal with claims.
Claimants, representors and witnesses might have worked in any area of the Commonwealth or an Approved Authority during the relevant period. When a person moved between agencies, their personnel records usually moved with them. Therefore, it is necessary for all agencies to be covered by the disposal freeze, not just those workplaces which are known locations from which claims arise. Because of movements of staff between the APS and the Defence Force, the records of military personnel may contain relevant information.
Some examples of the relevance of categories of documents covered by the disposal freeze are set out in the table below. This is not an exhaustive description of the relevance of categories of documents.

Type of document

Example of relevance of type of documents

Individual personnel files of claimant
(Category 1 of disposal freeze)

Relevant to: whether the claimant was eligible for superannuation; whether the claimant would have applied for and been admitted to superannuation; calculating the value of the claim (if successful); whether the claim is commenced within the limitation period.

Superannuation records of claimant (Category 2 of disposal freeze)

Relevant to: whether the claimant would have been admitted to superannuation; calculating the value of the claim.

Individual personnel files and superannuation records of respondent
(Categories 1 and 2 of disposal freeze)

Relevant to: what the respondent knew about superannuation and whether the representation occurred; whether the respondent was someone the claimant was entitled to rely on.

Policy records such as dissemination of information about superannuation, training about superannuation and processing of applications to join superannuation
(Category 3 of disposal freeze)

Relevant to: what was known in a particular workplace about superannuation and, therefore, whether the representation occurred as alleged; what a particular workplace's practices were and, therefore, whether the claimant would have been admitted to superannuation.

Policy records relating to staffing of Approved Authorities
(Category 4 of disposal freeze)

Relevant to: whether claimants were eligible to join Commonwealth superannuation (there were different eligibility criteria for employees of the Commonwealth and employees of Approved Authorities); whether a representor was someone the claimant was entitled to rely on.

Eligibility for Commonwealth superannuation

Whether or not a person could join a Commonwealth superannuation scheme was governed by legislation and changed from time to time. The eligibility criteria often involved a period of prior service and certification of likelihood of a period of future service. For example, to be eligible to join the CSS in mid-1976, a temporary employee generally needed to have completed one year of prior service and be certified as likely to continue in employment for at least three years. A medical assessment was also required.
The main Commonwealth schemes and relevant sections regarding eligibility for temporary and exempt employees were as follows:

Scheme nameTimeframe and ActEligibility sections most relevant to claims

'1922 Act Scheme' and 'Provident Account Scheme'

Open to new members between 1922 and mid 1976.
Superannuation Act 1922 (Cth)

Subsections 4(4), 4(5) and 4(6) deem holders of statutory offices, persons employed other than in a permanent capacity and employees of Approved Authorities to be employees under the Act.

Commonwealth Superannuation Scheme (CSS)

Open to new members between mid-1976 and mid 1990
Superannuation Act 1976 (Cth)

Sections 11, 12, 13 and 14 concern requests by temporary employees, statutory office holders and Approved Authority employees to be treated as eligible employees.

Public Sector Superannuation Scheme (PSS)

Open to new members between mid-1990 and mid-2005
Superannuation Act 1990 (Cth)

Sections 7 and 8 concern elections by statutory office holders and temporary employees of the Commonwealth or Approved Authorities to become members of the PSS.

Further detail about eligibility provisions within each Commonwealth scheme is available on the Department of Finance website.
The Defence Force superannuation schemes have been:

  • Defence Force Retirement and Death Benefit Scheme (DFRDB Scheme) which was open to new members between 1973 and 1991 (Defence Forces Retirement Benefits Act 1948 (Cth) and Defence Force Retirement and Death Benefits Act 1973 (Cth)).
  • Military Superannuation Benefit Scheme (MilitarySuper) which was open to new members from 1991 (Military Superannuation and Benefits Act 1991 (Cth)).

1Cornwell v the Commonwealth of Australia [2005] ACTSC 14 (4 March 2005); appeal - Commonwealth of Australia v Cornwell [2006] ACTCA 7 (8 May 2006); appeal from the ACT Supreme Court - Commonwealth of Australia v Cornwell (2007) 229 CLR 519 (20 April 2007).

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