EXPLANATORY STATEMENT
STATUTORY RULES 1987 NO 290
ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE
SUPERANNUATION ACT 1976
SUPERANNUATION (CONTINUING CONTRIBUTIONS FOR BENEFITS) REGULATIONS (AMENDMENT)
Section 168 of the Superannuation Act 1976 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which the Act requires or permits to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act makes provision for and in relation to an occupational superannuation scheme for persons employed by the Commonwealth and for certain other persons. Persons eligible to contribute under the Act are referred to in the Act as “eligible employees”.
Subsection 3(1) of the Act defines the term “eligible employee”. In accordance with paragraph (ea) of the definition, the term includes a person to whom section 14A of the Act applies.
Subsection 14A(1) of the Act provides that section 14A applies to persons specified in paragraphs 14A(1)(a) to (e) other than those included in a class of persons specified in the regulations as a class of persons to whom the section does not apply. Paragraph 14A(1)(c) specifies a person who is performing duty in the Australian Public Service in pursuance of a re-appointment to that Service under section 63F, 63G or 66B of the Public Service Act 1922 or by virtue of having been deemed to have been so re-appointed in accordance with section 87Q of that Act. Paragraph 14A(1)(d) specifies a person (other than a person referred to in paragraph 14A(1)(c)) who has, or has been deemed to be, re-appointed or re-employed in circumstances similar to the circumstances in which a person could have been re-appointed to the Australian Public Service under section 63F, 63G or 66B of the Public Service Act 1922 or could have been deemed to have been re-appointed to the Australian Public Service in accordance with section 87Q of that Act.
Subsection 14A(3) of the Act provides that the regulations may make provision for modifying the Act, or a provision of the Act specified in the regulations, in the application of the Act or that provision to and in
relation to a person to whom section 14A applies, or has applied, or to and in relation to a prescribed class of persons in which the person is, or has been, included.
Paragraph 14A(1)(c) was inserted by section 43 of the Public Service Amendment Act 1978 and came into operation on 15 March 1981. Originally, however, the paragraph referred only to persons re-appointed to the Australian Public Service under section 63F, 63G or 66B of the Public Service Act 1922, reference to persons deemed to have been re-appointed under section 87Q of that Act having been inadvertently omitted. Reference to persons employed other than under the Public Service Act 1922 but re-appointed or re-employed, or deemed to have been re-appointed or re-employed, in circumstances similar to those envisaged by section 63F, 63G, 66B or 87Q of the Public Service Act 1922 was also inadvertently omitted.
Section 9 of the Superannuation Legislation Amendment Act (No 2) 1986 amended paragraph 14A(1)(c) of the Act and inserted paragraph 14A(1)(d) with effect from 15 March 1981 to rectify these omissions.
Regulations for the purposes of section 14A are contained in the Superannuation (Continuing Contributions for Benefits) Regulations (the Principal Regulations). Regulation 3 of the Principal Regulations sets out, as provided for in subsection 14A(1) of the Act, the classes of persons to whom section 14A does not apply. As provided for in subsection 14A(3), regulation 5 provides that the Act applies, subject to the modifications specified in the Schedule to the Principal Regulations, to certain specified classes of persons.
Paragraph 3(g) of the Principal Regulations provides that section 14A does not apply to a person re-appointed to the Australian Public Service under section 63F, 63G or 66B of the Public Service Act who was not an eligible employee immediately before both the earlier termination of employment to which the re-appointment relates and the re-appointment.
The Schedule to the Principal Regulations inserted Part VIIIA, comprising sections 124A, 124B and 124C, into the Act. The purpose of the provisions of Part VIIIA in relation to a person re-appointed under section 63F, 63G or 66B of the Public Service Act 1922 and to whom section 14A of the Act applies is to ensure that:
(a) the person is treated under the Act as if he or she had not ceased to be an eligible employee on the earlier termination of employment; and
(b) the period from the earlier termination of employment to the re-appointment is treated as a period of leave without pay during which the person is neither required nor permitted to contribute under the Act (and which therefore does not count as a period of contributory service for the purposes of the Act) unless the Minister otherwise directs.
Sections 124A and 124B contain the necessary provisions in relation to the period of leave without pay and section 124C requires the person to repay the amount of any benefit received as a result of the earlier termination of employment.
By way of example, section 63F of the Public Service Act 1922 provides for the re-appointment of a person who has been dismissed because of a conviction for a criminal offence and the conviction is quashed. Taken together, subsection 14A(1) of the Act and paragraph 3(g) of the Principal Regulations provide that such a person who was an eligible employee immediately before the dismissal is a person to whom section 14A applies. Sections 124A and 124B inserted by the Schedule to the Principal Regulations provide for the period from the time of the dismissal to the time of the re-appointment to be treated as a period of leave without pay during which the person is neither required nor permitted to contribute under the Act unless the Minister has otherwise directed. Section 124C provides for the person to repay the amount of any benefit received under the Act as a result of the dismissal.
The existing provisions of the Principal Regulations were deemed to have come into operation on 15 March 1981, the date from which the original paragraph 14A(1)(c) of the Act came into operation.
The Principal Regulations do not contain any provisions in relation to persons now referred to in paragraph 14A(1)(c) as having been deemed to have been re-appointed in accordance with section 87Q of the Public Service Act 1922 or in relation to persons referred to in paragraph 14A(1)(d) because, at the time the Principal Regulations were made, section 14A did not apply to them. Subsection 168(4) of the Act inserted by section 74 of the Superannuation Legislation Amendment Act (No 2) 1986 enables regulations made in relation to such persons within the period of 12 months after the commencement of the subsection (18 December 1986) to be expressed to have taken effect from a day not earlier than 15 March 1981.
The Regulations amend the Principal Regulations to include provisions in relation to persons referred to in paragraph 14A(1)(c) of the Act as having been deemed to have been re-appointed in accordance with section 87Q of the Public Service Act 1922 and in relation to persons referred to in paragraph 14A(1)(d) of the Act. The new provisions are along the lines of the existing provisions in relation to persons re-appointed under section 63F, 63G or 66B of the Public Service Act 1922. These amendments are expressed to have taken effect from 15 March 1981.
The Regulations are summarised in some detail in the Attachment.
ATTACHMENT
SUMMARY OF SUPERANNUATION (CONTINUING CONTRIBUTIONS FOR BENEFITS) REGULATIONS (AMENDMENT)
Regulation 1
This provides that the Regulations will be deemed to have taken effect from and including 15 March 1981.
Regulation 2
This provides that the term “Principal Regulations” means the Superannuation (Continuing Contributions for Benefits) Regulations.
Regulation 3
Regulation 3 of the Principal Regulations specifies, in accordance with subsection 14A(1) of the Superannuation Act 1976 (the Act), classes of persons to whom section 14A does not apply. This regulation amends regulation 3 to add new paragraphs 3(h), (j) and (k) to specify further classes of persons to whom section 14A does not apply and a new subregulation 3(2).
The new paragraph 3(h) specifies persons whose employment is reinstated in circumstances similar to those in which a person could have been re-appointed to the Australian Public Service under section 63F, 63G or 66B of the Public Service Act 1922 and who were not eligible employees for the purposes of the Act immediately before both the earlier termination or cessation of employment and the reinstatement. The new paragraph 3(j) specifies persons who have been deemed to have been re-appointed to the Australian Public Service in accordance with section 87Q of the Public Service Act 1922 and who were not eligible employees for the purposes of the Act on the day immediately before the day on which they were deemed to have been re-appointed. The new paragraph 3(k) specifies persons whose employment has been reinstated in circumstances similar to those in which a person could have been deemed to have been re-appointed to the Australian Public Service in accordance with section 87Q of the Public Service Act 1922 and who were not eligible employees:
(a) where the reinstatement took place on the day following the termination or cessation of employment -on the day the employment was terminated or ceased; or
(b) where (a) does not apply - both on the day the employment was terminated or ceased and the day before the reinstatement took place.
The new subregulation 3(2) provides that, in subregulation 3(1), the term ‘re-instated’ means re-appointed or re-employed, or deemed to be, or to have been, re-appointed or re-employed, as the case requires.
Regulation 4
Regulation 5 of the Principal Regulations provides, in accordance with subsection 14A(3) of the Act, that the modifications to the provisions of the Act specified in the Schedule to the Principal Regulations are to apply to certain persons specified in regulation 5. Regulation 4 substitutes a new regulation 5 which extends the persons to whom the modifications in the Schedule apply to include persons:
(a) deemed to have been re-appointed to the Australian Public Service in accordance with section 87Q of the Public Service Act 1922; or
(b) re-appointed or re-employed, or deemed to have been re-appointed or re-employed, in circumstances similar to those in which a person could have been re-appointed to the Australian Public Service under section 63F, 63G or 66B, or deemed to have been re-appointed to the Service in accordance with section 87Q, of the Public Service Act 1922.
Regulation 5
This regulation provides for clause 1 of the Schedule to the Principal Regulations (which inserted a new “Part VIIIA into the Act) to be omitted and for the new clause 1 set out in the Schedule to the Regulations to be substituted.
SCHEDULE
The Schedule to the Principal Regulations sets out the modifications to the provisions of the Act that are to apply to persons specified in regulation 5. Clause 1 of the Schedule inserts a new Part VIIIA (comprising sections 124A, 124B and 124C) into the Act in relation to certain persons to whom section 14A of the Act applies.
The Schedule to the Regulations sets out the new Part VIIIA of the Act to be substituted by regulation 5.
The new section 124A defines the terms “re-instated” and “relevant period” for the purposes of Part VIIIA. “Re-instated” is defined as meaning re-appointed or re-employed, or to be deemed to be, or have been, re-appointed or re-employed. “Relevant period” is defined as meaning:
(a) in the case of a person referred to in paragraph 124B(a), (b), (c), (e) or (g) - any period comprising the whole, or a part, of the period between the cessation or termination of the person’s employment and the re-instatement of that employment during which the person was not an eligible employee for the purposes of the Act; or
(b) in the case of a person referred to in paragraph 124B(d) or (f) - any period comprising the whole, or any portion, of the period commencing on the day on which the person is re-instated and ending on the day immediately before the day on which the person first reports for duty after re-instatement during which the person was not an eligible employee for the purposes of the Act.
The new section 124B replaces the existing section 124A in setting out the persons to whom Part VIIIA applies. Paragraphs 124B(a), (b) and (c) have the same meaning as the existing paragraphs 124A(a), (b) and (c).
New paragraphs 124B(d), (e), (f) and (g) are added to extend the categories of persons to whom Part VIIIA applies to include persons to whom section 14A of the Act applies and who:
(a) have been deemed to have been re-appointed to the Australian Public Service in accordance with section 87Q of the Public Service Act 1922 and are performing duty in the Service (paragraph 124B(d));
(b) have been, or been deemed to be, re-instated in their employment in circumstances similar to those in which a person could have been re-appointed to the Australian Public Service under section 63F, 63G or 66B of the Public Service Act 1922 and who:
(i) were eligible employees for the purposes of the Act immediately before the earlier termination or cessation of employment; and
(ii) were not eligible employees for the purposes of the Act during a period comprising the whole or any portion of the period that commenced on the termination or cessation of employment and ended on the re-instatement (paragraph 124B(e));
(c) have been, or have been deemed to be, re-instated in their employment in circumstances similar to those in which a person could have been deemed to have been re-appointed to the Australian Public Service in accordance with section 87Q of the Public Service Act 1922 and the reinstatement took effect on the day following the termination or cessation of the employment (paragraph 124B(f)); and
(d) not being persons referred to in (c) above, have been, or have been deemed to be, reinstated in their employment in circumstances similar to those in which a person could have been deemed to have been re-appointed to the Australian Public Service in accordance with section 87Q of the Public Service Act 1922 and who:
(i) were eligible employees at the time their employment was terminated or ceased; and
(ii) were not eligible employees for the purposes of the Act during a period comprising the whole or any portion of the period that commenced on the termination or cessation of employment and ended on the re-instatement (paragraph 124B(g)).
The new section 124C replaces, and has the same meaning as, the existing section 124B. It provides that a person to whom Part VIIIA applies shall be deemed to have been on leave without pay during a relevant period (as defined in section 124A) and that the period of leave shall be treated as a period to which section 51 of the Act applies.
The new section 124D replaces the existing section 124C. It provides that any benefits paid under the Act to the person concerned on termination or cessation of employment and in respect of any periods as an eligible employee during the period from termination or cessation to re-instatement shall be deemed not to have been payable and shall be repaid to the Commissioner for Superannuation. The amount of the benefits paid is then recoverable by the Commissioner under the provisions of section 156 of the Act.
The new section 124D differs from the existing section 124C in that it does not provide for the amount to be repaid within 2 months or such longer period as the Commissioner allows and does not provide for the amount to be paid to the Consolidated Revenue Fund and/or the Superannuation Fund as appropriate-. These provisions have not been continued as the general provisions of the Act in relation to the recovery of benefits that were not payable should apply in all cases.