Superannuation (Continuing Contributions for Benefits) Regulations (Amendment) 1993 No. 348
EXPLANATORY STATEMENT
STATUTORY RULES 1993 No. 348
Issued by the authority of the Minister for Finance
Superannuation Act 1976
Superannuation (Continuing Contributions for Benefits) Regulations (Amendment)
The Superannuation Act 1976 (the 1976 Act) makes provision for and in relation to an occupational superannuation scheme for Commonwealth employees and for certain other persons.
Section 168 of the 1976 Act provides that the Governor-General may make regulations for the purposes of that Act.
Persons who are contributors to the scheme aWre referred to in the 1976 Act as eligible employees. The term 'eligible employee' is defined in subsection 3(1) of the 1976 Act. In accordance with paragraph (ea) of that definition, the term includes a person to whom section 14A applies.
Regulations under section 14A may specify classes of persons to which the section applies and may modify the Act in respect of such persons. The regulations for the purposes of section 14A are contained in the Superannuation (Continuing Contributions for Benefits) Regulations (the Principal Regulations).
The Superannuation Legislation Amendment Act 1992 (the Amending Act) amended the 1976 Act to provide for additional benefits in certain limited circumstances that are required as a result of the Superannuation Guarantee (Administration) Act 1992 and to provide for certain other changes to Commonwealth superannuation schemes.
The amending Regulations amend the Principal Regulations as a consequence of amendments to the 1976 Act by the Amending Act. The amendment contained in the Regulations is outlined in the Attachment.
The Amending Act amended the 1976 Act by inserting a new subsection 168(12) which provides that regulations for the purposes of section 14A made within a period of 12 months after that amendment may be expressed to have taken effect from and including the day on which that amendment was made.
In accordance with subsection 168(12) of the 1976 Act, the amending Regulations are taken to have commenced on 18 December 1992, the date of commencement of that subsection. The retrospectivity will not affect the rights of any person (other than the Commonwealth) in a manner prejudicial to that person, nor will it impose any liability on such a person. The amending Regulations are, therefore, in accord with the Acts Interpretation Act 1901 and do not contravene subsection 48(2) of that Act.
ATTACHMENT
SUPERANNUATION (CONTINUING CONTRIBUTIONS FOR BENEFITS) REGULATIONS (AMENDMENT)
THE AMENDMENT
The 1976 Act provides that a number of benefits paid under the Act, including the new Superannuation Guarantee top-up benefit provided for in Part VIAA (which was inserted in the 1976 Act by the Amending Act), are required in certain circumstances to be preserved in respect of the recipient in a preservation fund outside the CSS.
Item 1 of the Schedule to the Principal Regulations contains modifications of the 1976 Act in relation to certain persons who are re-appointed or re-employed and to whom section 14A of the Act applies. It provides, in effect, that there will be no break in the continuity of service for superannuation purposes, In order to achieve this, the item inserts a new section 124D into the 1976 Act which provides that any benefits paid to such a person under the Act are taken not to have been payable and the amount of any benefit so paid shall be repaid to the Commissioner for Superannuation.
The amendment substitutes a revised section 124D which would ensure that amounts preserved in respect of the recipient (as well as amounts paid to the recipient) are taken not to be, or to have been, payable, and must be repaid in order to permit the recognition of the reinstated employee's prior service.
In accordance with subsection 168(12) of the 1976 Act, the amendment is expressed as being taken to have commenced on 18 December 1992.
Overview
The Superannuation (Continuing Contributions for Benefits) Regulations (Amendment) 1993 were enacted to address the need for modifications to the existing superannuation regulations following amendments to the Superannuation Act 1976. The Superannuation Act 1976 established an occupational superannuation scheme for Commonwealth employees and certain other individuals, and it empowers the Governor-General to make regulations to facilitate the administration of the Act. These amending regulations were introduced in response to the Superannuation Legislation Amendment Act 1992, which introduced changes to the Act, including provisions for additional benefits and other modifications to Commonwealth superannuation schemes. The primary policy objective of these amendments is to ensure that there is no interruption in the continuity of service for superannuation purposes, particularly for employees who are re-appointed or re-employed. This is achieved by ensuring that benefits paid to such employees are treated as not having been payable and must be repaid to the Commissioner for Superannuation, thereby allowing the recognition of the reinstated employee's prior service. The amendments are expressed to have taken effect from 18 December 1992, aligning with the commencement date of the relevant subsection of the Superannuation Act 1976, and are designed to comply with the Acts Interpretation Act 1901, ensuring that the rights and liabilities of individuals other than the Commonwealth are not adversely affected.
Scope and Application
The Superannuation (Continuing Contributions for Benefits) Regulations (Amendment) 1993 No. 348 amends the existing regulations concerning the superannuation scheme for Commonwealth employees and other eligible persons under the Superannuation Act 1976. This amendment arises from changes introduced by the Superannuation Legislation Amendment Act 1992, which includes provisions for additional benefits and changes to Commonwealth superannuation schemes. The amending regulations modify the Principal Regulations to ensure they align with the updated provisions of the 1976 Act, particularly regarding the continuity of service and the preservation of benefits for employees who are re-appointed or re-employed. The amendment ensures that any benefits paid to such individuals are treated as never having been payable, and the amounts must be repaid to the Commissioner for Superannuation, allowing for the recognition of the reinstated employee's prior service. The retrospective effect of these regulations, taking them to have commenced on 18 December 1992, does not adversely affect the rights of any person other than the Commonwealth nor impose any liability on them.
Key Provisions
The Superannuation (Continuing Contributions for Benefits) Regulations (Amendment) 1993 No. 348 primarily focus on modifying the existing regulations to align with amendments made to the Superannuation Act 1976 (1976 Act) by the Superannuation Legislation Amendment Act 1992. These regulations, as detailed in the attachment, are designed to ensure that superannuation benefits for certain employees are preserved without interruption. Specifically, the amendment addresses the continuity of service for superannuation purposes, ensuring that superannuation benefits are correctly accounted for when an employee is re-appointed or re-employed. This is achieved by inserting a new section 124D into the 1976 Act, which specifies that any benefits paid to such individuals are considered not to have been payable and must be repaid to the Commissioner for Superannuation (section 124D).
These regulations impose specific obligations on the entities and individuals governed by the 1976 Act. Eligible employees who are re-appointed or re-employed must ensure that their superannuation benefits are correctly managed according to the new provisions. The Commissioner for Superannuation is tasked with the responsibility of administering these repayments and ensuring the proper management of superannuation funds. Employers and superannuation funds must comply with the new regulations by ensuring that any benefits paid to re-employed or re-appointed individuals are appropriately accounted for and repaid, as specified.
Breach of these regulations can result in significant consequences. The Superannuation Act 1976 provides for various offences and penalties for non-compliance. Employers or superannuation funds that fail to comply with the requirements to repay benefits as specified in the regulations could face financial penalties. The maximum penalties for such breaches are determined by the severity of the offence and can include fines up to the maximum prescribed by law. Additionally, individuals found to be in breach of these regulations may face civil or criminal consequences, depending on the nature and extent of the non-compliance. It is crucial for all parties involved to adhere to the regulations to avoid these potential penalties and legal repercussions.