EXPLANATORY STATEMENT

Issued by authority of the Minister for Finance and the Public Service

Superannuation Act 1976

Declaration under paragraph (j) of the definition of “eligible employee” included in subsection 3(1)

Superannuation (CSS) (Eligible Employees – Exclusion) Amendment Declaration 2019 (No. 1)

The Superannuation Act 1976 (the 1976 Act) makes provision for and in relation to the Commonwealth Superannuation Scheme (CSS) for Australian Government employees and for certain other persons.

Subsection 3(1) of the 1976 Act contains the definition of the term “eligible employee” that describes various classes of persons who are contributory members of the CSS (that is, CSS members).  Paragraph (j) of the definition enables the Minister, by legislative instrument, to declare a class of persons not to be CSS members.

The Superannuation (CSS) (Eligible Employees – Exclusion) Declaration 2003 (the Principal Declaration) identifies persons who are not CSS members and the circumstances where certain CSS members cease to be contributory members.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

Amending Declaration

The purpose of the Superannuation (CSS) (Eligible Employees – Exclusion) Amendment Declaration 2019 (No. 1) (the Amending Declaration) is to amend the Principal Declaration to specify the circumstances in which ASIC staff who continue to be CSS members upon transferring from Commonwealth employment under the Public Service Act 1999, to being employed directly by ASIC on 1 July 2019, as a result of amendments made to the Australian Securities and Investments Commission Act 2001 by the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018, cease CSS membership.

The details of the Amending Declaration are at Attachment A.

Legislation Act 2003

The Amending Declaration is a legislative instrument for the purposes of the Legislation Act 2003, and is subject to disallowance in accordance with subsection 3(1BD) of the 1976 Act.

Consultation

Section 17 of the Legislation Act 2003 specifies that rule-makers should consult before making legislative instruments.  Commonwealth Superannuation Corporation, the corporate trustee of the CSS, and ASIC have been consulted on the amendments contained in the Amending Declaration.

The Office of Best Practice Regulation (OBPR) was consulted and assessed that the changes are machinery in nature and do not require a Regulation Impact Statement (OBPR Reference Number 24781).

Commencement

The Amending Declaration commences on 1 July 2019.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Attachment B.

ATTACHMENT A

DETAILS OF THE AMENDING DECLARATION

Name

1.                    Section 1 provides that the name of the instrument is the Superannuation (CSS) (Eligible Employees – Exclusion) Amendment Declaration 2019 (No. 1) (the Amending Declaration).

Commencement

2.                      Section 2 provides for commencement of the instrument on 1 July 2019.  This is the same date that amendments to the Superannuation (CSS) (Eligible Employees – Inclusion) Declaration 2003, made by the Superannuation (CSS) (Eligible Employees – Inclusion) Amendment Declaration 2019 (No. 1), which provide for continuing CSS membership for certain ASIC employees, will commence.

Authority

3.                      Section 3 identifies the authority for the instrument as paragraph (j) of the definition of “eligible employee” in subsection 3(1) of the Superannuation Act 1976 (the 1976 Act).

Schedules

4.                      Section 4 provides that each instrument specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1—Amendments

Superannuation (CSS) (Eligible Employees – Exclusion) Declaration 2003

5.                      Schedule 1 makes amendments to the Superannuation (CSS) (Eligible Employees – Exclusion) Declaration 2003 (the Principal Declaration).

6.                      Subsection 3(1) of Part 1 of the Principal Declaration defines terms used in that instrument.  Item 1 of Schedule 1 to the Amending Declaration inserts a new definition of “ASIC” after the definition of “ARPC” in subsection 3(1).  Under the new definition, “ASIC” means the Australian Securities and Investments Commission established by the Australian Securities and Investments Commission Act 1989 and continued in existence by the Australian Securities and Investments Commission Act 2001.

7.                      Item 2 inserts new item 27 in the table in Schedule 1 to the Principal Declaration, which provides that CSS membership ceases for a person who has CSS membership as a result of paragraph 4(2)(s) of the Superannuation (CSS) Eligible Employees – Inclusion) Declaration 2003 on any of the following events:

• the person ceases to be an employee of ASIC;
• the person becomes a casual or temporary part-time employee of ASIC; and
• ASIC ceases to be a Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013.

8.                      For each of these events, new item 27 of Schedule 1 to the Principal Declaration also specifies when CSS membership is taken to have ceased.

        ATTACHMENT B