EXPLANATORY STATEMENT

Issued by authority of the Minister for Finance

Superannuation Act 1976

Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021 made under paragraph (j) of the definition of ‘eligible employee’ included in subsection 3(1) of the Superannuation Act 1976.

The Superannuation Act 1976 (1976 Act) establishes and makes provisions for, and in relation to, the Commonwealth Superannuation Scheme (CSS) for Australian Government employees and 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. Paragraph (j) of the definition of ‘eligible employee’ in subsection 3(1) of the 1976 Act enables the Minister for Finance, by legislative instrument, to declare a class of persons not to be an eligible employee. The Superannuation (CSS)(Eligible Employees – Exclusion) Declaration 2003 (the Principal Declaration) is an instrument made by the Minister under this paragraph.

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.

The Minister for Finance has made an instrument to amend the Principal Declaration being the Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021. This instrument is referred to as the Amending Declaration in this Statement.

Amending Declaration

The Principal Declaration provides for the exclusion of Federal Magistrates of the Federal Magistrates Court from eligibility to be an ‘eligible employee’ of the CSS, that is a contributory member, in respect of their appointment. On 12 April 2013 the Federal Magistrates Court was renamed the Federal Circuit Court of Australia under the Federal Circuit Court of Australia Act 1999, and judicial officers of this court became Judges of the Federal Circuit Court. Judges of the Federal Circuit Court are excluded under the Principal Declaration through the operation of paragraph 25B(1)(a) of the Acts Interpretation Act 1901.

On 1 September 2021 the Federal Circuit Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the Family Court) will be brought together under the Federal Circuit and Family Court of Australia Act 2021 into a combined administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). The FCFC will comprise two divisions:

• the Federal Circuit and Family Court of Australia (Division 1) – a continuation of the Family Court; and
•    the Federal Circuit and Family Court of Australia (Division 2) (‘FCFC (Division 2)’) – a continuation of the Federal Circuit Court.

The Amending Declaration updates the Principal Declaration by replacing references to Judges of the Federal Circuit Court with references to Judges of the FCFC (Division 2) to ensure that the exclusion in respect of these officers continues under the new arrangements.

Details of the Amending Declaration are at Attachment A.

Legislation Act 2003

The Amending Declaration is a legislative instrument. Although regulations made for the purpose of paragraph 44(2)(b) of the Legislation Act 2003 exempt superannuation instruments from disallowance, the Amending Declaration is subject to disallowance in accordance with subsection 3(1BD) of the 1976 Act.

Consultation

The Office of Best Practice Regulation (OBPR) was consulted (OBPR ID 44179). A Regulation Impact Statement was not prepared as the instrument is machinery in nature.

Commencement

Sections 1 to 4 and anything else in the Amending Declaration not elsewhere covered by the table set out in section 2 of that instrument commences the day after that instrument is registered. Schedule 1 of the Amending Declaration commences immediately after the commencement of section 2 the Federal Circuit and Family Court of Australia Act 2021.

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 (Judges) Declaration 2021.

Commencement

2.                      Section 2 sets out the commencement provision for the amendments contained in the Amending Declaration. Item 1 of the table set out in subsection 2(1) provides that sections 1 to 4 and anything in the instrument not elsewhere covered by the table commences the day after the Amending Declaration is registered on the Federal Register of Legislation. Item 2 of the table set out in subsection 2(1) provides that Schedule 1 of the Amending Declaration commences immediately after the commencement of section 2 of the Federal Circuit and Family Court of Australia Act 2021.

3.                      The note under the table indicates that the table relates only to the provision of the Amending Declaration as originally made and that it will not be amended to deal with any later amendments to the Amending Declaration.

4.                      Subsection 2(2) provides that any information in column 3 of the table is not part of the instrument and that information may be inserted in this column, or information in it may be edited, in any published version of the instrument.

Authority

5.                      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.

6.                      Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the relevant Schedule. It also provides that any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

7.                      Item 1 of Schedule 1 repeals paragraph 7(1)(m) and substitutes a new paragraph 7(1)(m) in its place. This replaces the exclusion in respect of Federal Magistrates of the Federal Magistrates Court with an exclusion applying to persons who hold office as a Judge of the Federal Circuit and Family Court of Australia (Division 2).

ATTACHMENT B