EXPLANATORY STATEMENT
STATUTORY RULES 1990 NO. 180
ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE
SUPERANNUATION ACT 1976
SUPERANNUATION (ELIGIBLE EMPLOYEES) REGULATIONS (AMENDMENT)
The Superannuation Act 1976 (the Act) provides for the current superannuation scheme for Commonwealth employees. Persons eligible to contribute under the Act are referred to in the Act as “eligible employees”.
The Superannuation Act 1990 provides for a new superannuation scheme for Commonwealth employees which is to come into operation on 1 July 1990. Eligible employees are to have the option of remaining eligible employees or of transferring to the new scheme.
Section 168 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that the Act requires or permits to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Those persons required or eligible to contribute under the Act include those officers and employees for the purposes of the Public Service Act 1922, other persons employed by the Commonwealth and persons employed by an approved authority, who are not members of the new scheme. The Northern Territory of Australia (NT) is an approved authority for the purposes of the Act.
The definition in the Act of the term eligible employee provides that certain classes of persons may be excluded by regulation from becoming, or remaining, eligible employees. The classes of persons so excluded are prescribed in the Superannuation (Eligible Employees) Regulations (the Principal Regulations).
Paragraph 4(t) of the Principal Regulations provides in effect that most persons who become NT employees or statutory office holders on or after 1 October 1986 may
not become or remain eligible employees. This provision was included in the Regulations to ensure that the Northern Territory Government and Public Authorities Superannuation Scheme (NTGPASS), which commenced on 1 October 1986, became the main superannuation scheme applying to NT employees from that date.
On 1 July 1990, certain Commonwealth employees who are staff of the Australian Legal Aid Office will be offered employment by the Northern Territory in accordance with the terms of an arrangement made between the Commonwealth and the Northern Territory under the Commonwealth Legal Aid Act 1977. In accordance with that arrangement those eligible employees who become employed by the Northern Territory are to be given the option of remaining eligible employees or of ceasing and becoming members of NTGPASS.
Amendment of paragraph 4(t) of the Principal Regulations is necessary to permit those eligible employees who wish to remain eligible employees to do so.
The Regulations amend paragraph 4(t) of the Regulations to give effect to this intention. The opportunity has also been taken to include a number of minor drafting alterations to the Regulations. Details of the amendments are outlined in the attachment.
The amendments will come into operation on 1 July 1990, being the date of transfer of the legal aid functions to the Northern Territory.
ATTACHMENT
SUPERANNUATION (ELIGIBLE EMPLOYEES) REGULATIONS
Regulation 1
This provides for the Regulations to commence on 1 July
Regulation 2
This provides for various amendments to regulation 4 of the Superannuation (Eligible Employees) Regulations (the Principal Regulations) which specifies the classes of persons who are not to be eligible employees.
Paragraphs (a), (b) and (c) make amendments to paragraph 4(t) of the Principal Regulations to update the drafting style of the provisions.
Paragraph (d) amends paragraph 4(t) of the Principal Regulations to ensure that persons who become Northern Territory (NT) employees on 1 July 1990 because of the transfer of the Commonwealth’s legal aid functions in the NT to the control of the NT Government are not automatically excluded from remaining eligible employees. Those transferees who choose to join the Northern Territory Government and Public Authorities Superannuation Scheme (NTGPASS) will cease to be eligible employees by the operation of the existing paragraphs 4(a) or 4(aa) of the Principal Regulations.
Paragraph (d) also clarifies the intention of the Principal Regulations that persons receiving invalidity pensions under the Act or the Superannuation Act 1922 who become employed by the NT are not automatically excluded from remaining eligible employees.
Paragraphs (e), (f) and (g) make drafting amendments to regulation 4(u) of the Principal Regulations also intended to update the style of that provision. Paragraph 4(u) relates to persons who were NT employees but not eligible employees at the time of the commencement of the NTGPASS.
Overview
The Superannuation (Eligible Employees) Regulations (Amendment) 1990, issued under the authority of the Minister for Finance, was enacted to address the legislative gap in the Superannuation Act 1976 concerning the superannuation eligibility of certain Commonwealth employees transferring to the Northern Territory government. This amendment was necessary due to the transfer of the Commonwealth's legal aid functions to the Northern Territory on 1 July 1990, as per an arrangement under the Commonwealth Legal Aid Act 1977. The objective of these amendments was to ensure that eligible employees transferring to the Northern Territory government could retain their eligibility under the existing superannuation scheme, rather than being automatically enrolled in the Northern Territory Government and Public Authorities Superannuation Scheme (NTGPASS). The regulations amend the existing Principal Regulations to exclude certain classes of persons from being deemed ineligible for the superannuation scheme, thereby providing flexibility for those employees who wish to remain eligible employees.
Scope and Application
The Superannuation (Eligible Employees) Regulations (Amendment) under the Superannuation Act 1976 applies to eligible employees of the Commonwealth, including officers and employees defined under the Public Service Act 1922 and persons employed by the Commonwealth or an approved authority. Specifically, the amendment targets eligible employees who transition to Northern Territory employment on or after 1 July 1990 due to the transfer of the Commonwealth’s legal aid functions to the Northern Territory, as per the arrangement under the Commonwealth Legal Aid Act 1977. These employees are granted the choice to remain eligible employees or join the Northern Territory Government and Public Authorities Superannuation Scheme (NTGPASS). The amendment excludes certain classes of persons from eligibility, as defined in the Superannuation (Eligible Employees) Regulations, with particular reference to those becoming Northern Territory employees or statutory office holders on or after 1 October 1986, unless they choose to remain eligible employees under the new scheme. The regulations will come into operation on 1 July 1990, aligning with the transfer date of the legal aid functions to the Northern Territory.
Key Provisions
The Superannuation (Eligible Employees) Regulations (Amendment) under the Superannuation Act 1976 and the Superannuation Act 1990 make significant changes to the eligibility criteria for Commonwealth employees under the superannuation scheme. Regulation 1 ensures that these amendments take effect on 1 July 1990, aligning with the transfer of legal aid functions from the Commonwealth to the Northern Territory. Regulation 2 details specific alterations to the Principal Regulations, particularly focusing on updating the drafting style and clarifying the eligibility of certain classes of persons.
The main operative sections of these regulations, particularly Regulation 4, outline the classes of persons who may not be eligible employees. Amendments to paragraph 4(t) of the Principal Regulations are crucial as they update the eligibility criteria for certain Northern Territory (NT) employees. Specifically, employees who transition from Commonwealth service to NT employment on or after 1 July 1990 due to the legal aid functions transfer are now allowed to remain eligible employees if they choose. This change was necessary to provide these employees with the option to continue with their existing superannuation arrangements rather than automatically transferring to the Northern Territory Government and Public Authorities Superannuation Scheme (NTGPASS).
The obligations imposed by these regulations on the parties involved are primarily to ensure compliance with the updated eligibility criteria. Eligible employees who become NT employees on 1 July 1990 must be informed of their options to either remain eligible employees or join NTGPASS. The NT Government and the Commonwealth must coordinate to facilitate this transition smoothly. Additionally, the regulations require that employees who opt to remain eligible employees continue to contribute to their superannuation accounts in accordance with the Act's provisions.
The regulations do not explicitly outline specific offences, penalties, or civil/criminal consequences for breach. However, non-compliance with the eligibility criteria could potentially result in legal challenges or disputes regarding superannuation entitlements. Employers, including the NT Government, must ensure that they follow the regulations strictly to avoid any legal repercussions. If an employee is incorrectly classified as ineligible for superannuation benefits due to a breach of these regulations, they may have grounds for legal action to rectify the situation and claim their entitlements.