EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO 85
ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE
SUPERANNUATION ACT 1976
SUPERANNUATION (ELIGIBLE EMPLOYEES) REGULATIONS (AMENDMENT)
The Superannuation Act 1976 (the Act) provides a contributory superannuation scheme for Commonwealth employees. Persons eligible to contribute under the Act are referred to in the Act as “eligible employees”.
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.
Subsection 3(1) of the Act defines the term “eligible employee”. In accordance with paragraph (j) of the definition, the term does not include a person included in a prescribed class of persons. Thus, certain classes of persons may be excluded by regulation from becoming, or remaining, contributors. The classes of persons so excluded are prescribed in the Superannuation (Eligible Employees) Regulations (the Regulations).
The definition of “eligible employee” in subsection 3(1) of the Act includes, in paragraph (d), a person who is the holder of a statutory office and is specified in a direction under subsection 14(1) of the Act in relation to that office and, in subparagraph (e)(ii), a person who is the holder of a full-time statutory office and who, immediately before the commencement of his appointment was an eligible employee by virtue of a previous application of the definition. A “statutory office” is defined in subsection 3(1) of the Act to mean an office established by an Act.
The Australian Capital Territory will be established as a body politic under the Crown in accordance with section 7 of the Australian Capital Territory (Self-Government) Act 1988 on a day to be fixed by proclamation.
Section 8 of the Australian Capital Territory (Self-Government) Act 1988 provides that there shall be a Legislative Assembly of the Australian Capital Territory consisting of 17 members. In accordance with subsequent provisions, the members of the Assembly are to appoint from amongst their number a Chief Minister, Presiding Officer and Deputy Presiding Officer and the Chief Minister is to appoint three Ministers. It is not intended or appropriate that the members of the Assembly (including those appointed to the Offices referred to above) should be required or eligible to contribute under the Act.
The Regulation contained in the Statutory Rule amends the Principal Regulations by inserting a new paragraph 4(zf) to prescribe as a class of persons for the purposes of paragraph (j) of the definition of “eligible employee” in subsection 3(1) of the Act persons (including persons specified in a direction given under section 11, 12, 13 or 14 of the Act) who are members of the Legislative Assembly of the Australian Capital Territory.
The amendment operates on and from the date of gazettal.
Overview
The Superannuation Act 1976, enacted by the Parliament of Australia, establishes a contributory superannuation scheme for Commonwealth employees. The Act was designed to address the need for a structured retirement savings plan for eligible employees. The Superannuation (Eligible Employees) Regulations (Amendment), issued under the authority of the Minister for Finance, aims to refine the categories of employees eligible for superannuation benefits. This amendment specifically excludes certain classes of individuals from being eligible employees, such as those included in prescribed classes under the regulations. The recent amendment, detailed in Statutory Rules 1989 No. 85, seeks to exclude members of the Legislative Assembly of the Australian Capital Territory from the superannuation scheme, aligning with the policy objective of ensuring that these public officials are not subject to the superannuation contributions required of other employees. This amendment reflects the intent to tailor the superannuation provisions to the unique governance structure of the Australian Capital Territory, ensuring clarity and precision in the application of superannuation laws.
Scope and Application
The Superannuation Act 1976 is a legislative framework designed to provide a contributory superannuation scheme for Commonwealth employees, encompassing those individuals who meet the criteria specified within the Act as "eligible employees". These eligible employees are mandated to contribute to a superannuation fund, ensuring their financial security post-retirement. The Act includes provisions that allow the Governor-General to make regulations necessary for the effective implementation of the Act, which includes defining who qualifies as an eligible employee. Notably, the Act excludes certain classes of persons from being eligible employees through prescribed regulations, ensuring that only those who meet the specific requirements can contribute to the superannuation scheme. The Superannuation (Eligible Employees) Regulations, which are amendable, detail these exclusions and can include categories such as members of the Legislative Assembly of the Australian Capital Territory. This exclusion is explicitly stated in the recent amendment to the Regulations, reflecting the legislative intent to exempt specific government officials from the superannuation contributions, thereby maintaining a clear distinction between the roles of public service and legislative functions within the framework of the superannuation scheme.
Key Provisions
The Superannuation (Eligible Employees) Regulations (Amendment) Statutory Rule 1989 No 85 amends the Superannuation (Eligible Employees) Regulations by introducing a new exclusion from the definition of "eligible employee" under the Superannuation Act 1976 (the Act). Specifically, section 4(zf) of the Regulations is amended to include members of the Legislative Assembly of the Australian Capital Territory among the prescribed classes of persons who are not eligible to contribute to the superannuation scheme. This amendment aligns with the intention that members of the Assembly, including those appointed to the offices of Chief Minister, Presiding Officer, Deputy Presiding Officer, and Ministers, should not be required or eligible to contribute under the Act.
Under the Act, eligible employees are those who contribute to the superannuation scheme, as defined in section 3(1). However, subsection 3(1)(j) allows for certain classes of persons to be excluded from eligibility by regulation. The Regulations, in accordance with this provision, specify the classes of persons who are not eligible employees. The amendment made by Statutory Rule 1989 No 85 adds members of the Australian Capital Territory Legislative Assembly to this list. This ensures that individuals in these positions are not required to contribute to the superannuation scheme.
The amendment imposes specific obligations on the parties governed by the Act. Members of the Legislative Assembly of the Australian Capital Territory are explicitly excluded from being eligible employees, meaning they are not required to contribute to the superannuation scheme. This exclusion applies to all members of the Assembly and those appointed to the offices of Chief Minister, Presiding Officer, Deputy Presiding Officer, and Ministers. The Regulations ensure that these individuals are not subject to the superannuation contributions that other eligible employees are required to make.
There are no specific offences, penalties, or consequences outlined in the Act or the Regulations for failing to comply with the exclusion of members of the Legislative Assembly from being eligible employees. However, the Act generally imposes a framework for enforcement and compliance, which includes administrative and legal measures for non-compliance with superannuation regulations. Breaches of the Act could potentially lead to civil or criminal penalties as outlined in other sections of the Act, although these are not detailed specifically in relation to the exclusion of certain classes of persons in this particular amendment.