Superannuation (PSS) Membership Exclusion Amendment Declaration 1999 (No. 4) 1999 No. 320
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 320
Issued by the Authority of the Minister for Finance and Administration
Superannuation Act 1990
Declaration under paragraph 6(2)(c)
The Superannuation Act 1990 (the 1990 Act) makes provision for and in relation to the Public Sector Superannuation Scheme (PSS) for Commonwealth employees and for certain other persons.
Section 6 of the 1990 Act specifies the persons who are, or who may be, members of the PSS. In accordance with paragraph 6(2)(c), a person declared by the Minister for Finance and Administration to be a person to whom section 6 does not apply is not a PSS member. Declarations made under paragraph 6(2)(c) are contained in the Superannuation (PSS) Membership Exclusion Declaration (the Principal Declaration).
Section 45 of the 1990 Act provides that a declaration made under paragraph 6(2)(c) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 and a Statutory Rule for the purposes of the Statutory Rules Publication Act 1903.
The Principal Declaration is being amended to provide that, if a body known as the Federal Magistrates Court is established by statute, a person who consequently becomes a Federal Magistrate do not have access to the PSS. Federal Magistrates are justices for the purposes of the Constitution. Membership of the PSS by persons who are justices for the purposes of the Constitution may be in conflict with section 72(iii) of the Constitution. Section 72(iii) of the Constitution provides that a justice shall receive such remuneration as the Parliament may fix. The Australian Government Solicitor considers that there is a good argument that a justice's remuneration would not be fixed in the required sense if the amount of that remuneration was variable and dependent upon the exercise of an actuary's discretion. Certain benefits payable from the PSS have regard to amounts calculated on the basis of factors determined by an actuary.
The Principal Declaration already provides in items 4 and 8 of the Schedule that a statutory office holder who is a member of an employer-sponsored superannuation scheme in relation to that statutory office is not to be a PSS member. The superannuation arrangement proposed for Federal Magistrates would in most instances mean that these provisions would exclude them from PSS membership. This Declaration puts the matter beyond doubt, which is appropriate to avoid a potential constitutional conflict.
Details of the amendment are explained in the Attachment.
The Declaration commences on gazettal.
SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION AMENDMENT DECLARATION 1999 (NO. 4)
Clause 1
1. This clause provides that the name of the Declaration is the Superannuation (PSS) Membership Exclusion Amendment Declaration 1999 (No. 4).
Clause 2
2. This clause provides that the declaration commences on gazettal.
Clause 3
2. This clause provides that Schedule 1 amends the Superannuation (PSS) Membership Exclusion Declaration 1995 (the Principal Declaration).
Schedule 1
Item 1 inserts item 41 into the Schedule to the Principal Declaration. The inserted item describes a class of persons who are not PSS members. The class of persons comprises persons who, if a body known as the Federal Magistrates Court is established by statute, become Federal Magistrates.
Overview
The Superannuation (PSS) Membership Exclusion Amendment Declaration 1999 (No. 4) was enacted in 1999 to amend the existing Superannuation (PSS) Membership Exclusion Declaration 1995, clarifying the exclusion of certain individuals from membership in the Public Sector Superannuation Scheme (PSS). This amendment was made by the Minister for Finance and Administration under the authority of the Superannuation Act 1990. The primary issue addressed by this legislation was the potential constitutional conflict that could arise if Federal Magistrates, who are justices for the purposes of the Australian Constitution, were members of the PSS. Specifically, the Act sought to ensure that Federal Magistrates do not have access to the PSS, as their remuneration and benefits might be influenced by actuarial discretion, conflicting with the requirement that their remuneration be fixed by Parliament. This amendment was necessary to clearly exclude Federal Magistrates from PSS membership, thereby avoiding any potential constitutional conflict.
Scope and Application
The Superannuation (PSS) Membership Exclusion Amendment Declaration 1999 (No. 4) amends the Superannuation (PSS) Membership Exclusion Declaration 1995, which is a Statutory Rule under the Superannuation Act 1990. This amendment specifies that if a Federal Magistrates Court is established by statute, any person who becomes a Federal Magistrate will not be a member of the Public Sector Superannuation Scheme (PSS). This exclusion is necessary to avoid any potential conflict with section 72(iii) of the Constitution, which requires that the remuneration of a justice be fixed by the Parliament. The amendment is designed to clarify and ensure that the remuneration of Federal Magistrates remains fixed, thus avoiding any variation that might arise from actuarial determinations within the PSS. The amendment takes effect upon gazettal, and it is a disallowable instrument subject to the Acts Interpretation Act 1901 and a Statutory Rule under the Statutory Rules Publication Act 1903.
Key Provisions
The Superannuation (PSS) Membership Exclusion Amendment Declaration 1999 (No. 4) makes specific changes to the existing Superannuation (PSS) Membership Exclusion Declaration 1995. The primary focus of these changes is to ensure that individuals who become Federal Magistrates, in the event that the Federal Magistrates Court is established by statute, are excluded from membership in the Public Sector Superannuation Scheme (PSS) (Schedule 1, Item 1). This amendment aims to avoid any potential conflict with constitutional provisions regarding the remuneration of justices, particularly as outlined in section 72(iii) of the Constitution.
Under the Superannuation Act 1990, the Act governs the membership criteria for the PSS, specifically identifying those who are, or may be, members of the scheme. Section 6 of the Act specifies the persons eligible for PSS membership, while section 45 makes it clear that declarations made under paragraph 6(2)(c) are disallowable instruments and Statutory Rules. The obligations imposed by this legislation require that the Minister for Finance and Administration declare individuals who are not eligible for PSS membership, as outlined in the Principal Declaration and its amendments.
The Superannuation (PSS) Membership Exclusion Amendment Declaration 1999 (No. 4) introduces specific exclusions to ensure compliance with constitutional requirements. Persons who become Federal Magistrates, upon the establishment of the Federal Magistrates Court by statute, are explicitly excluded from PSS membership to avoid any potential conflict with the constitutional provision regarding the remuneration of justices. The amendment is designed to prevent any variable element in a justice's remuneration that might arise from benefits payable from the PSS.
In terms of consequences for non-compliance, although the explanatory statement does not detail specific offences or penalties, the legislative framework suggests that breaches could result in legal consequences. As a disallowable instrument and Statutory Rule, any failure to adhere to the provisions of this Declaration could lead to legal challenges or actions under the Acts Interpretation Act 1901 and the Statutory Rules Publication Act 1903. The precise penalties or consequences would depend on the specific nature of the breach and the applicable laws.