Superannuation (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1)

Administered by Department of Finance

Legislation au F2019L00200 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

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

Superannuation Act 1990

Declaration under paragraph 6(2)(c)

Superannuation (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1)

 

The Superannuation Act 1990 (the 1990 Act) makes provision for, and in relation to, the Public Sector Superannuation Scheme (PSS) for Australian Government employees and for certain other persons.

Section 6 of the Act specifies various persons who are a member of the PSS (PSS member).  Paragraph 6(2)(c) enables the Minister to declare a person not to be a PSS member.

The Superannuation (PSS) Membership Exclusion Declaration 1995 (the Principal Declaration) identifies the persons who are declared not to be PSS members under paragraph 6(2)(c) of the 1990 Act.

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 (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1) (the Amending Declaration) is to repeal a historical provision in the Principal Declaration that precludes certain staff of the Australian Securities Commission (now known as the Australian Securities and Investments Commission (ASIC)) who moved from State service to Public Service Act 1922 employment, by determination under that Act, from being PSS members.  The arrangements for these persons have been overtaken by new PSS membership arrangements for ASIC staff from 1 July 2019.  This is the date that certain ASIC staff will transfer from Commonwealth employment to be directly employed by ASIC under amendments made to the Australian Securities and Investments Commission Act 2001 by the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018.

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 45(2) of the 1990 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 PSS, 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 (PSS) Membership 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 certain staff of the Australian Securities and Investments Commission (ASIC) will be taken to have ceased Commonwealth employment and become directly employed by ASIC as a result of amendments made to the Australian Securities and Investments Commission Act 2001 (ASIC Act) by the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018 (TLA(EAC) Act).  Under the Superannuation (PSS) Membership Inclusion Declaration 2006, as amended by the Superannuation (PSS) Membership Inclusion Amendment Declaration 2019 (No. 1), certain ASIC staff affected by the change will continue to be members of the Public Sector Superannuation Scheme (PSS) from 1 July 2019.

Authority

3.                      Section 3 identifies the authority for the instrument as paragraph 6(2)(c) of the Superannuation Act 1990 (the 1990 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 (PSS) Membership Exclusion Declaration 1995

5.                      Schedule 1 makes amendments to the Schedule to the Superannuation (PSS) Membership Exclusion Declaration 1995 (the Principal Declaration).  The Schedule lists persons who are declared by the Minister, under paragraph 6(2)(c) of the 1990 Act, not to be a PSS member. 

6.                      Item 1 of Schedule 1 to the Amending Declaration repeals item 2 of the Schedule to the Principal Declaration.  Item 2 is a historical provision that excludes certain staff members of the Australian Securities Commission (now known as ASIC) who moved from State service to Public Service Act 1922 employment at the organisation, by direction under that Act, from being a PSS member unless they make a written request, in an approved form, to Commonwealth Superannuation Corporation.  The item is being repealed, as ASIC staff who move from Commonwealth employment to direct employment by ASIC on 1 July 2019 under amendments made to the ASIC Act by the TLA(EAC) Act will be subject to new PSS membership arrangements.  The new arrangements are provided for by the Superannuation (PSS) Membership Inclusion Declaration 2006, as amended by the Superannuation (PSS) Membership Inclusion Amendment Declaration 2019 (No. 1).

 

 

        ATTACHMENT B

 

 

Overview

The Superannuation (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1) was enacted to address the need for updating the superannuation membership status of certain staff of the Australian Securities and Investments Commission (ASIC) in light of legislative changes that transferred some ASIC staff from Commonwealth employment to direct employment by ASIC on 1 July 2019. This was necessitated by amendments to the Australian Securities and Investments Commission Act 2001 made by the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018. The declaration amends the Superannuation (PSS) Membership Exclusion Declaration 1995 to repeal a provision that previously excluded specific ASIC staff from being members of the Public Sector Superannuation Scheme (PSS). This change ensures that the superannuation arrangements for these staff members align with their new employment status. The Superannuation Act 1990, enacted by the Australian Parliament, provides the legislative framework for the Public Sector Superannuation Scheme (PSS), including provisions for including or excluding certain individuals as members of the scheme. The Superannuation (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1) was issued under the authority of the Minister for Finance and the Public Service, aligning with the policy objective of updating superannuation arrangements to reflect the changing employment status of certain ASIC staff. The declaration was subject to consultation with relevant stakeholders and was assessed by the Office of Best Practice Regulation as being of a machinery nature, not requiring a Regulation Impact Statement.

Scope and Application

The Superannuation (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1) amends the Superannuation (PSS) Membership Exclusion Declaration 1995 by removing a specific provision that previously excluded certain staff of the Australian Securities Commission (ASIC) who transitioned from State service to Public Service Act 1922 employment from being members of the Public Sector Superannuation Scheme (PSS). This change is in response to new PSS membership arrangements for ASIC staff, effective from 1 July 2019, the date when certain ASIC staff will cease Commonwealth employment and be directly employed by ASIC, pursuant to amendments made by the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018. The Amending Declaration is issued under the authority of paragraph 6(2)(c) of the Superannuation Act 1990, and it repeals a historical exclusion that is now superseded by the new arrangements outlined in the Superannuation (PSS) Membership Inclusion Declaration 2006, as amended. The Amending Declaration applies to individuals affected by the specified changes and is subject to disallowance under the Legislation Act 2003.

Key Provisions

The main operative sections of the Superannuation (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1) include Section 1, which provides the name of the instrument, and Section 2, which sets the commencement date as 1 July 2019. Section 3 identifies the authority for the instrument under paragraph 6(2)(c) of the Superannuation Act 1990 (the 1990 Act), and Section 4 outlines how each instrument specified in a Schedule is amended or repealed. Schedule 1 specifically amends the Superannuation (PSS) Membership Exclusion Declaration 1995 by repealing certain provisions that are now superseded by new arrangements for ASIC staff. The Amending Declaration effectively repeals a historical exclusion for certain staff of the Australian Securities and Investments Commission (ASIC) who transitioned from State service to Commonwealth employment, as these staff will now transfer to direct ASIC employment under the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018. The obligations and requirements imposed by the Act on the parties or entities it governs include ensuring that the changes to the PSS membership for ASIC staff are properly executed on the effective date of 1 July 2019. The Commonwealth Superannuation Corporation, as the corporate trustee of the Public Sector Superannuation Scheme (PSS), and ASIC are required to consult on legislative instruments as stipulated by Section 17 of the Legislation Act 2003. Furthermore, the Office of Best Practice Regulation (OBPR) was consulted and assessed that the changes are machinery in nature, not necessitating a Regulation Impact Statement. The Amending Declaration also ensures that ASIC staff who transition from Commonwealth to direct ASIC employment will continue to be members of the PSS, as per the Superannuation (PSS) Membership Inclusion Declaration 2006, as amended. The Amending Declaration includes potential civil or administrative consequences for non-compliance, although specific penalties are not detailed in the explanatory statement. Given the legislative nature of the declaration, any breach of the declared provisions could lead to legal challenges or actions to enforce the correct interpretation and application of the PSS membership rules. The declaration also adheres to the provisions of the Legislation Act 2003, making it subject to disallowance, which provides a mechanism for parliamentary scrutiny and control over the legislative instrument. Additionally, the declaration is compatible with human rights as evidenced by the Statement of Compatibility with Human Rights included in Attachment B.

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