Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Amendment (Judges) Determination 2021

Administered by Department of Finance

Legislation au F2021L01097 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Minister for Finance

Superannuation Act 2005

Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Amendment (Judges) Determination 2021 made under subsection 18(10) of the Superannuation Act 2005

The Superannuation Act 2005 (the 2005 Act) establishes and makes provision for the Public Sector Superannuation Accumulation Plan (PSSAP), a superannuation scheme for federal public sector employees and certain other persons who commence employment on or after 1 July 2005.

Subsection 18(10) of the 2005 Act provides that the Minister may, by legislative instrument, determine a class of persons that are excluded from contributory membership of PSSAP as an ordinary employer-sponsored member under subsection 18(7) or 18(8A) of the 2005 Act. The Superannuation (PSSAP—Ordinary Employer‑Sponsored Member Exclusion) Determination 2020 (the Principal Determination) is such an instrument made under subsection 18(10).

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 amending determination under subsection 18(10) of the 2005 Act to amend the Principal Determination, being the Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Amendment (Judges) Determination 2021 (the Amending Determination).

Amending Determination

Section 18 of the 2005 Act sets out the situations in which a person who is a member of PSSAP falls within the category of ‘ordinary employer-sponsored member’. Members within this category are permitted to make eligible superannuation contributions to the scheme either by themselves or by another person or entity on their behalf in accordance with the scheme rules. The five situations in which a person is an ordinary employer-sponsored member of PSSAP are provided by subsections 18(2), (3), (5), (7) and (8A) of the 2005 Act.

Under the Principal Determination, Judges of the Federal Circuit Court are excluded from being an ordinary employer-sponsored member of PSSAP under subsections 18(7) and 18(8A) of the 2005 Act for the duration of their tenure.

On 1 September 2021, the Federal Circuit Court and the Family Court of Australia 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 Determination updates references to Judges of the Federal Circuit Court in the Principal Determination 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 Determination are at Attachment A.

The Minister for Finance has also made an instrument under subsection 13(2)(h) of the 2005 Act to exclude FCFC (Division 2) Judges from eligibility to be an ordinary employer‑sponsored member under subsections 18(2), (3) and (5) of the 2005 Act. That instrument, the Superannuation (PSSAP) Membership Eligibility (Exclusion) Amendment (Judges) Declaration 2021 amends the Superannuation (PSSAP) Membership Eligibility (Exclusion) Declaration 2005.

Legislation Act 2003

The Amending Determination 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 Determination is subject to disallowance in accordance with subsection 18(11) of the 2005 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 Determination 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 Determination commences immediately after the commencement of section 2 of 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 DETERMINATION

Name

  1.                    Section 1 provides that the name of the instrument is the Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Amendment (Judges) Determination 2021.

Commencement

2.                      Section 2 sets out the commencement provision for the amendments contained in the Amending Determination. 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 Determination 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 Determination 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 Determination as originally made and that it will not be amended to deal with any later amendments to the Amending Determination.

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 subsection 18(10) of the Superannuation Act 2005 (2005 Act).

Schedules

6.                      Section 4 provides that each instrument that is specified in a Schedule to the Amending Determination 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 the Amending Determination has effect according to its terms.

Schedule 1 - Amendments

7.                      Item 1 repeals paragraph 5(b) of the Superannuation (PSSAP—Ordinary Employer‑Sponsored Member Exclusion) Determination 2020 and substitutes a new paragraph 5(b). This replaces the existing exclusion in respect of Judges of the Federal Circuit Court of Australia with an exclusion applying to Judges of the Federal Circuit and Family Court of Australia (Division 2).

 

 

 

 

ATTACHMENT B

 

Overview

The Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Amendment (Judges) Determination 2021, enacted by the Minister for Finance under the Superannuation Act 2005, addresses the need to update references to Federal Circuit Court judges in superannuation exclusion regulations in light of the merger of the Federal Circuit Court and the Family Court of Australia. This determination ensures that the exclusion of these judges from being ordinary employer-sponsored members of the Public Sector Superannuation Accumulation Plan continues under the new administrative structure of the Federal Circuit and Family Court of Australia. The objective of this amendment is to maintain the existing superannuation exclusions applicable to these judges without interruption as the courts merge into a unified entity. The Superannuation Act 2005, enacted by the Australian Parliament, established the PSSAP and provides for the regulation of superannuation contributions for federal public sector employees. This amendment reflects the administrative changes under the Federal Circuit and Family Court of Australia Act 2021, ensuring that superannuation exclusions for judges remain consistent with the new court structure. The Minister for Finance's action in making this amending determination is aimed at ensuring continuity in the application of superannuation regulations amidst structural changes in the court system.

Scope and Application

The Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Amendment (Judges) Determination 2021 is a legislative instrument made under subsection 18(10) of the Superannuation Act 2005. This instrument amends the existing Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Determination 2020 to reflect the merger of the Federal Circuit Court and the Family Court of Australia into the Federal Circuit and Family Court of Australia (FCFC) under the Federal Circuit and Family Court of Australia Act 2021. Specifically, the Amending Determination updates references to Judges of the Federal Circuit Court with references to Judges of the FCFC (Division 2), ensuring that the exclusion from being an ordinary employer-sponsored member of the Public Sector Superannuation Accumulation Plan continues for these officers under the new court structure. The amendments apply to Judges of the FCFC (Division 2) and commence on the day after the Amending Determination is registered on the Federal Register of Legislation, with specific provisions in Schedule 1 taking effect immediately after the commencement of section 2 of the Federal Circuit and Family Court of Australia Act 2021. This legislative instrument is subject to disallowance as per subsection 18(11) of the Superannuation Act 2005.

Key Provisions

The Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Amendment (Judges) Determination 2021 amends the existing Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Determination 2020, made under the Superannuation Act 2005. This amendment is necessary due to the merger of the Federal Circuit Court and the Family Court of Australia, which forms the Federal Circuit and Family Court of Australia (FCFC) as of 1 September 2021. The amendment ensures that the exclusion of certain judges from being ordinary employer-sponsored members of the Public Sector Superannuation Accumulation Plan (PSSAP) continues under the new court structure. Specifically, the amendment updates references from Judges of the Federal Circuit Court to Judges of the FCFC (Division 2), thereby maintaining the exclusion for these officers in the new administrative arrangements. The Superannuation Act 2005 establishes the PSSAP, a superannuation scheme for federal public sector employees and certain other persons who commenced employment on or after 1 July 2005. Under this Act, the Minister for Finance has the authority to determine classes of persons excluded from contributory membership of PSSAP as ordinary employer-sponsored members. The Amending Determination exercises this authority by updating the references to ensure the exclusion continues for Judges of the FCFC (Division 2). The amendment applies to Judges of the FCFC (Division 2) who were previously Judges of the Federal Circuit Court, ensuring that their exclusion from PSSAP membership remains effective under the new court structure. The Amending Determination imposes specific obligations on the parties governed by it. It mandates that Judges of the FCFC (Division 2) remain excluded from being ordinary employer-sponsored members of PSSAP for the duration of their tenure. This exclusion applies to contributions that these judges would otherwise be eligible to make to the PSSAP under the ordinary employer-sponsored member provisions. The amendment ensures that the legislative changes reflect the new court structure and maintain the existing exclusions for the relevant judicial officers. There are no explicit offences, penalties, or civil/criminal consequences outlined in the Amending Determination for breaches of the provisions. However, the exclusion of FCFC (Division 2) Judges from being ordinary employer-sponsored members of PSSAP is a legislative requirement, and any failure to comply with this determination could potentially lead to legal actions or consequences under the Superannuation Act 2005. The amendment itself is a legislative instrument subject to disallowance in accordance with subsection 18(11) of the 2005 Act, and it is essential for the relevant authorities to adhere to its provisions to ensure compliance with the superannuation scheme regulations.

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Superannuation Law
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.