Superannuation (Retiring Age) Regulations (Amendment) 1996 No. 105
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 105
Issued by the Authority of the Minister for Finance
Superannuation Act 1976
Superannuation (Retiring Age) Regulations (Amendment)
The Superannuation Act 1976 (the 1976 Act) makes provision for and in relation to an occupational superannuation scheme for Commonwealth employees and for certain other persons. That scheme is known as the Commonwealth Superannuation Scheme (CSS).
Section 168 of the 1976 Act provides that the Governor-General may make regulations for the purposes of that Act.
Subsection 3(1) of the 1976 Act, prior to the amendments made by Superannuation Legislation Amendment Act (No. 1) 1995 (the amending Act), included definitions of "maximum, retiring age" and "minimum retiring age" which provided that the maximum retiring age is 65 and the minimum retiring age is 60 unless otherwise prescribed in regulations.
Regulation have been made for the purposes of the definitions in subsection 3(1) of the 1976 Act of "maximum retiring age" and "minimum retiring age" in the Superannuation (Retiring Age) Regulations (the Principal Regulations).
Regulation 4 of the Principal Regulations provides that, where a person's maximum retiring age is less than 65, the maximum retiring age for the person should be the maximum retiring age applicable under the terms and conditions of the person's employment. This was intended to allow a maximum retiring age lower than 65 to apply to the person, if so provided by the terms and conditions of employment. However, the provision as currently worded lacks clarity.
Regulation 5 of the Principal Regulations provides that where a person's minimum retiring age is less than 60, the applicable retiring age will be that which applies under the terms and conditions of the person's employment.
The amending Act amended the 1976 Act by replacing the existing definition of "minimum retiring age" with a revised definition. The revised definition provides that the minimum retiring age is 55 unless another age is specified in the terms and conditions of employment or appointment of the CSS member or former CSS member in respect of the position held on his or her last day of membership of the CS S.
Subsection 168(12A) was inserted to provide that regulations arising from the amendments to the Act may be made with retrospective effect within one year after the amending Act received Royal Assent. The Regulations amend the Principal Regulations as a consequence of the amendments to the 1976 Act contained in the amending Act
THE AMENDMENTS
Regulation 1
This regulation provides that regulation 5 is taken to have commenced on 23 June 1995.
Regulation 2
This regulation provides that the Principal Regulations are amended by the amending Regulations.
Regulation 3
This regulation provides that the name of the Principal Regulations be changed to Superannuation (CSS) Retiring Age Regulations.
Regulation 4
This regulation modifies regulation 4 of the Principal Regulations which relates to maximum retiring age.
Subregulation 4.1
This subregulation omits and replaces subregulation 4(1) of the Principal Regulations and inserts a new subregulation 4(1A). The replacement subregulation 4(1) provides that if an eligible employee's terms and conditions of employment provide a maximum retiring age of less than 65, then that age is the person's maximum retiring age for the purposes of the 1976 Act. The new subregulation 4(1A) provides that if a person is no longer a CSS member and, under the person's terms and conditions of employment before they last ceased to be a CS S member, the maximum age for retirement of the person was less than 65, then that age is the person's maximum retiring age for the purposes of the 1976 Act.
Subregulation 4.2
This subregulation inserts a reference to subregulation 4(1A) into subregulation 4(3) of the Principal Regulations.
Regulation 5
This regulation omits regulation 5 of the Principal Regulations, as a consequence of the revised definition inserted in the 1976 Act by the amending Act.
Overview
The Superannuation (Retiring Age) Regulations (Amendment) 1996 were enacted to clarify and update the regulations pertaining to the retiring age for participants in the Commonwealth Superannuation Scheme (CSS) under the Superannuation Act 1976. This amendment was introduced in response to the need to refine and clarify the definitions of "maximum retiring age" and "minimum retiring age" as set out in the original Act and its regulations. The Superannuation Legislation Amendment Act (No. 1) 1995 had previously amended the Act to revise the minimum retiring age, and these amendments were intended to ensure that the regulations align with the legislative changes. The Superannuation (Retiring Age) Regulations (Amendment) 1996 were issued under the authority of the Minister for Finance to implement these necessary updates, thereby ensuring that the regulations accurately reflect the policy objectives of the Act.
Scope and Application
The Superannuation (Retiring Age) Regulations (Amendment) 1996 No. 105 applies to the Commonwealth Superannuation Scheme (CSS), which pertains to Commonwealth employees and certain other individuals. The Regulations amend the Superannuation (Retiring Age) Regulations to address and clarify the definitions of "maximum retiring age" and "minimum retiring age" under the Superannuation Act 1976. Specifically, the Regulations modify the maximum and minimum retiring ages to align with changes introduced by the Superannuation Legislation Amendment Act (No. 1) 1995. These amendments allow for more flexibility by setting the minimum retiring age at 55, unless otherwise specified in the terms and conditions of employment or appointment. The Regulations also adjust the definition of maximum retiring age to better reflect the terms and conditions of employment. Furthermore, the Regulations have retrospective effect within one year from the Royal Assent of the amending Act, as authorised by subsection 168(12A) of the 1976 Act.
Key Provisions
The Superannuation (Retiring Age) Regulations (Amendment) 1996 No. 105 amends the existing superannuation regulations to align with the changes introduced by the Superannuation Legislation Amendment Act (No. 1) 1995. Section 168 of the Superannuation Act 1976 (the 1976 Act) allows the Governor-General to make regulations for the purposes of the Act. The amendment modifies the definitions of "maximum retiring age" and "minimum retiring age" to clarify the conditions under which these ages apply. Regulation 1 ensures that the amendment to the minimum retiring age in Regulation 5 takes effect from 23 June 1995. Regulation 2 formally amends the Principal Regulations, and Regulation 3 changes the name of the Principal Regulations to Superannuation (CSS) Retiring Age Regulations. Regulation 4 revises Regulation 4 of the Principal Regulations to specify that the maximum retiring age is determined by the terms and conditions of employment if it is less than 65. Subregulation 4.1 replaces the previous subregulation to make this clear, while Subregulation 4.2 references the new subregulation in the context of former CSS members. Regulation 5 removes the old Regulation 5, which is superseded by the new definition in the 1976 Act.
The amendments impose specific obligations on parties governed by the regulations. Employers must ensure that their terms and conditions of employment clearly specify the retiring age for their employees to avoid any ambiguity. Employees need to be aware of their specific retiring age as outlined in their employment terms. The regulations also clarify that for those who are no longer CSS members, their retiring age is determined by the terms and conditions of their employment at the time they last ceased to be a CSS member. These changes require employers to update their employment documentation and communicate these changes to their employees effectively.
Breaches of the regulations may lead to legal consequences. Employers failing to adhere to the specified retiring ages in their employment terms could face legal challenges from employees. Additionally, if the terms and conditions of employment do not clearly specify the retiring age, this could result in disputes. The amendments do not explicitly state penalties for non-compliance, but breaches of employment conditions generally could result in civil penalties or legal actions. Employers should ensure compliance to avoid any potential disputes or legal actions.