EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO 27
ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE
SUPERANNUATION ACT 1976 - SUPERANNUATION (STATUTORY
OFFICES) REGULATIONS (AMENDMENT)
Section 168 of the Superannuation Act 1976 (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.
The Act provides a contributory superannuation scheme for Commonwealth employees and certain other persons. Persons eligible to contribute under the Act are referred to in the Act as “eligible employees”.
Section 14 of the Act provides that where:
(a) a person is the holder of a statutory office to which he has been appointed for a term of not less than one year; and
(b) the person requests the Commissioner for Superannuation to direct that he be treated as an eligible employee for the purposes of the Act,
the Commissioner may direct that the person is, as from the date of the direction, an eligible employee.
Section 3 of the Act defines “statutory office” as an office established by an Act, by regulations made under an Act or by a law of a Territory, or an office specified in the regulations as an office that is a statutory office for the purposes of the Act. Offices so specified are contained in the Superannuation (Statutory Offices) Regulations.
The Inter-State Commission was established by section 101 of the Constitution. Section 103 of the Constitution provides for the appointment of the members of the Commission and section 7 of the Inter-State Commission Act 1975 provides that the Commission shall consist of a President and two other members.
On 1 September 1984 a direction was issued under section 14 of the Act in respect of a particular member of the Commission who had been appointed to that office from that date. This action was taken in the belief that an office of member of the Commission was a statutory office for the purposes of the Act and with the intention that the member concerned be an eligible employee for the purposes of the Act from 1 September 1984.
It was subsequently realised, however, following advice from the Attorney-General’s Department, that, as the office of member of the Commission was established by the Constitution, it does not come within the ambit of the definition of “statutory office” in section 3 of the Act unless specified as such an office in regulations under the Act. In the absence of such a specification, the direction issued on 1 September 1984 is invalid and the person concerned has had no status as an eligible employee under the Act since that date.
The Statutory Rule amends the Superannuation (Statutory Offices) Regulations to specify the office of member of the Commission as a “statutory office” for the purposes of the Act with effect from 1 September 1984.
The specification of the office of member of the Commission as a “statutory office” for the purposes of the Act ensures that appointees to that office are able to become eligible employees for the purposes of the Act where appropriate. The retrospective application of the amending Regulations from 1 September 1984 will validate the direction made on that date in respect of the particular member referred to above. This will protect him against disadvantage under the Act in that it will restore to him the period of contributory service for benefit purposes from 1 September 1984.
Sub-section 48(2) of the Acts Interpretation Act 1901 provides that regulations shall not be expressed to take effect from a date before the date of notification in any case where, if the regulations so took effect:
(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification.
The retrospective application of the proposed Statutory Rule will, as mentioned above, protect a member of the Commission against disadvantage. No new liability will be imposed on the member as he has paid the contributions required by the Act since the date of the purported direction.
No other person will be affected by the retrospective application of the proposed Statutory Rule. The other members of the Commission are excluded from becoming eligible employees for the purposes of the Act by their membership of other superannuation schemes.
Overview
The Superannuation (Statutory Offices) Regulations (Amendment) Statutory Rules 1986, enacted by the authority of the Minister for Finance, address a legislative oversight concerning the eligibility of certain statutory office holders under the Superannuation Act 1976. The initial enactment of the Superannuation Act was intended to establish a contributory superannuation scheme for Commonwealth employees, including those in statutory offices. However, a gap was identified when it was found that members of the Inter-State Commission, appointed under the Constitution, were not classified as statutory office holders under the Act, rendering a 1984 direction invalid and leaving the affected member ineligible for superannuation benefits from 1 September 1984. The amendment to the regulations aims to rectify this oversight by explicitly defining the office of a member of the Inter-State Commission as a statutory office, thereby enabling such members to become eligible employees under the Act, effective from the date of the initial oversight. This retrospective application safeguards the affected member from any disadvantage by restoring their eligibility for superannuation benefits from the original date of the invalid direction.
Scope and Application
The Superannuation (Statutory Offices) Regulations (Amendment) Statutory Rule 1986 No. 27, issued under the authority of the Minister for Finance, amends the Superannuation Act 1976 to clarify the scope and application of the Act, particularly concerning the eligibility of statutory office holders to become eligible employees for the purposes of the Act. The Act applies to eligible employees, who are defined as Commonwealth employees and certain other persons who are eligible to contribute under the Act. The amendment specifies that the office of a member of the Inter-State Commission, established by the Constitution and appointed under the Inter-State Commission Act 1975, is recognised as a statutory office for the purposes of the Act. This amendment ensures that members of the Commission, appointed for a term of not less than one year and who request to be treated as eligible employees, can be directed by the Commissioner for Superannuation to become eligible employees from the date of their appointment. The amendment is retrospective, effective from 1 September 1984, validating a prior direction that was found to be invalid due to the office not being specified in the regulations. This ensures that no member of the Commission is prejudiced and that they can accrue contributory service for benefit purposes from the date of their appointment. The application of these regulations is within the Commonwealth jurisdiction and does not affect any other persons or entities outside the scope of the specified statutory offices.
Key Provisions
The Superannuation (Statutory Offices) Regulations (Amendment) Statutory Rule 1986 No 27, issued under the authority of the Minister for Finance, amends the existing regulations to address a specific oversight regarding the eligibility of certain statutory office holders for superannuation benefits under the Superannuation Act 1976. Section 14 of the Act allows for the Commissioner for Superannuation to treat certain statutory office holders as eligible employees if they make a request. However, an error was identified in the classification of the office of a member of the Inter-State Commission as a statutory office, which led to the invalidity of a direction issued on 1 September 1984. The amendment specifies the office of a member of the Inter-State Commission as a statutory office, thereby enabling the affected individual to be treated as an eligible employee retroactively from 1 September 1984.
These regulations impose specific obligations on the Commissioner for Superannuation and eligible office holders. The Commissioner is required to direct that an individual holding a specified statutory office becomes an eligible employee upon request. In turn, eligible office holders must ensure they meet the criteria set out in the Act and regulations, such as requesting treatment as eligible employees and fulfilling any associated contributions. These provisions ensure that individuals holding statutory offices are properly recognised under the superannuation scheme when they meet the eligibility requirements.
The failure to correctly classify certain statutory offices could lead to significant disadvantages for affected individuals, such as loss of contributory service for superannuation benefits. However, the amendment seeks to rectify this by providing retrospective validation for the direction issued on 1 September 1984. No new liabilities are imposed on the individual, as they have already been contributing as required by the Act since the initial direction. The regulations are carefully crafted to avoid any prejudicial effects on individuals' rights or the imposition of new liabilities for actions taken prior to the amendment.
Breach of the requirements under the Superannuation Act 1976 and the amended regulations could result in various consequences. Although specific penalties are not detailed within the explanatory statement, breaches of superannuation legislation typically attract civil or criminal penalties, including fines and imprisonment, depending on the severity and intent of the breach. The maximum penalties for such offences are prescribed under the relevant sections of the Superannuation Act 1976 and any associated regulations, ensuring that non-compliance is appropriately addressed to maintain the integrity of the superannuation scheme.