EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO. 404
ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE
SUBJECT: SUPERANNUATION ACT 1976 - SUPERANNUATION (TRANSFER ARRANGEMENTS) 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 matters which the Act requires or permits to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Act makes provision for and in relation to an occupational superannuation scheme for persons employed by the Commonwealth, and for certain other persons.
Sub-section 126(2) of the Act provides that the regulations may make provision for modifying the Act, or a provision of the Act specified in the regulations, in the application of the Act or that provision to and in relation to a contributor under the Act who, at any time before he became a contributor, was a member of a superannuation scheme, or to and in relation to such a class of contributors. Sub-section 126(3) provides that the modifications may include, but are not limited to, modifications providing for the payment of contributions and benefits in addition to, or in substitution for, those provided under the Act.
Sub-section 168(3) provides that regulations made after 31 December 1978 by virtue of sub-section 126(2) may be expressed to have taken effect from and including a day not earlier than 12 months before the making of the regulations.
Regulations made by virtue of sub-section 126(2) are contained in the Superannuation (Transfer Arrangements) Regulations.
The Regulations amend the Superannuation (Transfer Arrangements) Regulations to modify certain provisions of the Act in their application to Mr B.V. McKay who was appointed Director-General of Health with effect from 10 September 1984 in accordance with section 36 of the Public Service Act 1922. As an officer for the purposes of the Public Service Act 1922, Mr McKay became a contributor under the Act on 10 September 1984 by virtue of the definitions of “eligible employee” and “permanent employee” in sub-section 3(1) of the Act. Mr McKay had previously been a contributor to the superannuation scheme established by the Superannuation Act 1922 from
13 February 1958 until his resignation from the Australian Public Service on 31 May 1974. Following his resignation, Mr McKay received a refund of his contributions to the Superannuation Fund under the Superannuation Act 1922.
It is intended that, provided Mr McKay pays to the Superannuation Fund the amount of the refund of contributions he received on his resignation in May 1974, his former period of contributory service, under the Superannuation Act 1922, be recognised as contributory service for the purposes of the Act.
Sections 127 and 128 of the Act provide that a person who becomes a contributor under the Act may pay to the Commissioner for Superannuation a transfer value from a superannuation scheme of which he was previously a member in exchange for a credit of a period of contributory service for the purposes of the Act. A transfer value is a lump sum benefit from the previous scheme that includes a component based on employer contributions and that was payable upon the termination of the employment to which the previous scheme related otherwise than on the ground of invalidity or physical or mental incapacity.
Section 129 of the Act enables a lump sum benefit from a previous scheme that does not form part of a transfer value to be paid into the Superannuation Fund and be treated as supplementary contributions.
Section 16 of the Act provides that a new contributor may be required to undergo a medical examination. Section 130 provides that section 16 does not apply in certain circumstances where a new contributor pays a transfer value to the Commissioner.
The Regulations modify sections 127 to 130 to provide that, if Mr McKay pays to the Commissioner for Superannuation the amount refunded to him under the Superannuation Act 1922 following his resignation in May 1974:
• Mr McKay’s period of contributory service under the Act will be increased by the period from 13 February 1958 to 31 May 1974;
• the whole of the amount will be paid into the Superannuation Fund and be treated as basic contributions;
• Mr McKay will not be required to undergo a medical examination.
The Regulations also omit section 129 as that section will not apply to Mr McKay.
The amending Regulations operate with effect from 10 September 1984, the date from which Mr McKay was appointed and became a contributor under the Act.
Overview
The Superannuation (Transfer Arrangements) Regulations (Amendment) 1984 were enacted to address the specific circumstances of Mr B.V. McKay, who was appointed Director-General of Health on 10 September 1984. This legislation was introduced by the Parliament of Australia, under the authority of the Minister for Finance, to amend the existing Superannuation (Transfer Arrangements) Regulations and provide a unique resolution for Mr McKay's superannuation contributions. Mr McKay had previously been a contributor to the superannuation scheme established by the Superannuation Act 1922 from 13 February 1958 until his resignation from the Australian Public Service on 31 May 1974. Following his resignation, he received a refund of his contributions to the Superannuation Fund under the Superannuation Act 1922. The policy objective of these regulations is to ensure that Mr McKay's former period of contributory service is recognised as contributory service for the purposes of the Superannuation Act 1976, provided he repays the refunded amount to the Superannuation Fund. This amendment also exempts Mr McKay from undergoing a medical examination and modifies his treatment of supplementary contributions.
Scope and Application
The Superannuation (Transfer Arrangements) Regulations (Amendment) Statutory Rules 1984 No. 404, issued under the authority of the Minister for Finance, modifies certain provisions of the Superannuation Act 1976 in relation to Mr B.V. McKay, who was appointed Director-General of Health on 10 September 1984. The Act applies to persons employed by the Commonwealth and other specified individuals, and the regulations extend to include Mr McKay, a former member of a superannuation scheme, now a contributor under the Act. The amendments are designed to recognise Mr McKay's previous contributory service under the Superannuation Act 1922 as service for the purposes of the 1976 Act. If Mr McKay repays the refund of his contributions from the earlier superannuation scheme, his service from 13 February 1958 to 31 May 1974 will be recognised, the refund amount will be treated as basic contributions, and he will be exempt from the medical examination requirement. The Regulations, effective from 10 September 1984, provide specific modifications to sections 127 to 130 of the Act to accommodate Mr McKay's unique circumstances.
Key Provisions
The Superannuation (Transfer Arrangements) Regulations (Amendment) have been made to modify certain provisions of the Superannuation Act 1976 for Mr B.V. McKay. These Regulations, under sections 127 to 130 of the Act, provide specific provisions for Mr McKay who had previously been a contributor under the Superannuation Act 1922 from 13 February 1958 until 31 May 1974. Section 127 allows a new contributor to pay a transfer value to the Commissioner for Superannuation to receive a credit of contributory service. The Regulations modify this section to increase Mr McKay’s period of contributory service under the Act by the period from 13 February 1958 to 31 May 1974 if he pays the refunded amount to the Commissioner. Section 128 pertains to the treatment of the transferred value, which is a lump sum benefit from a previous scheme. The Regulations modify this section so that the entire refunded amount will be treated as basic contributions in the Superannuation Fund. Section 129, which enables a lump sum benefit from a previous scheme to be paid into the Superannuation Fund and treated as supplementary contributions, is omitted for Mr McKay. Finally, section 130 exempts new contributors who pay a transfer value from undergoing a medical examination, a provision that is now extended to Mr McKay under the Regulations.
The Superannuation (Transfer Arrangements) Regulations (Amendment) impose several obligations and requirements on Mr McKay and the Commissioner for Superannuation. Mr McKay must pay to the Commissioner the amount refunded to him following his resignation in May 1974. This payment is a prerequisite for the recognition of his former period of contributory service under the Superannuation Act 1922 as contributory service under the Superannuation Act 1976. Once Mr McKay makes this payment, the Commissioner must credit his account with the additional period of contributory service and treat the refunded amount as basic contributions in the Superannuation Fund. Additionally, Mr McKay is exempt from undergoing a medical examination under section 16 of the Act due to the payment of a transfer value.
The Superannuation (Transfer Arrangements) Regulations (Amendment) do not specify any offences, penalties, or consequences for breaches of the modified provisions. However, non-compliance with the Act or the Regulations could lead to legal consequences under the broader provisions of the Superannuation Act 1976. For instance, failing to make the required payment to the Commissioner for Superannuation might result in the loss of the credit for the period of contributory service under the Act. The Act provides for civil and criminal penalties for various breaches, including fines and imprisonment, although the specific penalties for non-compliance with the modified provisions are not detailed in the Regulations.