EXPLANATORY STATEMENT
STATUTORY RULES 1990 NO. 165
ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE
SUPERANNUATION ACT 1990
DECLARATION UNDER DEFINITION OF “TEMPORARY EMPLOYEE” IN SECTION 3
The Superannuation Act 1990 (the Act) provides for the new superannuation scheme for Commonwealth employees to operate from 1 July 1990. The current Commonwealth superannuation scheme is provided for by the Superannuation Act 1976. Generally, members of the current scheme are to have the option, to be exercised during the period of 12 months from 1 July 1990, of remaining members of that scheme or of transferring to the new scheme.
In accordance with section 8 of the Act, those who may become members of the new scheme include persons who are temporary employees. The term “temporary employee” is defined in section 3 of the Act as a person who is an employee for the purposes of the Public Service Act 1922 and any other person employed, otherwise then in a permanent capacity, by the Commonwealth or an approved authority for the purposes of the Act. In accordance with the definition, the term does not include a person engaged or appointed for employment outside Australia other than such a person who is declared by the Minister for Finance to be a person to whom the definition applies.
In accordance with section 45 of the Act, a declaration for the purposes of the definition of “temporary employee” in section 3 is to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 and a Statutory Rule for the purposes of the Statutory Rules Publication Act 1903.
The Declaration contained in the Statutory Rule and cited as “Temporary Employee Declaration No 1”, declares the following to be persons to whom the definition applies-
(a) certain persons employed in the Cocos (Keeling) Islands on or before 6 April 1978 who became members of the current Commonwealth superannuation scheme on that date; and
(b) a person appointed as the representative of the Government of Australia, or the Australian representative of Her Majesty, in another country who immediately before being so appointed was a member of either the current or the new superannuation scheme for Commonwealth employees.
This will enable such persons to become, or remain, members of the new scheme. They are able to be members of the current scheme by virtue of a direction by the Minister for Finance under the somewhat similar definition of “temporary employee” in subsection 3(1) of the Superannuation Act 1976.
Section 3 of the Act came into operation on Royal Assent (7 June 1990). The Declaration operates from the date of its gazettal.
Overview
The Superannuation Act 1990 was enacted to establish a new superannuation scheme for Commonwealth employees, effective from 1 July 1990, replacing the existing scheme governed by the Superannuation Act 1976. This legislation was introduced to address the need for an updated superannuation framework that would better serve the evolving employment landscape within the Commonwealth. The policy objective of this Act was to provide a unified superannuation scheme that could cater to the needs of both permanent and temporary employees, while also ensuring that existing members of the previous scheme could transition smoothly into the new framework. The Act was passed by the Parliament of Australia and received Royal Assent on 7 June 1990. The explanatory statement indicates that the Act allows members of the old scheme to opt either to remain in that scheme or to transfer to the new scheme within a 12-month window from the Act's commencement date.
Scope and Application
The Superannuation Act 1990, as outlined in Statutory Rules 1990 No. 165, establishes the new superannuation scheme for Commonwealth employees commencing from 1 July 1990, replacing the previous scheme governed by the Superannuation Act 1976. The Act allows existing members of the old scheme the option to remain in it or transfer to the new scheme within a 12-month period from the commencement date. Under this legislation, temporary employees are eligible to become members of the new superannuation scheme. The term “temporary employee” is defined in section 3 of the Act to include individuals who are employees under the Public Service Act 1922 and those employed by the Commonwealth or an approved authority in a non-permanent capacity. However, this definition excludes those engaged outside Australia unless specifically declared by the Minister for Finance. The Declaration under the definition of “temporary employee”, issued pursuant to section 45 of the Act, identifies certain individuals who qualify for membership in the new scheme, including those employed in the Cocos (Keeling) Islands before 6 April 1978 and members of the old scheme on that date, as well as those appointed as Australian representatives in other countries and previously members of either the old or new superannuation schemes. This Declaration, as a disallowable instrument, operates from the date of its gazettal, enabling these individuals to join or remain in the new scheme.
Key Provisions
The Superannuation Act 1990 (the Act) establishes the new superannuation scheme for Commonwealth employees, which commenced on 1 July 1990. Section 8 of the Act allows temporary employees to become members of the new scheme. Section 3 of the Act defines “temporary employee” as an employee for the purposes of the Public Service Act 1922 or any other person employed by the Commonwealth or an approved authority in a non-permanent capacity, excluding those employed outside Australia unless declared otherwise by the Minister for Finance. This definition excludes individuals engaged or appointed for employment outside Australia unless specifically declared by the Minister for Finance. The Act mandates that a declaration under section 3 must be a disallowable instrument under the Acts Interpretation Act 1901 and a Statutory Rule under the Statutory Rules Publication Act 1903.
The Declaration, known as "Temporary Employee Declaration No 1", specifies certain persons employed in the Cocos (Keeling) Islands on or before 6 April 1978 who became members of the current Commonwealth superannuation scheme on that date, and individuals appointed as representatives of the Australian Government or the Australian representative of Her Majesty in another country, provided they were members of either the current or new superannuation scheme prior to their appointment. These declarations allow the specified individuals to become or remain members of the new scheme, aligning with the similar definition of "temporary employee" in subsection 3(1) of the Superannuation Act 1976.
The Act imposes obligations on the Minister for Finance to declare specific individuals as temporary employees under the Act. This declaration allows eligible individuals to join or remain in the new superannuation scheme. Failure to comply with these provisions could result in disqualification from the scheme, impacting their superannuation benefits. The Minister's declaration must adhere to the statutory requirements, and any non-compliance could lead to disallowance under section 46A of the Acts Interpretation Act 1901.
The consequences for non-compliance with the Act or the Statutory Rule are severe. Section 46A of the Acts Interpretation Act 1901 allows for the disallowance of the Statutory Rule by either House of the Parliament. This disallowance could render the Declaration ineffective, potentially disqualifying eligible individuals from the new superannuation scheme. Additionally, any failure to adhere to the statutory requirements might result in administrative or legal challenges, affecting the validity of the Minister's declaration and the eligibility of the individuals concerned. The precise penalties for such breaches are not explicitly stated in the text, but they could include financial penalties or other administrative sanctions as determined by the relevant authorities.