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SUPERANNUATION (PSS) MEMBERSHIP INCLUSION AMENDMENT DECLARATION 2002 (NO. 1) 2002 NO. 95

STATUTORY RULES 2002 No. 95

Issued by the authority of the Minister for Finance and Administration

Superannuation Act 1990

Declaration under paragraph 6(1)(j)

The Superannuation Act 1990 (the 1990 Act) makes provision for and in relation to the Public Sector Superannuation Scheme (PSS) for Commonwealth employees and for certain other persons.

Section 6 of the 1990 Act specifies the persons who are, or who may be, members of the PSS. In accordance with paragraph 6(1)(j), a person declared by the Minister for Finance and Administration to be a person to whom section 6 applies, is a PSS member. Declarations made under paragraph 6(1)(j) are contained in the Superannuation (PSS) Membership Inclusion Declaration (the Principal Declaration).

Section 45 of the 1990 Act provides that a declaration made under paragraph 6(1)(j) is 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. Subsection 45(4) of the 1990 Act provides that a declaration made under paragraph 6(1)(j) may commence on a day not earlier than 12 months before its making.

The purpose of the Declaration contained in the Statutory Rule and cited as the Superannuation (PSS) Membership Inclusion Amendment Declaration 2002 (No. 1) is to amend the Principal Declaration to provide that PSS members commencing employment with two bodies to be specified in the Declaration continue to be members subject to certain conditions set out in the Declaration. The purpose of the Declaration is also to ensure that amendments to the Principal Declaration previously included in the Superannuation (PSS) Membership Inclusion Amendment Declaration 2001 (No. 1), Statutory Rule 2001 No. 230, (the previous amending Declaration) providing PSS membership for a further two classes of persons have the intended effect.

The Declaration ensures continued membership of the PSS for employees of the Australian National Training Authority who are or were transferred to Australian Training Products (ATP Ltd) on or after that body commenced employing staff on 1 July 2001. It also provides that PSS membership for ATP Ltd employees will cease in the circumstances set out in the Declaration. For example, membership would cease when the person ceases to be employed by ATP Ltd or where Commonwealth control of ATP Ltd ceases.

The provisions relating to ATP Ltd commence on 1 July 2001, being the date from which the company began to employ its own staff. The retrospective date of effect is consistent with subsection 45(4) of the 1990 Act. The retrospective date of effect will not have a detrimental effect on any person as the employees concerned have been treated as members since that date.

The Declaration also provides continuing membership of the PSS for employees of Australian Strategic Policy Institute Limited (ASPI Ltd) who are PSS members immediately before commencing that employment or who were former members of the PSS. It provides that PSS membership for ASPI Ltd employees will cease in the circumstances set out in the Declaration. For example, membership would cease when the person ceases to be employed by ASPI Ltd. or where that body ceases to be a Commonwealth company.

The provisions relating to ASPI Ltd commence on 7 November 2001, being the date from which the company began to employ staff. The retrospective date of effect is consistent with subsection 45(4) of the 1990 Act. The retrospective date of effect will not have a detrimental effect on any person as the employees concerned have been treated as members since that date.

The previous amending Declaration was intended to provide continuing PSS membership for employees of the Sydney Harbour Federation Trust and Snowy Hydro Limited. That Declaration included some typographical errors including an error identified by the Senate Standing Committee on Regulations and Ordinances.

Some of those errors, which related to the Sydney Harbour Federation Trust, did not affect the PSS membership arrangements for employees of the Trust but should be corrected for clarity. Schedule 2 to the Declaration amends the Principal Declaration to clarify the provisions arising from the previous amending Declaration in relation to employees of the Sydney Harbour Federation Trust. Schedule 2 takes effect from 20 September 2001, the commencement date of the relevant provisions of the previous amending Declaration. The retrospective date of effect is consistent with subsection 45(4) of the 1990 Act. The retrospective date of effect will not have a detrimental effect on any person as the employees concerned have been treated as members since that date.

Schedule 2 to the previous amending Declaration included amendments to the Principal Declaration to provide PSS membership for employees of Snowy Hydro Limited (SHL). The Schedule, however, contained a misdirected amendment relating to the circumstances in which those employees would cease their membership. As SHL has not yet commenced employing staff there have not been any consequences of that misdirection. To ensure that the provisions for employees of the Snowy Mountains Hydro-electric Authority who become employees of SHL can apply as intended, Schedule 2 to the previous amending Declaration has been omitted by the Superannuation (PSS) Membership Inclusion Amendment Declaration 2002 (No. 2) and further amendments to the Principal Declaration are made by this Declaration. The approach of amending both the previous amending Declaration and the Principal Declaration is appropriate because the relevant provisions of the previous amending Declaration have not yet commenced.

Schedule 4 of the Declaration amends the Principal Declaration to confirm the intention that employees of the Snowy Mountains Hydro-electric Authority who become employees of SHL immediately after the date on which the Authority is corporatised and who were PSS members immediately before that date may continue their membership on commencing employment with SHL in the circumstances specified in the Declaration.

Schedule 4 also renames the Principal Declaration as the Superannuation (PSS) Membership Inclusion Declaration 1995, in line with the current naming practice for statutory instruments of its kind.

Schedule 4 takes effect from Gazettal.

The details of the Declaration are explained in the Attachment.

ATTACHMENT

SUPERANNUATION (PSS) MEMBERSHIP INCLUSION AMENDMENT DECLARATION 2002 (NO. 1)

Clause 1

This clause provides that the name of the Declaration is the Superannuation (PSS) Membership Inclusion Amendment Declaration 2002 (No. 1)

Clause 2

This clause provides for the commencement of the Declaration. Sections 1 to 3 and Schedule 1 relating to Australian Training Products Limited (ATP Ltd) take effect from 1 July 2001.

Schedule 2 relating to the Sydney Harbour Federation Trust commences on 20 September 2001 the day on which membership for employees of the Trust first commenced.

Schedule 3 relating to the Australian Strategic Policy Institute Limited (ASPI Ltd) commences on 7 November 2001 being the date from which the company began to employ staff.

Schedule 4 relating to Snowy Hydro Limited commences on gazettal.

Clause 3

Subclause 3(1) provides that Schedule 1, Schedule 3 and Schedule 4 amend the Superannuation (PSS) Membership Inclusion Declaration (the Principal Declaration).

Subclause 3(2) provides that Schedule 2 amends the Principal Declaration as amended by the Superannuation (PSS) Membership Inclusion Amendment Declaration 2001 (No. 1).

Schedule 1

Item [1] amends subclause 3(1) of the Principal Declaration as a consequence of the insertion of subclause 3(12) by item 2.

Item [2] inserts subclause 3(12) which describes the circumstances which result in PSS membership of employees of ATP Ltd ceasing and specifies when membership ceases in each circumstance.

Paragraph 3(12)(a) provides that membership continues by virtue of these amendments only while a member remains employed by ATP Ltd.

Paragraph 3(12)(b) provides that membership ceases on the day immediately before the person joins an alternative superannuation scheme in relation to their employment with ATP Ltd.

Paragraph 3(12)(c) provides that membership ceases if and when ATP Ltd ceases to be under Commonwealth control.

Item [3] inserts item 20 in the Schedule to the Principal Declaration.

Item 20 describes the class of persons who continue to be PSS members during their employment with ATP Ltd. The class comprises persons who became or become employees of ATP Ltd on or after 1 July 2001 and who were PSS members employed by the Australian National Training Authority immediately become commencing that employment. The class does not include a person who is a member of an alternative superannuation scheme (as defined in the Principal Declaration) in relation to their employment with ATP Ltd.

Schedule 2

Item [1] amends subclause 3(11) as a consequence of the substitution of item (a) 19 by Item [2].

Item [2] substitutes item (a) 19 to the schedule to the Principal Declaration with item 19. The purpose of the amendment is to correct the numbering of the item and also to clarify that the reference to "the Trust" is intended to be a reference to the Sydney Harbour Federation Trust (the Trust). There are no other differences between item (a) 19 and its substitute item 19. The amendment does not have any effect on the PSS membership of employees of the Trust that resulted from the previous amending Declaration

Item 19 describes the class of persons who continue to be PSS members during their employment with the Trust. The class comprises persons who are employees of the Trust who immediately before commencing employment with the Trust, were PSS members or persons who had preserved PSS benefits. The class does not include a person who is a member of an alternative superannuation scheme (as defined in the Principal Declaration) in relation to their employment with the Trust.

Schedule 3

Item [1] amends subclause 3(1) as a consequence of the insertion of subclause 3(13) by item [2].

Item [2] inserts subclause 3(13) which describes the circumstances which result in PSS membership of employees of Australian Strategic Policy Institute Limited (ASPI Ltd) ceasing and specifies when membership ceases in each circumstance.

Paragraph 3(13)(a) provides that membership continues by virtue of these amendments only while a member remains employed by ASPI Ltd.

Paragraph 3(13)(b) provides that membership ceases on the day immediately before the person joins an alternative superannuation scheme (as defined in the Principal Declaration).

Paragraph 3(13)(c) provides that membership ceases if and when ASPI Ltd ceases to be a Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1997.

Item [3] inserts item 21 in the Schedule to the Principal Declaration.

Item 21 describes the class of persons who continue to be PSS members during their employment with ASPI Ltd. The class comprises persons who are employed by ASPI Ltd on or after 7 November 2001 and who, immediately before commencing that employment, were PSS members or persons who had preserved PSS benefits. The class of persons does not include a person who is a member of an alternative superannuation scheme (as defined in the Principal Declaration) in relation to their employment with ASPI Ltd.

Schedule 4

Apart from items [1] and [5] the provisions of this Schedule provide PSS membership for employees of the Snowy Mountains Hydro-electric Authority who become employees of Snowy Hydro Limited (SHL). These provisions were originally included in the Superannuation (PSS) Membership Inclusion Amendment Declaration 2001 (No. 1), Statutory Rule 2001 No. 230, but are being re-made because of a misdirected provision in that Declaration.

Item [1] amends clause 1 of the Principal Declaration to rename the Declaration the Superannuation (PSS) Membership Inclusion Declaration 1995 to bring the name into line with the current procedures for naming statutory instruments.

Item [2] inserts a definition of 'SMHEA corporatisation date' in subclause 2(1) that is linked to the date of corporatisation provided for in the Snowy Hydro Corporatisation Act 1997.

Item [3] amends subclause 3(1) as a consequence of the insertion of subclause 3(15) by item 4 and to ensure that the insertion of new subclauses to clause 3 in the future will not require consequential amendments to subclause (1).

Item [4] inserts subclauses 3(14) and (15) in the Principal Declaration. Subclause (14) provides that subclause (15) applies on or after the SMHEA corporatisation date.

Subclause 3(15) describes circumstances which result in PSS membership for persons employed by SHL ceasing and specifies when membership ceases in each circumstance.

Paragraph 15(a) provides that membership continues only while a member remains employed by SHL.

Paragraph 15(b) provides that membership ceases on the day immediately before the person joins an alternative superannuation scheme (as defined in the Principal Declaration).

Paragraph 15(c) provides that membership ceases if a person or entity other than the Commonwealth, New South Wales or Victoria becomes a shareholder of SHL. This ensures that membership ceases if any part of SHL is sold to another party.

Paragraphs 15(d) and (e) provide that continuing membership is contingent upon SHL continuing to make payments to the Commonwealth in respect of the benefits payable and the costs of administration in respect of its PSS members. Should SHL cease to make these payments it would then be required to make separate arrangements for future superannuation entitlements for these employees in an alternative superannuation scheme that satisfies at least the minimum requirements applying generally under the Superannuation Guarantee.

Item [5] changes the name of the Schedule to the Principal Declaration to Schedule 1.

Item [6] corrects earlier drafting by renumbering second paragraph 13(b) to paragraph 13(ba).

Item [7] inserts item 22 in Schedule 1 to the Principal Declaration.

Item 22 describes the class of persons who continue to be PSS members during their employment with SHL. The class comprises persons who are employed by SHL after the SMHEA corporatisation date and who were PSS members employed by the Snowy Mountain Hydro-electric Authority immediately before commencing that employment with SHL on that date. The class of persons does not include a person who is a member of an alternative superannuation scheme (as defined in the Principal Declaration) in relation to their employment with SHL.