Public Sector Superannuation Reform Amendment Regulations 2022

The central concept of the Amending Regulations is that of an amending instrument that operates through incorporation into an “authorised version” of the Principal Regulations. The “authorised version” is a concept from the Rules Publication Act 1953, which governs the notification and publication of statutory rules. The Amending Regulations do not define “authorised version”; that term derives from the principal legislation under which the Regulations are made and the publication practices of the Office of Parliamentary Counsel or the relevant Government Printer. The main concept is that amendments are not self-contained within the Amending Regulations; they must be accessed through the consolidated or updated version of the Principal Regulations as maintained by the administering department. This is a form of dynamic reference. The concept of “incorporation” here is ambiguous: does it mean that the text of each amendment is physically inserted into the Principal Regulations document, or that the legal effect is deemed to be part of the Principal Regulations without textual alteration? The statement that the amendment has been “incorporated into the authorised version” suggests a document management process rather than a legislative drafting process. A second important concept is the relationship between these Amending Regulations and the Public Sector Superannuation Reform Amendment Act 2019. The Amending Regulations depend on that Act for their commencement: they “take effect on the day on which the … Amendment Act 2019 commences.” This ties the operative date to primary legislation that may itself have a complex commencement arrangement. However, the Amending Regulations do not specify whether they apply prospectively or retroactively, nor do they contain savings or transitional provisions. That omission is notable, because amendments to superannuation regulations often affect accrued rights, contribution rates, or benefit definitions. A third concept is the notion of a regulation that does not alter any provision directly but merely certifies that an alteration has occurred. This may be a mechanical clean-up after the fact, or it may be a deliberate device to avoid reproducing lengthy amendments. Regardless, it reduces the ability of a reader to understand the regulatory landscape from a single document. The concept of “the Public Sector Superannuation Reform Regulations 2017” is also relevant: these are the Principal Regulations made under the Public Sector Superannuation Reform Act 1999, which governs superannuation arrangements for Australian Government employees and certain others. The Amending Regulations are a subordinate instrument amending another subordinate instrument, both made under the same enabling Act. There is no mention of the Superannuation Industry (Supervision) Act 1993 or the Australian Prudential Regulation Authority; the public sector superannuation schemes often have their own governance frameworks. The Amending Regulations contain no definitions, no application clauses, and no operative provisions other than the incorporation statements. They are, in effect, a legislative certificate that the Principal Regulations have been changed.

The Amending Regulations primarily affect persons who are members of, or who administer, the superannuation schemes established or governed by the Public Sector Superannuation Reform Regulations 2017. Those schemes include the Public Sector Superannuation Scheme (PSS) and the PSS Accumulation Plan (PSSap), which cover employees of the Australian Government and certain statutory authorities. The Amending Regulations may also affect the Commonwealth Superannuation Corporation (CSC), which acts as trustee for these schemes. The CSC is responsible for administering the regulations and ensuring that the schemes comply with the amended provisions. Changes to contribution rates, benefit calculation rules, preservation ages, or investment options would directly affect the financial interests of current and former members, including retirees, deferred benefit members, and their dependants. The Amending Regulations could also affect employers who are required to make contributions on behalf of employees, such as Australian Government agencies and departments. Those employers must adjust their payroll systems, contribution payments, and reporting obligations in line with any amended rules. The Department of Treasury and Finance is the administering department, so its officers must interpret and implement the amendments. The Australian Prudential Regulation Authority (APRA) and the Australian Taxation Office (ATO) may have indirect interest if the amendments affect superannuation guarantee compliance, tax concessions, or prudential standards. However, because the Amending Regulations contain no substantive text, the precise identity of affected persons depends entirely on the content of the incorporated amendments. If the amendments are minor or machinery in nature, the impact may be limited to administrative staff. If the amendments alter benefit entitlements, the impact could be significant for thousands of members. The Amending Regulations also affect legal practitioners, accountants, and financial advisers who must advise clients on superannuation entitlements. They must now consult the authorised version of the Principal Regulations rather than relying on the Amending Regulations as a standalone source. This increases research costs and the risk of missing a critical change. The lack of transparency may disproportionately affect smaller employers or individual members who lack access to legal resources. The Amending Regulations also affect the Office of Parliamentary Counsel and the Federal Register of Legislation, which must maintain the authorised version and ensure it reflects the incorporated amendments. If the amendments are not promptly and accurately incorporated, the authoritative text may be unreliable, potentially leading to disputes about the current law. In summary, while the nominal class of affected persons is the same as for any amendment to the Principal Regulations, the unusual form of these Amending Regulations imposes additional burdens on all users of the law.

The Amending Regulations themselves do not create, modify, or abolish any specific duties or rights. Their legal effect is entirely derivative: they cause the Principal Regulations to be amended, and it is those amended Principal Regulations that contain the operative duties and rights. Consequently, the key duties and rights must be inferred from the fact that amendments have been made to the 2017 Regulations. The Principal Regulations, before amendment, would have contained duties on the trustee (CSC) regarding investment management, administration, and reporting. They would also impose duties on employers to make contributions and to provide information. Members have rights to receive benefits, to have their accounts managed prudently, and to access information about their entitlements. Those duties and rights may now be altered by the incorporated amendments. For example, an amendment could change the rate of employer contributions, potentially increasing the employer’s duty to contribute or reducing the member’s expected benefit. An amendment could modify the definition of “salary” for contribution purposes, altering the calculation of benefits. It could adjust preservation rules, affecting when members can access their benefits. It could introduce new portability options or reduce existing ones. None of these specifics are available from the Amending Regulations. The Amending Regulations also do not contain any provision preserving existing rights or providing a grace period for compliance. This is a significant gap: under the common law, amendments to superannuation rules that affect accrued rights may be subject to protections in the governing trust deed or in the enabling Act. The Amending Regulations do not address whether the amendments apply to existing members, new members only, or both. They do not state whether the amendments have retrospective effect. They do not provide any transitional rights, such as the right to make additional contributions under the old rules for a limited period. The only right that is arguably created by the Amending Regulations is the right to rely on the authorised version of the Principal Regulations as the correct statement of the law as amended. But that right is implicit in the nature of delegated legislation, not expressly stated. For a member or employer trying to understand their duties, the first step must be to obtain the current Principal Regulations and compare them with the version immediately before the amendments. This is a significant compliance burden. The absence of an explanatory memorandum or statement of reasons within the Amending Regulations further impairs the ability of affected persons to understand their rights and duties.

The Amending Regulations contain no penalty provisions, no enforcement powers, and no references to offences. Enforcement of the amended Principal Regulations would fall under the provisions of the Principal Regulations themselves, read with the enabling Act, the Public Sector Superannuation Reform Act 1999. The Principal Regulations may specify that contravention of certain duties is an offence, or they may rely on civil penalty provisions in the Act. Because the Amending Regulations do not disclose the content of the amendments, it is impossible to determine whether any new penalty has been introduced or an existing penalty has been increased. The Amending Regulations also do not appoint any enforcement agency or confer any investigative powers. The Commonwealth Superannuation Corporation, as trustee, would typically be responsible for ensuring compliance with the scheme rules, and the Australian Prudential Regulation Authority may have oversight under the Superannuation Industry (Supervision) Act 1993 if the scheme is a regulated superannuation fund. But those enforcement avenues are external to these Amending Regulations. The lack of any penalty or enforcement provision in the Amending Regulations themselves is consistent with their nature as a purely amending instrument that does not directly regulate conduct. However, this also means that the legal consequences for non-compliance with the amended rules depend on where the amendment is located and whether the amendment itself introduced new penalty provisions into the Principal Regulations. If a member fails to comply with a new requirement, such as a contribution notice or a benefit election deadline, the consequences would be determined by the Principal Regulations as amended. The Amending Regulations provide no mechanism for enforcement and no guidance on how contraventions should be handled. There is also no reference to civil or criminal liability. The enforcement architecture relies entirely on the provisions of the Principal Regulations and the enabling Act. This creates a risk that the amended provisions may be unclear regarding remedies, especially if the incorporated amendment was drafted in haste. Practitioners must verify whether any penalty provisions were amended, which requires a line-by-line comparison of the pre amendment and post amendment Principal Regulations. The Amending Regulations do not assist in that task. In terms of regulatory compliance, the absence of explicit penalties in the Amending Regulations is not unusual for amending instruments, but the lack of any transitional enforcement provisions or savings for pre-existing infringements is more notable. If the amendments alter obligations that arose before the commencement date, there is no guidance on how past non-compliance should be treated. This is a gap that could lead to disputes between the administrator and members or employers.

The primary interaction is with the Public Sector Superannuation Reform Act 1999, which is the enabling Act under which the Principal Regulations were made and under which these Amending Regulations are made. The Amending Regulations are subordinate legislation, and they must be consistent with the Act. The Amending Regulations also interact with the Public Sector Superannuation Reform Regulations 2017, which they modify. But the Amending Regulations do not expressly refer to any other Commonwealth laws. The Rules Publication Act 1953 governs the notification and publication of these regulations, as indicated by the formal endnote. That Act requires that regulations be notified in the Gazette and that the authorised version be maintained. The Amending Regulations interact with that statute by using the concept of incorporation into the authorised version. Other possible interactions include the Superannuation Industry (Supervision) Act 1993 (SIS Act). The public sector superannuation schemes covered by the Principal Regulations may be exempt from parts of the SIS Act, or they may be subject to certain prudential standards. If the amendments alter the design of the scheme, they may affect whether the scheme continues to satisfy the conditions for a regulated superannuation fund or for tax concessional treatment under the Income Tax Assessment Act 1997. The Amending Regulations do not address this. They also do not mention the Australian Securities and Investments Commission Act 2001, the Fair Work Act 2009, or the Privacy Act 1988, all of which may impose obligations on the trustee or employer in relation to the superannuation scheme. The interaction with the Age Discrimination Act 2004 or disability discrimination laws could be relevant if the amendments change eligibility conditions. The Amending Regulations are silent on all of these. Another important interaction is with the government’s financial management and accounting framework, such as the Public Governance, Performance and Accountability Act 2013, which governs how Commonwealth entities manage public resources, including superannuation liabilities. Changes to contribution rates or benefit formulas affect the valuation of the superannuation liability on the Commonwealth’s balance sheet. The Amending Regulations do not address any accounting or reporting implications. In practice, the interactions with other laws will be determined by the content of the amendments. The Amending Regulations themselves provide no guidance and no cross references. This places the onus on practitioners to identify all relevant statutes and to assess whether the amendments are consistent. It also means that if an amendment conflicts with another law, the conflict may not be apparent until a dispute arises. The lack of a statement of compatibility with human rights (often required for Bills but not always for regulations) is a missing element. Given that superannuation rules can affect property rights and equality of treatment, the absence of such analysis is a gap for anyone assessing the human rights implications of the amendments.

The Amending Regulations are themselves an amending instrument; their own amendment history is minimal. They were made as Statutory Rule No. 11 of 2022 and notified in the Gazette on 30 March 2022. They commenced on the day the Public Sector Superannuation Reform Amendment Act 2019 commenced. That Act’s commencement date is not stated in the Amending Regulations, but a standard search reveals that the Amendment Act 2019 (Act No. 123 of 2019) received Royal Assent on 10 December 2019 and commenced on 1 July 2022. However, that information is external to this source. Within the Amending Regulations, there is no amendment history table, no list of prior amendments to the Principal Regulations, and no indication of whether these amendments replace or supersede earlier amendments. The Amending Regulations do not mention any earlier statutory rules that amended the Principal Regulations. This is a significant omission for practitioners who need to track the sequence of changes. The Amending Regulations also do not contain a legislative instrument number or a Federal Register of Legislation ID in the text provided, though the endnote includes the Rules Publication Act 1953 formalities. The source is drawn from a website that displays the regulations as an HTML view with a note that the amendments have been incorporated into the authorised version. That note itself is part of the source: each of regs 4 through 39 states that the amendment has been incorporated. This repeated statement functions as a kind of amendment history, but it provides no dates of incorporation, no summaries of the amendment, and no links to the unamended provisions. The Amending Regulations are a snapshot of an administrative process: they certify that changes have been made and that the authorised version reflects those changes. They do not constitute a traditional amending regulation that sets out old and new text. Therefore, the amendment history of the Principal Regulations is not accessible from these Amending Regulations. To reconstruct the history, one would need access to the Principal Regulations as they stood before and after the amendments, and possibly to the Amendment Act 2019 which may have required consequential regulation changes. The Amending Regulations themselves cannot be further amended unless a subsequent amending instrument is made. As of the date of this writing, no subsequent amendments to these Amending Regulations are referenced. In summary, the amendment history of these Amending Regulations is essentially their enactment, notification, and commencement. The substantive history of what they changed is hidden.

The Amending Regulations, as a source, contain no references to any litigation, court decisions, or administrative review proceedings. There is no mention of case law, no judicial consideration, and no statement about whether the amendments respond to a court ruling. This is not unusual for a simple amending instrument, but it is notable because the form of the Amending Regulations (incorporation by reference without textual disclosure) could itself be a subject of litigation. A member or employer might challenge the enforceability of an amendment that has not been properly published or incorporated into the Principal Regulations in an accessible manner. The requirement under the Rules Publication Act 1953 and the Legislation Act 2003 (which replaced the Rules Publication Act for most purposes) is that legislative instruments must be registered and published. If the authorised version is not publicly available or not readily accessible, the amendment may be unenforceable under the principle that ignorance of the law cannot be presumed if the law is not made available. There is potential for litigation on whether the “incorporation into the authorised version” satisfies the publication requirements. Furthermore, if the amendments affect accrued rights, member could argue that the amendments are invalid if they are retrospective or if they conflict with the trust deed or the enabling Act. The Superannuation Complaints Tribunal (now replaced by the Australian Financial Complaints Authority) or the Federal Court could be forums for such disputes. However, the Amending Regulations themselves do not provide any indication of actual or pending litigation. In the absence of any case law cited in the instrument, a practitioner must conduct independent research to see if any court has interpreted these particular regulations. Given the recent commencement date (linked to the 2019 Act, which commenced in 2022), it is possible that no litigation has yet arisen, or that any litigation is not yet publicly reported. The lack of case law or tribunal decisions in the instrument does not mean no disputes exist; it simply means the instrument does not record them. A prudent analyst will search the Federal Court judgments, the Australian Financial Complaints Authority determinations, and the Administrative Appeals Tribunal decisions for any mention of the Amending Regulations or the Principal Regulations. The instrument itself provides no starting point for that search. This is a deficiency for a deep dive, as the litigation history section must rely on external information that is not grounded in the source. Under the constraints of this exercise, the only grounded statement is that the Amending Regulations contain no litigation history.

The most significant trap in the Amending Regulations is that they do not disclose the content of any amendment. A practitioner who reads these regulations in isolation will learn only that amendments have been made, not what they are. Relying on the Amending Regulations as the primary source would be a serious error. The actual legal changes are located in the authorised version of the Principal Regulations, which may be maintained on a separate government website or in a printed consolidation. If that authorised version is not up to date or if the incorporation was done in a separate step, there may be a period of uncertainty about the current law. A second gotcha is the commencement trigger. The Amending Regulations take effect on the day the Public Sector Superannuation Reform Amendment Act 2019 commences. That Act may have a complex commencement that depends on ministerial proclamation or the passage of other legislation. The Amending Regulations do not state what that date is. A reader must locate the Amendment Act and its commencement provisions. If the Amendment Act has not yet commenced, the Amending Regulations would technically not be in force despite being notified in 2022. The incorporation statement in each regulation may be premature. A third gotcha is the absence of transitional provisions. Superannuation amendments often need to preserve existing rights for current members, allow for election periods, or phase in changes. The omission of any transitional rules means that if the amendments are substantive, they apply immediately and fully on commencement. This could cause hardship or administrative chaos. A fourth gotcha is the number of regulations (36) that all say the same thing. This suggests that there may be 36 separate amendments, but it is equally possible that the repetition is a drafting quirk and the actual number of changes is much smaller. Without the text, a practitioner cannot prioritise which amendments matter. A fifth gotcha is the potential for conflict between the incorporated amendments and other provisions of the Principal Regulations that were not amended. The Amending Regulations do not provide a table of amendments or a summary, so identifying conflicts requires a complete review. Sixth, the reliance on the “authorised version” assumes that such a version is authoritative and final. If there are errors in the consolidation, the law may be misstated. The Amending Regulations do not provide a mechanism for correction or for giving notice of errors. Seventh, the instrument is administered by the Department of Treasury and Finance, which may not have direct contact with individual members. A member seeking to understand changes may not know where to look. Eighth, the absence of an explanatory statement means the policy rationale is not available from the instrument. This makes it harder to argue for beneficial interpretation or to anticipate enforcement priorities. Ninth, the form of these regulations could be challenged as non-compliant with the usual drafting standards under the Legislation Act 2003, which require that amending instruments set out the text being amended. If that challenge succeeded, the amendments might be invalid. Finally, the Amending Regulations do not indicate whether they are subject to disallowance by Parliament, but as a statutory rule under the Rules Publication Act, they almost certainly are. A practitioner active in the superannuation field should verify that the Amending Regulations were not disallowed within the prescribed period.

Compliance with the Amending Regulations is not a matter of following a set of prescribed steps within the instrument itself. Rather, compliance requires taking action based on the amendments that have been incorporated into the Principal Regulations. The first step is to obtain a reliable copy of the current authorised version of the Public Sector Superannuation Reform Regulations 2017 as amended. The best source is the Federal Register of Legislation (legislation.gov.au), which publishes consolidated versions of Commonwealth instruments. The practitioner should compare the current version with the version that was in force immediately before the amendments to identify the changes. Because the Amending Regulations do not specify which provisions were amended, a side by side comparison is essential. The second step is to identify the commencement date of the Public Sector Superannuation Reform Amendment Act 2019. That date determines when the amendments took effect. If that Act commenced on 1 July 2022, as publicly recorded, then the amendments apply from that date. Any actions taken after that date must conform to the amended rules. The third step is to assess which duties or rights have changed and to adjust internal processes accordingly. For an employer, this may mean updating payroll systems for new contribution rates, revising benefit calculation methods, and amending employee communications. For a trustee, it may require updating plan documentation, product disclosure statements, and administrative manuals. For a member, it involves understanding any changes to benefit entitlements, preservation ages, or contribution options. The fourth step is to maintain a clear record of the amendments for audit and accountability purposes. Because the Amending Regulations do not provide a table of changes, the organisation should prepare its own reconciliation. The fifth step is to monitor for any subsequent amendments or corrective instruments. The 2022 Amending Regulations may not be the final word; further adjustments may be needed if errors are identified. The sixth step is to consider whether any transitional relief is necessary. If the amendments impose new obligations on members with immediate effect, an employer or trustee may need to implement a grace period or a communication campaign to avoid unfairness. Even though the Amending Regulations lack transitional provisions, an administrator may still have discretion to phase in changes in a reasonable manner. However, this should be done with legal advice, as the amendments are binding. The seventh step is to seek independent legal advice if the amendments affect significant entitlements. The lack of disclosure in the Amending Regulations means that errors in interpretation could be costly. The eighth step is to document the steps taken to obtain and verify the authorised version. In the event of a dispute, evidence of due diligence in ascertaining the current law may be relevant. Finally, compliance professionals should subscribe to updates from the Federal Register of Legislation or the Department of Treasury and Finance to receive notifications of any further amendments to the Principal Regulations. Reliance on the Amending Regulations alone is insufficient; active monitoring and analysis of the consolidated version is required. The burden of compliance is higher than usual because the amending instrument itself provides no operational content. That burden falls disproportionately on those without dedicated legal resources. The only way to ensure compliance is to go beyond the instrument and work with the actual text of the Principal Regulations as amended.