Superannuation (PSS) Membership Exclusion Declaration 1995

The Declaration revolves around a small number of legal concepts that determine whether section 6 of the 1990 Act applies to an individual. Those concepts are defined in s 3 and shaped by the Schedule. Key concepts are: alternative superannuation scheme; top‑up arrangement and “top‑up purposes”; member (in the RSA context); contributions‑barred person; and cross‑references to earlier superannuation statutes (1922 Act, 1976 Act) and other laws.

Alternative superannuation scheme (s 3(1)). The term is defined to mean a scheme to which contributions are made in relation to the person’s employment or office (s 3(1)(a)), but the definition expressly excludes a number of arrangements (s 3(1)(b)(i)-(v)). The exclusions are significant: they carve out from “alternative scheme” schemes to which contributions are made only in relation to other employment or another office (b(i)), schemes in which the person’s membership is only for preservation or payment of productivity benefits (b(ii)), schemes used solely to satisfy Superannuation Guarantee obligations (b(iii)), schemes receiving contributions only for performance pay (b(iv)), and, for a prescribed person, schemes where the person is to be treated as a member for top‑up purposes under s 3(2) (b(v)). The text gives a concrete example: an RSA (retirement savings account) that receives only voluntary contributions from a member, and no employer contributions, is not an alternative superannuation scheme; but the same RSA becomes an alternative scheme if the employer contributes above the SG rate (s 3(1) example).

Top‑up arrangement and top‑up purposes (s 3(1) and (2)). A top‑up arrangement is a package in which another person contributes to a superannuation scheme on behalf of the payee, the contributions form part of the payee’s total remuneration (not an additional payment), and the arrangement is entered on the basis that the payee remains (or becomes) a PSS member and the payer remains (or becomes) the designated employer (s 3(1), definition of top‑up arrangement). Section 3(2) takes a person to be a member of a scheme “for top‑up purposes” if the person is a member only because of a top‑up arrangement, or because of a top‑up arrangement combined with limited other circumstances (performance pay contributions, productivity benefits preservation/payment, or employer participation only to meet SG obligations).

Member , RSA context (s 3(1)). The Declaration treats the holder of an RSA as a “member” of that RSA for the purposes of the Declaration (s 3(1), “member, of a superannuation scheme that is an RSA, means a holder of the RSA”).

Contributions‑barred person (Schedule Item 36). Item 36 deals with persons who, under the Superannuation Industry (Supervision) Act 1993 (SIS Act), cannot accept contributions to a regulated superannuation fund. The Item excludes such persons from s 6, but preserves the exclusion where the person was a PSS member and has remained so, or was a PSS member immediately before becoming contributions‑barred and has remained so (Schedule Item 36(a)-(b)).

Temporal, election and opt‑out mechanics. Many Schedule Items exclude persons who have not made particular elections under prior statutory regimes (for example, declarations under s 244(1) of the 1976 Act) or who have not requested to be treated as PSS members prior to particular dates (frequent condition “has not asked to be treated as a PSS member”). Other Items create limited time windows (for example, Item 42 grants a 28‑day period after commencing employment with Icon Water Limited to ask not to be treated as a PSS member).

Cross‑references. The Declaration depends heavily on definitions and transitional arrangements in other statutes: the 1976 Act, the 1922 Act, the Public Service Act (and its later replacements/revisions), the Superannuation Guarantee (Administration) Act 1992, the SIS Act, the Retirement Savings Account Act 1997, the Repatriation Institutions (Transfer) Act 1992 and several Territory Acts (Public Sector Management Act 1994 of the ACT). The operative text repeatedly instructs that terms defined in the 1990 Act have the same meaning in the Declaration (s 3 note).

Administrative role. The Declaration contemplates administrative decision‑making. For example, Schedule Item 8 refers to the Commonwealth or an authority agreeing to pay amounts in respect of alternative scheme benefits or contributions, and s 3(1) refers to a prescribed person taken to be a member for top‑up purposes under subsection (2). The Declaration includes a reference to a “form approved by the Board” (Schedule Item 1(c)(ii)), indicating that an approving body under the 1990 Act (the Board referenced) has a role in administering requests and forms.

The Declaration affects discrete classes of employees, office‑holders and specified groups whose relationship with the Public Sector Superannuation Scheme (PSS) is governed by the 1990 Act and related transitional arrangements. The text lists specific cohorts in the Schedule; the categories are technical and often time‑dependent. Broadly, the Declaration affects:

• Persons who, by virtue of prior employment or statutory arrangements, were not PSS members and who are continuing in that status under transitional arrangements (for example, Items 1, 5, 6, 7, 15-19, 20, 31, 32, 39, 40). These Items typically require a person to have been in specified employment at a specified historical date, to have continuously retained that status, and not to have asked to be treated as a PSS member (Schedule, multiple Items).

• Persons who, in relation to their employment or office, are members of an alternative superannuation scheme, or are required by their terms of employment/appointment to become members of such a scheme (Schedule Items 3, 4, 8, 30). The effect is that where a person is covered by an alternative scheme tied to their employment, s 6 (which would otherwise apply) does not apply (s 4(1) and Schedule Items).

• Persons on particular transfer or transitional arrangements between Commonwealth, State or Territory schemes: e.g., those taken to be employed under Territory Public Sector Management transitional provisions (Schedule Item 37), persons appointed to APS under particular conversions from Territory or State public service (Items 13, 14, 32), and those affected by the Repatriation Institutions (Transfer) Act 1992 (Item 34 and s 4(2)).

• Persons whose PSS benefits become compulsorily payable under the SIS Act (Schedule Item 35), and contributions‑barred persons under the SIS Act (Item 36), subject to exceptions for people who were and remained PSS members immediately prior to the change (Item 36(a)-(b)).

• Judges of the Federal Circuit and Family Court (Division 2) (Schedule Item 41, added as a distinct exclusion in later amendments,see endnotes), and other named statutory office‑holders (Schedule Item 22 and 22A, 23). The instrument lists specific Acts under which office‑holders are excluded (Air Services Act 1995; Australian National University Act 1991; Australian Postal Corporation Act 1989; University of Canberra Act 1989; laws of the Northern Territory).

• Employees of particular entities (Icon Water Limited, Schedule Item 42) who commence employment on or after the commencement of the relevant amending Item, unless they meet specified preserving conditions (previous PSS membership or preserved benefit) or are eligible employees who had elected under s 244(1976 Act), and unless they ask not to be treated as a PSS member within 28 days.

• ASIC employees who became employed in a defined period and have a preserved PSS benefit and who have not requested in an approved form to be treated as PSS members (Schedule Item 44 , added in relation to a 2019-2022 change; see endnotes).

Who pays and who decides. The instrument reallocates decision‑making about which superannuation regime applies to individuals from an automatic application of s 6 to a prescriptive exclusion. The person’s status under the Schedule determines which employer and which superannuation arrangement applies. Employers and scheme administrators must therefore identify staff who meet Schedule criteria. The Declaration itself does not set who pays contributions; it preserves existing alternative scheme arrangements and opt‑outs, and in some Items the Commonwealth or an authority has agreed to pay amounts relating to benefits or contributions under alternative schemes (Schedule Item 8(d)).

Behavioural triggers. Membership of an alternative scheme, the making of an election/declaration under previous Acts, the timing of appointment, preserved benefits, and top‑up arrangements are the concrete behavioural and historical triggers that determine whether an individual falls within the excluded classes. The person’s own elections (or failure to elect) matter: the Schedule repeatedly references whether a person has “asked to be treated as a PSS member” or has “not asked” for such treatment (see multiple Schedule Items).

The Declaration does not itself create duties of contribution or payment; rather it determines the persons to whom s 6 of the 1990 Act does not apply. The immediate legal consequence is that the substantive rights and duties that would follow from the application of s 6 are not available to, or imposed upon, excluded persons. Because the Declaration cross‑refers to provisions in the 1990 Act and earlier Acts, the practical rights and duties for affected persons are determined by the interaction between the Declaration and those statutes.

Right to be excluded (status preservation). Where an individual meets a Schedule Item, the Declaration secures for that person the exclusion from s 6 (s 4(1)). That exclusion will typically preserve membership of an alternative scheme or reflect the individual’s historic election not to be treated as an eligible employee or not to be a PSS member (Schedule Items repeatedly hinge on prior elections/declarations under the 1976 Act or the 1922 Act and on whether a person “has not asked to be treated as a PSS member”).

Opt‑out and election mechanics. Although this instrument generally preserves exclusions, several Schedule Items incorporate mechanisms by which a person can change their treatment. For instance, Item 42 allows a person commencing employment with Icon Water Limited to “ask, in writing, within 28 days after commencing that employment, not to be treated as a PSS member,” which implicitly preserves a limited opt‑out window (Schedule Item 42). Item 44 requires a request in a form approved by CSC and given to CSC to be treated as a PSS member (Schedule Item 44(c)-(d)). Several Items refer to prior formal elections/declarations under s 244(1) of the 1976 Act (Schedule Items 1, 31, 32), so historical formal actings remain consequential.

Administrative duties. The Schedule presumes administrative action and record‑keeping. Employers and relevant authorities must determine whether employees fall within an Item (for example by checking historical employment dates and prior elections), determine if an alternative superannuation scheme applies, and process written requests in approved forms where the Schedule contemplates them (see Schedule Item 1(c)(ii) and Item 44(d)). Schedule Item 8 explicitly contemplates the Commonwealth or an authority agreeing to pay amounts in respect of alternative scheme benefits or contributions; where such agreements exist they impose payment duties on the Commonwealth or the named authority.

Interaction with top‑up mechanics. The Declaration’s definition of “top‑up arrangement” and the rule in s 3(2) that a person may be “taken to be a member…for top‑up purposes” changes the legal character of some scheme memberships. Where a person’s membership exists only because of a top‑up arrangement, the Declaration treats that membership as qualifying for exclusion from s 6 under some prescribed categories (s 3(2)). A top‑up arrangement must be entered into on the basis that the payee remains or becomes a PSS member and the payer remains or becomes the designated employer (s 3(1), definition).

Limitations on rights. The Declaration also limits recourse under s 6 for persons in categories listed in the Schedule. For example, Item 35 excludes a person whose PSS benefits become compulsorily payable under the SIS Act; Item 36 excludes contributions‑barred persons, subject to explicit exceptions. The instrument therefore narrows the class of persons who can rely on s 6 protections or obligations, leaving excluded persons to rely on their alternative schemes and the rules that govern them.

Decision makers referenced. The text refers to a “Board” approving forms (Schedule Item 1), and elsewhere relies on administrative constructs (the designated employer, the Commonwealth or an authority paying amounts under alternative schemes). The Declaration was made under paragraph 6(2)(c) of the 1990 Act (s 2), indicating that the statutory power to make membership exclusion declarations sits with the instrument‑making power created by the 1990 Act.

The Declaration itself does not create express criminal or civil penalties. Its legal effect is declaratory and classificatory: it designates who is outside the application of s 6 of the 1990 Act (s 4(1)). Enforcement of the Declaration’s effects will therefore occur through administrative practice and through the statutory machinery of the 1990 Act and the other statutes to which the instrument refers.

Administrative enforcement and compliance. Responsibility for applying the Declaration’s exclusions falls to the bodies administering the PSS and alternative schemes. The Declaration presumes the existence of administering authorities (for example the Board referenced in Schedule Item 1 and CSC in Item 44). These bodies will be required to determine membership status, accept or reject written requests in approved forms, and record preserved benefits or elections referred to in the Schedule. Where the Schedule contemplates the Commonwealth or an authority agreeing to pay amounts in respect of alternative scheme benefits or contributions (Schedule Item 8(d)), the payment obligation is administrative and contractual; failure to pay would attract the usual contractual, statutory or administrative remedies available under governing law and the instruments creating those payment obligations.

Statutory enforcement under related Acts. Although the Declaration contains no express penalty provisions, non‑compliance with the obligations that arise from the 1990 Act or from related statutes (for example, employer obligations to make superannuation contributions under the Superannuation Guarantee (Administration) Act 1992, or SIS Act requirements about regulated funds) can attract statutory enforcement or penalties under those Acts. The Declaration modifies which persons fall within the scope of the 1990 Act’s section 6, and that reallocation affects who is subject to which statutory obligations under the 1990 Act and related Acts. For example, persons covered by an alternative scheme (as defined) remain subject to the rules of that scheme and any relevant obligations under SG legislation; if an employer fails to make the employer contributions contemplated under an alternative scheme, the statutory remedies under the relevant contributions law would remain available.

No new sanctioning authority created. The Declaration does not create new enforcement bodies or expand sanctioning powers; it operates by classification. Any enforcement action therefore will be taken under the 1990 Act, the statutes that govern the alternative schemes, or general administrative law principles where administrative decision‑making is challenged.

Proof, records and disputes. Because the Schedule is heavily dependent on historic facts, elections, preserved benefits and documentary requests, the practical enforcement environment will be record‑intensive. Employers and administrators will need records proving the historical circumstances (employment dates, prior elections under the 1976 Act or the 1922 Act, preserved benefits, written requests). Disputes about classification will be resolved through the administrative review and judicial review processes available under the governing statutes and administrative law; the Declaration itself does not set a novel dispute resolution mechanism.

The Declaration is explicitly structured to operate in tandem with multiple Commonwealth and Territory statutes. Section 3 contains definitions that refer to, and import meaning from, the Superannuation Act 1922 (1922 Act), the Superannuation Act 1976 (1976 Act), the Superannuation Act 1990 (1990 Act), the Retirement Savings Account Act 1997, the Superannuation Guarantee (Administration) Act 1992, and the Superannuation Industry (Supervision) Act 1993 (SIS Act). The Schedule and text also reference the Public Service Act (in its various iterations), the Repatriation Institutions (Transfer) Act 1992, and Territory public sector legislation (Public Sector Management Act 1994 (ACT) and its transitional provisions), as well as several named Commonwealth Acts (Air Services Act 1995; Australian National University Act 1991; Australian Postal Corporation Act 1989; University of Canberra Act 1989). These cross‑references produce a network of interactions.

Importation of definitions and prior elections (s 3 note). The Declaration expressly instructs that terms defined in the 1990 Act have the same meaning in this Declaration (s 3 note). This means many substantive concepts such as “PSS member,” “designated employer,” “preserved benefit,” or other statutory terms must be read with reference to the 1990 Act. The Schedule frequently hinges on prior statutory elections or declarations made under the 1976 Act (for example, s 244(1)); those historical statutory acts control whether a person qualifies for exclusion today.

Overlap with Superannuation Guarantee rules. The definition of “alternative superannuation scheme” excludes schemes to the extent that participation in the scheme on the person’s behalf is “for purposes solely related to satisfying obligations under the Superannuation Guarantee (Administration) Act 1992” (s 3(1)(b)(iii)). This carve‑out prevents SG‑only arrangements from being treated as alternative schemes for the purposes of exclusion. The interaction means that where an employer contributes only to meet SG obligations, that scheme is not an “alternative superannuation scheme” for the Declaration’s purposes. Conversely, an employer contribution over the SG rate can shift an arrangement into the “alternative scheme” category (example in s 3(1)).

SIS Act interactions. Schedule Items 35 and 36 directly reference the SIS Act. Item 35 excludes a person whose PSS benefits “become compulsorily payable” under the SIS Act. Item 36 addresses persons in respect of whom contributions to a regulated superannuation fund cannot be accepted under the SIS Act (contributions‑barred persons). These Items modify membership treatment in response to the operation of SIS rules; they preserve some exclusions but also create exceptions where prior PSS membership existed and was continuous.

Transitional and territory laws. Several Items implement transitional arrangements arising from staff transfers and public sector reform. For example, s 4(2) makes Item 34 cease to have effect for a person if that person is permanently appointed to the Australian Public Service after the staff transfer day as defined in s 3 of the Repatriation Institutions (Transfer) Act 1992. Items 12, 32 and 37 directly reference transitional provisions in Territory legislation (Australian Trade Commission transitional provisions, the Public Sector Management (Consequential and Transitional Provisions) Act 1994 (ACT), and similar Territory provisions). Items 13-17 also track appointments consequent on State Public Service transitions. The instrument therefore operationalises cross‑jurisdictional transfers.

Interaction with alternative schemes and employers’ contractual obligations. Several Schedule Items depend on employers’ agreements to pay amounts in respect of benefits or contributions in alternative schemes (Schedule Item 8(d)). The Declaration preserves the legal effect of these contractual or administrative arrangements by excluding those employees from s 6. The interaction therefore relies on both statutory definition and underlying contractual arrangements which must be enforceable under general law.

Amendment interaction. The Declaration has been amended repeatedly (see endnotes). Those amendments adjust who is excluded, reflecting later policy choices made by Parliament or the responsible Minister under the instrument‑making power in the 1990 Act. Amendments of 2019, 2021, 2022 and 2025 added or altered Items (for example, ASIC employees in Item 44, Judges in Item 41, and ACT/NT government body items in the 2025 amendments). Administrators must therefore read the Declaration together with its amendment history to determine current exclusions.

The compilation is current to 6 March 2025 and incorporates amendments shown in the endnotes (compilation note). The Declaration has a substantial amendment history; the endnotes (Endnote 3 and Endnote 4) list amending statutory rules and registration details. Key milestones from the legislation history include:

• Original registration: Statutory Rules No. 217, 1995; commencement 1 July 1995 (Endnote 3 table).
• Numerous early amendments in the late 1990s and 2000s (1995 No. 233; 1996 Nos 4 and 172; 1997 Nos 71 and 324; 1998 No. 243; 1999 Nos 168, 277, 299, 320; 2000 No. 42), each with their own commencement dates noted in the Endnote 3 table.
• Superannuation (PSS) Membership Exclusion Amendment Declaration 2005 (No. 1) registered 29 June 2005, commenced 1 July 2005 (Endnote 3).
• Amendment Declaration 2007 (No. 1) (22 Nov 2007; commenced 23 Nov 2007).
• Superannuation (PSS) Membership Exclusion Amendment Declaration 2019 (No. 1) registered 26 Feb 2019; commenced 1 July 2019 (Endnote 3).
• Superannuation (PSS) Membership Exclusion Amendment (Judges) Declaration 2021 registered 17 Aug 2021; Schedule 1 commenced 1 Sept 2021 (Endnote 3).
• Superannuation Legislation (CSS and PSS Membership Eligibility,ASIC Employees) Amendment Declaration 2022 registered 12 Apr 2022; Schedule 1 (items 7-9) commenced 13 Apr 2022 (Endnote 3).
• Superannuation Legislation (CSS, PSS and PSSAP Membership) Amendment Declaration 2025 registered 4 Mar 2025; Schedule 1 (items 16-19) commenced 5 Mar 2025 (Endnote 3).
• Superannuation Legislation (CSS, PSS and PSSAP Membership) (ACT and NT Government Bodies) Amendment Declaration 2025 registered 5 Mar 2025; Schedule 1 (items 13, 14) commenced 6 Mar 2025 (Endnote 3).

The amendment history at the provision level (Endnote 4) records which sections were amended and which Items were added or changed. It records that s 3 has been amended multiple times (No. 71, 1997; No. 1, 2005; F2022L00595; F2025L00283) and that s 4 has been amended (No. 243, 1998; No. 168, 1999; No. 1, 2005). The Schedule has numerous recorded amendments across the years (the endnote table lists all the amending instruments up to F2025L00293).

Practical effects of amendment history. Amendments have been used to (a) add specific cohorts to the excluded list (for example Item 44 for certain ASIC employees, Item 41 for particular judges); (b) adjust transitional treatment arising from public sector restructuring (items relating to ACT and NT bodies in 2025); and (c) respond to changes in employer arrangements (Icon Water Limited Item 42). Each amendment is registered and its commencement date specified; administrators must check the Register for the compiled law for any uncommenced amendments (compilation note, “Uncommenced amendments”).

Editorial and compilation notes. The compilation contains editorial changes made under the Legislation Act 2003; those do not change the law but may affect presentation (Endnote 1 editorial changes). The endnotes also identify how individual provisions were affected (Endnote 4 table). The most recent compilation includes amendments to the Schedule and s 3 up to F2025L00293.

This compilation of the Declaration does not include or cite any litigation. The text of the instrument contains no references to judicial decisions or case law and the endnotes do not record disputes or court rulings. The instrument itself is a legislative declaration and administratively focused; any litigation that might challenge classification, administrative determinations, or the interaction of the Declaration with other statutes would arise under the 1990 Act, administrative law or statutes such as the SIS Act or Superannuation Guarantee (Administration) Act 1992.

Practical note for counsel or compliance teams. To identify litigation risk or precedent applicable to the Declaration, a discrete search of cases under the 1990 Act, the 1976 Act and related statutes would be required. The Declaration’s many time‑dependent and factual criteria (historic dates of appointment, whether a person “has asked to be treated as a PSS member,” preserved benefits, membership of alternative schemes, top‑up arrangements) create typical grounds for administrative review or statutory challenge where factual disputes arise. Because the Declaration reserves documentary evidentiary proof (for example, written requests in approved forms; preserved benefit records), litigation, if commenced, would likely focus on evidentiary questions and the correct legal characterisation of particular arrangements (is a scheme an “alternative superannuation scheme” per the s 3(1) definition; does the particular contribution arrangement qualify as a top‑up arrangement under s 3(1)?).

No cases are named in the instrument; where parties require precedent, they must search external case law databases for decisions involving the 1990 Act, the 1976 Act, and the particular administrative bodies referenced (the Board, CSC and relevant scheme administrators). The absence of litigation references in the compilation does not imply there has been none; it only reflects that the instrument’s text and endnotes do not record judicial decisions.

This Declaration contains several technical traps and administratively consequential details that can catch employers, administrators and advisers if not carefully applied.

Definition traps , “alternative superannuation scheme” (s 3(1)). The definition is broad but the exclusions are highly specific. An RSA will not be an alternative scheme if a person makes voluntary contributions only; it becomes an alternative scheme if the employer contributes above the SG rate (s 3(1) example). Consequence: employers augmenting voluntary arrangements may inadvertently convert a previously non‑covered RSA into an “alternative scheme”, altering employees’ exclusion status.

Top‑up arrangement mechanics (s 3(1) and (2)). Two features must coexist: (a) the payer contributes on behalf of the payee and those contributions are part of overall remuneration (not additional); and (b) the arrangement is entered on the basis that the payee remains/ becomes a PSS member and the payer remains/becomes the designated employer. If the arrangement meets these particularities, s 3(2) will treat a person as a member “for top‑up purposes.” The “part of overall remuneration” requirement is a factual test and may be litigated or disputed if remuneration packaging is unclear.

Preserved elections and timing windows. Many Schedule Items exclude people only if they “have not asked to be treated as a PSS member” or if they “did not ask to be treated as an eligible employee” before particular dates. Those historical actions are pivotal. Employers and administrators must keep archival records of such written requests or elections. Item 42’s 28‑day window for Icon Water Limited employees is an example of a short opt‑out/opt‑in timeframe that imposes a tight administrative duty to notify employees and to process their written choices promptly.

Contributions‑barred persons and SIS Act consequences (Schedule Items 35-36). Item 36 excludes contributions‑barred persons from s 6 but preserves exceptions for persons who were PSS members and have remained so. The declaration therefore follows SIS Act constraints but distinguishes those with prior continuous PSS membership. Determining the exact time when a person becomes “contributions‑barred” under the SIS Act is therefore consequential.

Ambiguity over “prescribed person” and top‑up treatment (s 3(1)(b)(v)). The term “prescribed person” is used in the alternative scheme definition to create an exclusion “for a prescribed person , a scheme of which the person is taken, under subsection (2), to be a member for top‑up purposes” (s 3(1)(b)(v)). The Declaration does not itself list who is a “prescribed person”; administrators must therefore locate any prescription elsewhere (likely in subordinate instruments or the 1990 Act) to ensure correct treatment.

Administrative approvals and forms. Schedule Item 1 and Item 44 reference approvals by the “Board” and requests “in a form approved by CSC,” respectively. Failure to follow the correct formality (wrong form, late filing, not lodged with the specified body) can result in loss of the right to be treated as a PSS member or in misclassification.

Cross‑legislation timing mismatches. The Declaration’s Items reference various commencement dates, historic appointment dates and other statutory milestones (for example, the staff transfer day under the Repatriation Institutions (Transfer) Act 1992). Determining which date applies to a particular person may require consulting the other Acts and transitional instruments cited in the Schedule. Mistakes in temporal application can lead to erroneous exclusions or misapplied contributions.

Errors in employer practice. Employers who rely on an employee’s alternative scheme status without confirming the legal qualifications can expose themselves to remedial claims if the employee should have been treated as within the scope of s 6. Conversely, employers who mistakenly enrol employees in PSS where an exclusion applies may overpay or misallocate contributions, requiring later adjustment.

Amendment vigilance. The Schedule has been amended repeatedly (see Amendment history). New Items may create discrete exclusions with specific procedural requirements (for example, the ASIC Item 44 requires an approved form to be submitted to CSC). Practitioners should check the current instrument and the Register for any uncommenced amendments (compilation note) before acting.

Typographical or drafting oddities. The instrument includes items with narrowly framed factual predicates (e.g., Item 34 ceases to have effect upon permanent appointment after a defined staff transfer day , s 4(2)). The precise legal meaning of phrases such as “continuously been an officer” or “has not asked to be treated as a PSS member” will be fact‑sensitive and may require careful evidentiary analysis.

For employers, administrators and advisers responsible for classifying employees, complying with the Declaration requires a combination of historical record‑checking, current process controls and clear employee communications.

1. Identify affected workforce segments. Map employees against the Schedule Items. This will require checking historical employment dates, appointment instruments, whether an employee was a member of an alternative superannuation scheme at specified historical dates, and whether the employee made prior statutory elections or written requests (many Schedule Items depend on such prior acts).

2. Verify alternative scheme status using the s 3(1) definition. Do not assume any superannuation account is an “alternative superannuation scheme” without testing the definition and the listed exclusions (s 3(1)(a)-(b)(i)-(v)). In particular, check whether employer contributions are only to meet SG obligations (excluded from being an alternative scheme per s 3(1)(b)(iii)) or whether employer contributions are above SG, which can convert an arrangement into an alternative scheme (s 3(1) example).

3. Check for top‑up arrangements. If contributions to a scheme are made under a remuneration packaging or top‑up arrangement, confirm whether the arrangement meets s 3(1)’s requirements (contributions made by another person on behalf of the payee, contributions part of total remuneration, and the arrangement entered on the basis that the payee remains or becomes a PSS member and the payer remains or becomes the designated employer). If so, apply s 3(2) and consider whether the person is to be taken as a member “for top‑up purposes.”

4. Record and preserve elections and written requests. Given the Schedule’s repeated reliance on whether a person “has not asked to be treated as a PSS member” or has made particular elections under the 1976 Act, maintain searchable, dated records of any written requests or elections. Where the Schedule requires a request “in a form approved by the Board” or “in a form approved by CSC,” obtain the correct form from the administering body and ensure that it is completed, dated and lodged with the appropriate office.

5. Implement administrative workflows for time‑limited windows. For Items with explicit short windows (e.g., Schedule Item 42’s 28‑day window for Icon Water Limited new employees), create onboarding checklists that alert HR and payroll to communicate options to new starters and to capture any written elections within the prescribed period.

6. Coordinate with scheme administrators. Employers should liaise with the PSS administrators and with administrators of alternative schemes to confirm whether an employee is to remain in an alternative scheme or be treated under the 1990 Act. Where the Schedule contemplates the Commonwealth or an authority paying amounts in respect of benefits or contributions (Schedule Item 8), obtain and document any such agreement in writing (terms, scope, durations).

7. Handle SIS Act consequences. For persons affected by the SIS Act (Schedule Items 35 and 36), verify whether PSS benefits have become compulsorily payable or whether a person is contributions‑barred. If so, apply the Schedule’s exceptions (for people who were PSS members and have remained so) and consult the SIS Act for the technical timing and notification requirements.

8. Maintain change control for amendments. Because the Declaration has been amended many times (see Amendment history), subscribe to the Federal Register of Legislation or internal legal update services to capture new instrument registrations and commencement dates. Where an amendment adds an Item affecting an employer’s workforce, implement the revised classification rules promptly.

9. Prepare documentary evidence for disputes and audits. Maintain personnel files that record employment dates, appointment instruments, elections under earlier superannuation Acts, preserved benefit statements, correspondence about superannuation choice, and copies of any forms lodged with the Board or CSC. These records will be central to any administrative review, audit or dispute.

10. Seek specialist advice where the facts are uncertain. The definitions of “alternative superannuation scheme” and “top‑up arrangement” are fact‑sensitive. If the character of a scheme or remuneration packaging is uncertain, obtain a legal opinion before changing an employee’s scheme status. Similarly, if an employee claims to have made a prior election or written request, but the employer lacks the documentation, consider processes to confirm or rectify the position in accordance with the 1990 Act’s administrative procedures.

Key documents to consult alongside the Declaration. Practitioners should read the 1990 Act (especially s 6 and the definitions in s 3 of that Act), the 1976 and 1922 Acts where older elections are relied upon, the Superannuation Guarantee (Administration) Act 1992 (to test SG‑only arrangements), the SIS Act (for contributions‑barred and compulsory payment consequences), the Retirement Savings Account Act 1997 (for RSA definitions), and any relevant transitional Territory or Commonwealth Acts referenced in the Schedule (for example, the Repatriation Institutions (Transfer) Act 1992 for staff transfer day identification).

Record checklist for administrators (practical). For each employee who might fall within a Schedule Item, keep a folder or electronic record containing:

• Employment/appointment start date and any prior public sector employment history matching the Schedule predicates.
• Evidence of membership of an alternative scheme (trust deed, contribution statements, employer contribution details).
• Any written request or election under earlier Acts (s 244(1) 1976 Act declarations, written requests not to be treated as eligible/PSS members).
• Preserved benefit statements or PSS membership records.
• Any forms lodged with the Board or CSC and receipts/acknowledgements of those lodgements.
• Details of any top‑up arrangements (contracts or remuneration packaging documents showing contributions are part of overall remuneration and the basis on which the arrangement was entered).

Following these steps will align administrative practice with the Declaration’s mechanical operation, reduce reclassification risk, and provide documentary support in the event of dispute or audit.