Superannuation (PSSAP—Ordinary Employer-Sponsored Member Exclusion) Determination 2020

The determination rests on a small set of interlocking legal concepts and statutory cross‑references. First, the instrument uses the concept of an "ordinary employer‑sponsored member" as a legal category defined and treated in the Superannuation Act 2005. The instrument itself does not define that category; instead, it operates under subsection 18(10) of the Superannuation Act 2005 to exclude particular classes from being treated as ordinary employer‑sponsored members (s 3; s 5). The key conceptual mechanism is therefore negative specification: the instrument lists who cannot fall within a statutory category.

Second, the instrument links three other statutory constructs into the exclusion regime. The first is "members of the Australian Defence Force in respect of their military service" (s 5(a)). The phrase is categorical but not further defined in the determination; any legal interpretation of what counts as "in respect of their military service" must be drawn from other sources, including defence personnel law, superannuation rules applying to ADF service, or interpretive practice under the Superannuation Act 2005. The determination does not attempt to parse membership statuses, service types, or transitional arrangements for reservists or cadets; it simply places the label "not ordinary employer‑sponsored members" on that class.

Third, the instrument identifies judicial officeholders specified as "Judges of the Federal Circuit and Family Court of Australia (Division 2)" (s 5(b)). The insertion of that subparagraph is recorded in the compilation and amendment history (Endnote 3 indicates a 2021 amendment described as "Judges" Determination 2021). The effect of naming that judicial cohort is to remove them from ordinary employer‑sponsored membership, thereby making the Superannuation Act 2005 provisions that apply specifically to ordinary employer‑sponsored members inapplicable to those judges.

Fourth, the instrument incorporates persons covered by Division 1 of Part 2 of the Parliamentary Superannuation Act 2004 into the excluded class (s 5(c)). That cross‑reference imports into the exclusion regime whatever the Parliamentary Superannuation Act 2004 defines as falling within Division 1 of Part 2. The determination therefore relies on another statute’s definitional work rather than restating its content.

Conceptually, the instrument is an output of delegated rule‑making power under a parent Act. Section 3 expressly states the source of the instrument’s power (s 3: made under subsection 18(10) of the Superannuation Act 2005). The instrument’s legal form is a statutory determination designed to interact with a substantive Act. It does not itself specify enforcement mechanisms, penalties, reporting obligations, or administrative processes; those are left to the Superannuation Act or other enactments. The instrument is therefore best described as a classification tool that alters the boundary around a statutory category that triggers other legal consequences in the Superannuation Act 2005.

Finally, the compilation and endnotes introduce concepts relevant to legal operation: commencement and amendment dates, the fact that the compilation shows the text as amended and in force on 1 September 2021, and the existence of endnotes that record amendment history and editorial changes (compilation metadata at head, Endnotes 1-4). Those meta‑provisions matter in practice because administrators must apply the instrument as modified by later amendments shown in the compilation and must consult the endnotes for amendment provenance and commencement details.

The determination directly affects three identifiable groups of people by excluding them from the category of "ordinary employer‑sponsored members" under the Superannuation Act 2005 (s 5). Those groups, as listed in the instrument, are:

1. Members of the Australian Defence Force, in respect of their military service (s 5(a)). This label covers ADF personnel insofar as their status is tied to military service. The determination does not distinguish between ranks, full‑time or reserve status, or particular payment streams; it simply places the statutory exclusion on "members of the Australian Defence Force in respect of their military service." Practically this affects payroll, superannuation administration and classification for ADF employers and any superannuation fund that would otherwise consider ADF personnel as employer‑sponsored members under the Superannuation Act 2005.

2. Persons who hold office as Judges of the Federal Circuit and Family Court of Australia (Division 2) (s 5(b)). The inclusion of this cohort was effected by an amendment recorded in the compilation history (the Superannuation (PSSAP,Ordinary Employer‑Sponsored Member Exclusion) Amendment (Judges) Determination 2021), which is recorded as registered 12 August 2021 and commencing (Schedule 1) on 1 September 2021 (Endnote 3). Those judges will not be treated as ordinary employer‑sponsored members under ss 18(7) or 18(8A) of the Superannuation Act 2005, which affects which specific employer‑sponsored membership provisions of the Superannuation Act apply to them.

3. Persons to whom Division 1 of Part 2 of the Parliamentary Superannuation Act 2004 applies (s 5(c)). This is a cross‑statute class. Those covered by Division 1 of Part 2 of the Parliamentary Superannuation Act 2004 are, by operation of this determination, excluded from ordinary employer‑sponsored membership under the Superannuation Act 2005. The practical effect depends on who is captured by Division 1 of Part 2 of the Parliamentary Superannuation Act 2004; the determination does not restate those definitional particulars.

Beyond the persons explicitly named, the determination affects agencies and actors responsible for applying the Superannuation Act 2005 rules, including employers, superannuation fund trustees, payroll administrators and government departments charged with administering entitlements to the named classes. Those bodies must apply the exclusion list when deciding whether a person qualifies as an ordinary employer‑sponsored member under ss 18(7) or 18(8A) of the Superannuation Act 2005. The instrument does not itself set out administrative procedures, so the affected administrative actors will need to integrate the exclusion into existing compliance workflows and member classification systems.

Finally, the exclusion may affect third parties who rely on an individual's membership classification as part of contractual arrangements, benefits, or liabilities. By changing who is eligible to be an ordinary employer‑sponsored member, the determination can shift what statutory entitlements or obligations follow from that classification in the Superannuation Act 2005 framework. Determination users will therefore typically need to cross‑check the Superannuation Act and relevant employer or parliamentary superannuation rules to understand downstream effects.

The determination itself imposes no identified duties or rights in the operative text beyond specifying which classes "cannot be ordinary employer‑sponsored members" for the purposes of subsection 18(10) of the Superannuation Act 2005 (s 5). The instrument’s legal role is to trigger or exclude the application of existing duties and rights set out in the Superannuation Act 2005 and in the Parliamentary Superannuation Act 2004. Accordingly, to identify duties and rights that apply as a consequence of the determination, one must read the determination together with the referenced provisions in those Acts.

What the determination does is remove a set of persons from the statutory category that gives rise to a specific bundle of employer‑sponsored membership entitlements and employer obligations under the Superannuation Act 2005. The instrument does not spell out those entitlements and obligations; it confines itself to classification (s 5). The immediate administrative duty that follows for employers, trustees and administrators is to identify whether an individual falls within one of the excluded classes listed in s 5 and, if so, to cease treating that individual as an ordinary employer‑sponsored member under the Superannuation Act 2005. That duty to reclassify or to verify classification arises indirectly from the cross‑reference to ss 18(7) and 18(8A) in the operative provision (s 5).

Because the determination does not assert rights or duties directly, it also features no procedural protections, appeals routes, or transitional obligations within its text. Any procedural rules, appeal rights, or penalties for misclassification will be found, if at all, in the Superannuation Act 2005 or in other legislation; the determination does not create or modify them. The instrument’s endnotes emphasise that the compilation shows the law "as amended and in force on 1 September 2021" and record the amendment history (Compilation metadata and Endnote 3), which affects the moment from which relevant duties and rights attached to the changed classification come into effect.

For practical compliance, the duties and rights that administrators and employers must manage are therefore derived: the right of a person to be treated as an ordinary employer‑sponsored member under s 18(7) or s 18(8A) is removed where the person falls within s 5; conversely, the duty of an employer or trustee to apply the employer‑sponsored membership rules to that person is removed. The instrument signals who is outside the scope of the employer‑sponsored membership regime; the details of the associated employer duties (for example, contribution obligations, reporting, or entitlements on termination) remain located in the Superannuation Act 2005 and related instruments.

Administrators should note that the instrument also refrains from defining any procedural mechanism for verification or reclassification; there is no mechanism in the text for how an individual’s status is established, documented or challenged. The practical duty therefore falls on those administering the Superannuation Act to adopt verification steps, informed by the definitions and processes in the parent Act and other relevant laws, when applying the exclusion list in s 5.

The determination contains no provisions that create criminal offences, civil penalties, or a standalone enforcement regime. The instrument’s operative sections are limited to naming the instrument (s 1), citing its authority under subsection 18(10) of the Superannuation Act 2005 (s 3), and listing the classes of persons excluded from being ordinary employer‑sponsored members (s 5). The absence of penalty clauses or enforcement provisions in the determination itself means that any enforcement consequences for non‑compliance with the classification it mandates will flow from the Superannuation Act 2005 or other statutes, regulations, or agency policies rather than from this determination.

Because the instrument is made under subsection 18(10) of the Superannuation Act 2005 (s 3), the Superannuation Act will be the primary locus of statutory remedies, obligations and enforcement mechanisms that apply to membership classifications. This determination functions to change the set of persons to which those membership provisions and the enforcement apparatus of the Superannuation Act apply. Where the Superannuation Act contains offences, sanctions, or directions relevant to the treatment of employer‑sponsored members, an excluded person will not be within scope of those particular provisions in the same way an ordinary employer‑sponsored member would be. Administrative enforcement (for example, by the Australian Prudential Regulation Authority in respect of fund trustee obligations, or by the Australian Taxation Office in respect of contribution reporting) will depend on the content of those other statutes and regulatory instruments rather than on this determination.

The compiled instrument includes endnotes which document amendment and registration dates (Endnote 3), and editorial change notes (Endnote 1). Those procedural annotations are useful for enforcement contexts in which timing matters, since they identify when the instrument and its amendments took effect (for example, the instrument’s commencement on 7 March 2021 and the judges amendment commencing on 1 September 2021). Enforcement actors assessing retrospective compliance or liability will need to apply the correct version of the instrument as in force on the relevant date, using the compilation and endnotes to determine which version applies.

Practically, enforcement risk for employers or trustees arises from a failure to apply the exclusion where required or from misclassification in the other direction (treating an excluded person as an ordinary employer‑sponsored member). The determination does not prescribe the evidentiary standard for establishing membership status. Enforcement actors will therefore rely on the Superannuation Act 2005’s own compliance and penalty provisions and on administrative law principles when deciding how to address misclassification, including whether any penalties, remedial orders or directions should be applied.

In short, this instrument delegates the substantive enforcement content to the parent Act and other statutory regimes; it does not itself establish penalties or an enforcement procedure in its text.

The determination is expressly tied to the Superannuation Act 2005. Section 3 states that the instrument is made under subsection 18(10) of the Superannuation Act 2005 (s 3). Section 5 operates for "the purposes of subsection 18(10) of the Superannuation Act 2005" and thereby functions as a statutory instrument that modifies the application of subsections 18(7) and 18(8A) by listing classes of persons who cannot be ordinary employer‑sponsored members (s 5). That means that the effect of the determination must be read and applied in the context of the provisions of the Superannuation Act 2005 to which it refers. The instrument itself does not restate or amend ss 18(7), 18(8A) or 18(10); it uses the power conferred by 18(10) to list excluded classes.

The determination also cross‑references the Parliamentary Superannuation Act 2004. Section 5(c) names "persons to whom Division 1 of Part 2 of the Parliamentary Superannuation Act 2004 applies" as an excluded class. That is a direct statutory import: to know who falls into that class, administrators must consult the Parliamentary Superannuation Act 2004 and locate the set of persons captured by Division 1 of Part 2. The determination thereby creates an inter‑statute dependency: classification under the Superannuation Act 2005 will depend on how persons are categorised under the Parliamentary Superannuation Act 2004.

The instrument does not purport to amend or override definitions, entitlements or obligations in those Acts; it simply sets out who is excluded from one statutory membership category by reference to other statutory categories. This design means that any change to the Parliamentary Superannuation Act 2004 or to the Superannuation Act 2005 could change the practical universe of people affected by the determination without the determination itself being amended. Administrators must therefore monitor changes to those Acts in order to maintain accurate classification.

The compilation endnotes indicate amendment history and commencement dates that affect interoperability and timing. Specifically, the instrument was registered on 24 December 2020 and commenced on 7 March 2021; a related amending determination (Judges) was registered 12 August 2021 and its Schedule 1 commenced 1 September 2021 (Endnote 3). Those dates are consequential when applying the instrument alongside other laws that also have temporal or transitional provisions.

Because the instrument excludes members of the Australian Defence Force "in respect of their military service" (s 5(a)), it will interact, in practice, with legislative and administrative frameworks governing defence service entitlements, payroll, and any defence‑specific superannuation arrangements. The determination does not specify how distinctions such as civilian defence employees or contracted personnel are to be treated, so the interface with employment law, defence service law, and superannuation policy must be handled by cross‑reference and operational guidance.

Finally, the instrument contains no express savings, transitional or application clauses within its text; the endnotes and compilation metadata provide the only guidance about commencement and amendment timing. Where other laws impose transitional rules for membership changes, those rules will govern. The determination’s short form and reliance on cross‑references means that its legal interaction with other statutes is mediated entirely by those statutes rather than by elaborate provisions inside the determination itself.

The compilation and endnotes attached to the instrument set out its amendment history in summary form. The instrument as compiled shows the text of the law "as amended and in force on 1 September 2021" (Compilation metadata). The legislation history in Endnote 3 identifies two registered instruments:

• The original Superannuation (PSSAP,Ordinary Employer‑Sponsored Member Exclusion) Determination 2020 was registered 24 December 2020 (F2020L01712) and commenced on 7 March 2021 (s 2(1) item 1) (Endnote 3).
• A subsequent instrument, the Superannuation (PSSAP,Ordinary Employer‑Sponsored Member Exclusion) Amendment (Judges) Determination 2021, was registered 12 August 2021 (F2021L01097) and its Schedule 1 commenced on 1 September 2021 (s 2(1) item 2) (Endnote 3).

Endnote 4, the amendment history table, records that section 5 was amended by F2021L01097 (Endnote 4: "s 5..................... | am F2021L01097"). The endnote references indicate that changes to the content of the classes listed in s 5 were effected by the 2021 amendment, which is described in the legislation history as the "Judges" Determination 2021. The compilation thereby incorporates the judges clause (s 5(b)) as at 1 September 2021.

The endnotes also note editorial changes and explain that editorial and presentational changes may be made under the Legislation Act 2003 by First Parliamentary Counsel for compilation purposes; those editorial changes are not intended to change legal effect (Endnote 1). Endnote 4 also records that certain sections (s 2 and s 4) were repealed by provisions of the Legislation Act 2003 (Endnote 4 shows "s 2..................... | rep LA s 48D" and "s 4..................... | rep LA s 48C"), indicating that the compiled instrument reflects those repeals.

For practical purposes, the key amendments to track are the original instrument (registered December 2020, commenced March 2021) and the 2021 judges amendment (registered August 2021, commenced September 2021). Administrators should consult the legislative history to confirm which version applied on a particular date, because the effect of the exclusion on membership classification depends on whether an amendment had commenced at the relevant time. The endnotes provide the formal registration and commencement details necessary for that temporal mapping (Endnote 3).

The compilation also makes clear the scope of the endnotes themselves (Endnote 1), explaining that the endnotes include information about amending laws and the amendment history of provisions of the compiled law. That meta‑information is necessary to reconstruct the sequence of amendments and to ascertain when specific textual changes took legal effect.

The instrument itself contains no litigation history and the compilation’s endnotes do not list any cases that have interpreted or challenged this specific determination. The text of the determination is short and declaratory, setting out three classes of persons excluded from being ordinary employer‑sponsored members (s 5), and the endnotes provide legislative and amendment history but do not record judicial consideration or disputes.

Where litigation might arise in practice, it would likely concern the interface between this determination and the Superannuation Act 2005 or the Parliamentary Superannuation Act 2004, rather than the determination’s text in isolation. Possible litigation points could include the proper scope of phrases used in the determination , for example, what it means to be an ADF member "in respect of their military service" (s 5(a)), or whether a particular judicial officer falls within the description "Judges of the Federal Circuit and Family Court of Australia (Division 2)" (s 5(b)). However, the compilation contains no reported decisions, court proceedings or adjudications addressing those interpretive questions in relation to this instrument.

In the absence of instrument‑specific litigation recorded in the endnotes, dispute resolution and judicial review would be governed by the usual channels for administrative and statutory interpretation matters. Challenges could take the form of administrative review, statutory appeal, or judicial review proceedings if a person or body were aggrieved by a classification decision made by a trustee, employer or an administrative agency that relied on this determination. Any such litigation would require parties to examine the Superannuation Act 2005 to identify the downstream legal consequences of the exclusion created by the determination.

For users needing to assess litigation risk, the relevant practical point from the instrument and its endnotes is that the determination is primarily classificatory and short. Its simplicity reduces the number of textual disputes about internal wording but increases the importance of disputes over cross‑referenced material and external definitions. Absent any recorded litigation in the compilation endnotes, researchers and practitioners should consult case law addressing the underlying Acts (Superannuation Act 2005; Parliamentary Superannuation Act 2004) to understand how courts have treated analogous membership classification questions and to infer how disputes about this determination might be approached. The compiled instrument itself, however, records no litigation history.

This instrument’s brevity and reliance on cross‑references create several practical risk points worth noting for administrators, employers, trustees and advisors. The following are concrete issues drawn from the instrument’s text and endnotes that may cause operational or legal surprises:

1. Classification depends on other Acts. Section 5 excludes persons who are covered by Division 1 of Part 2 of the Parliamentary Superannuation Act 2004 (s 5(c)). The determination does not define who those persons are; administrators must consult the Parliamentary Superannuation Act 2004 to identify the class. Failure to do so could lead to misclassification. The determination’s cross‑statutory dependence is deliberate but increases administrative complexity.

2. Ambiguous phrasing for ADF members. The phrase "members of the Australian Defence Force in respect of their military service" (s 5(a)) may raise factual borderline cases (for example, personnel on secondment to civilian agencies, contracted personnel, or individuals with mixed service and civilian duties). The determination provides no interpretive guidance, so administrators will need to rely on definitions and guidance in defence legislation and in the Superannuation Act 2005. That is a practical gotcha for payroll and benefits staff who must decide whether a particular payment or status triggers the exclusion.

3. Timing and amendment sequencing matter. The instrument was registered in December 2020 and commenced in March 2021; an amendment adding judges was registered in August 2021 and its Schedule 1 commenced 1 September 2021 (Endnote 3). Organisations dealing with membership classification must use the correct version for the relevant time period. Mistakes in applying a pre‑amendment or post‑amendment version could affect liabilities and entitlements.

4. No procedural or evidentiary rules. The determination does not set forth how a person’s status is to be evidenced, documented or challenged. There is no requirement in the instrument for paperwork, verification thresholds, or appeal mechanisms. That procedural gap means trustees and employers must design and record their own verification processes to avoid disputes, and absence of standardised practice creates inconsistency risk.

5. No express transitional provisions in the instrument. The determination does not include transitional or savings clauses addressing people whose status changes near the commencement dates. If an individual’s status changes , for example, an ADF member leaving service or a person becoming subject to Division 1 of Part 2 of the Parliamentary Superannuation Act 2004 , the instrument does not prescribe the timing or mechanism for reclassification. Employers and trustees will need to consider relevant transitional rules in the Superannuation Act or create administrative processes.

6. Enforcement delegated to other Acts. Because this instrument contains no penalties or enforcement provisions, the practical consequences of misclassification or non‑compliance derive from other statutes or regulatory regimes. That means that parties need competence in the enforcement provisions of the Superannuation Act 2005 and any relevant regulatory instruments. Overlooking that delegation is a common operational mistake.

7. Potential for administrative mismatch with internal policies. Many employers and superannuation funds have internal membership categories and system fields that may not map neatly to the statutory labels used here. Funds must ensure that internal classifications are synced with the legal exclusion classes to avoid reporting errors or incorrect benefits administration.

8. Amendment and editorial changes monitoring. The endnotes signal that editorial changes and modifications can occur under the Legislation Act 2003 and that some sections were repealed as part of editorial or legislative housekeeping (Endnote 4). Practitioners should not assume a stable text; they need to monitor the legislation register for subsequent amendments or uncommenced changes that may affect application.

Each of these matters follows directly from the text and endnotes of the instrument. They are practical implementation risks rather than doctrinal critiques: the instrument names three excluded classes (s 5), cites the statutory source (s 3), and the compilation records the amendment and registration timeline (Endnote 3). Users should therefore plan classification procedures, record retention and cross‑statutory checks in light of these concrete gaps and dependencies.

Compliance with this determination requires concrete administrative steps because the instrument itself is classificatory: it tells administrators who cannot be treated as ordinary employer‑sponsored members under the Superannuation Act 2005 (s 5). The following actions follow directly from the instrument’s text, its cross‑references, and the compilation endnotes; they are practical steps for employers, trustees, payroll teams and advisers.

1. Legal cross‑check. Immediately consult the Superannuation Act 2005 (subsections 18(7), 18(8A) and 18(10)) to determine the substantive legal consequences of being an ordinary employer‑sponsored member. The determination operates under subsection 18(10) (s 3), so compliance requires understanding what obligations and entitlements the Superannuation Act attaches to that status.

2. Identify the classes. Use section 5 as the exclusion checklist. For each person on payroll or in trustee records, check whether they fall within any of the classes in s 5:

   • Are they a member of the Australian Defence Force in respect of their military service? (s 5(a))
   • Do they hold office as a Judge of the Federal Circuit and Family Court of Australia (Division 2)? (s 5(b))
   • Are they a person to whom Division 1 of Part 2 of the Parliamentary Superannuation Act 2004 applies? (s 5(c))

3. Consult source statutes for definitions. For persons possibly captured by s 5(a) or s 5(c), consult defence law and the Parliamentary Superannuation Act 2004 respectively to determine coverage. The determination does not define these categories internally; it relies on the source statutes.

4. Update classification and systems. Where an individual falls within s 5, update membership classification records to record that they are not an ordinary employer‑sponsored member under the Superannuation Act 2005. Ensure payroll, trustee, and member administration systems reflect the correct classification and that contribution, reporting and benefit workflows are adjusted accordingly.

5. Document evidence and rationale. Because the determination contains no procedural verification scheme, record the evidence relied upon to categorise each person (appointment letters, service records, statutory references). Maintaining clear documentation will assist in any future audits, regulatory enquiries or disputes.

6. Time‑frame awareness. Use the compilation endnotes to determine which version of the instrument applied on any given date. The original determination commenced 7 March 2021 and the 2021 judges amendment commenced 1 September 2021 (Endnote 3). Apply the correct version for historical classification and for any obligations that depend on temporal cut‑offs.

7. Coordinate with trustees and regulators. Notify relevant fund trustees where reclassification affects membership entitlements or reporting. If a trustee relies on statutory classification for prudential or reporting purposes, confirm whether that trustee requires additional documentation or processes to reflect the change.

8. Reassess on status change. Implement an event‑driven reassessment process so that when an individual’s status changes (for example, a person leaves ADF service, a judicial appointment is made or a person’s parliamentary status changes), the classification is rechecked against s 5 and any necessary reclassification steps are taken.

9. Monitor legislative developments. The instrument is short and cross‑referential; changes to the Superannuation Act 2005 or to the Parliamentary Superannuation Act 2004 can alter who is excluded without an amendment to this determination. Subscribe to the legislation register or legal update services to capture future amendments or uncommenced changes referenced in endnotes.

10. Seek legal or regulatory advice where uncertain. If the factual circumstances are borderline , for example, secondments, mixed duties, dual roles, or unclear application of the Parliamentary Superannuation Act 2004 , obtain a legal opinion referencing the exact statutory provisions and the version of the instrument in force on the relevant date.

These steps derive from the instrument’s structure: it is a targeted determination made under s 18(10) of the Superannuation Act 2005 (s 3) and its operative effect is to exclude the classes listed in s 5 from ordinary employer‑sponsored membership. Because the instrument provides no procedural detail, compliance is chiefly an exercise in accurate cross‑referencing, record‑keeping and systems updates aligned to the relevant dates in the endnotes (Endnote 3).