Draft Practice Statement Law Administration PS LA 2026/D3 Payday Super: exceptional circumstances determinations
The Australian Bookkeepers Association, Chartered Accountants Australia and New Zealand, CPA Australia, the Institute of Certified Bookkeepers, the Institute of Public Accountants, the SMSF Association and The Tax Institute (together, the Joint Bodies) write to you as the peak professional accounting, bookkeeping, tax, financial advice and superannuation bodies in Australia. We welcome the opportunity to make a submission to the Australian Taxation Office (ATO) regarding its consultation on the draft PS LA 2026/D3 (the draft PS LA).
The Joint Bodies acknowledge the important role that the draft PS LA is intended to play in supporting the administration of the exceptional circumstances framework under Payday Super. In particular, we consider that the draft PS LA provides a clear articulation of the Commissioner’s discretion and the types of events that may justify relief including natural disasters and widespread information and communication technology (ICT) outages (“disasters and technology outages”).
However, from the employer and intermediary perspectives, the draft PS LA gives rise to a number of significant practical challenges in its current form. As outlined in our submission, the framework relies heavily on employer self-assessment, operates within a compressed compliance timeframe, and does not provide sufficient guidance on key operational issues, particularly in the period between a disruption occurring and a determination being made. These aspects create uncertainty for employers seeking to comply in good faith and potentially increase the risk of unintended non-compliance outcomes.
We are also concerned that the draft PS LA does not fully reflect the complexity of modern superannuation contribution processes, which involve multiple systems, intermediaries and dependencies beyond the employer’s direct control. In this context, issues such as intermediary failure, incomplete information during outages, and the role of agents require further clarification to ensure that the framework operates effectively in practice.
Our submission, therefore, focuses on identifying areas where additional guidance, clarification, or refinement would improve the framework’s operability and fairness, while maintaining its intended policy boundaries. We have recommended enhancements and clarification regarding communication and notification, evidentiary expectations, the timing and operation of determinations, and the interaction of the PS LA with broader Payday Super obligations.
We acknowledge that our submission contains many requests for further guidance for employers, their advisers and others. It may be that the ATO decides that some of our requests should not be in the finalised PS LA. In these cases, we suggest that our requests are dealt with in other formal ATO guidance publications as soon as possible.
We would welcome the opportunity to continue engaging with the ATO as the draft PS LA and, if relevant, other related formal guidance publications are finalised to ensure that the framework is both administratively workable and aligned with the practical realities faced by employers and their advisers.
Our detailed response to the draft PS LA is contained in Appendix A.