Superannuation Industry (Supervision) Regulations 1994

PART 5 - BENEFIT PROTECTION STANDARDS  

Division 5.3 - Treatment of minimum benefits  

REGULATION 5.08   HOW MINIMUM BENEFITS ARE TO BE TREATED  

5.08(1)  


For subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that the trustee of a fund must ensure that a member ' s minimum benefits in the fund are maintained in the fund until the benefits are:


(a) cashed as benefits of the member, other than for the purpose of the member ' s temporary incapacity; or


(b) rolled over or transferred as benefits of the member; or


(c) transferred, rolled over or allotted under Division 6.7 .

5.08(1A)  


Subregulation (1) does not apply if, under a law of the Commonwealth, a State or a Territory mentioned in the table, a court makes a forfeiture order (however called) forfeiting part or all of the member ' s benefits in the fund to the Commonwealth, a State or a Territory.


Item Law Provision(s)
Commonwealth
1.1 Proceeds of Crime Act 2002 Section 47
Section 48
Section 49
Section 92
New South Wales
2.1 Confiscation of Proceeds of Crime Act 1989 Subsection 18(1)
2.2 Criminal Assets Recovery Act 1990 Section 22
Victoria
3.1 Confiscation Act 1997 Division 1 of Part 3
Section 35
Part 4
Subsection 157(6)
Queensland
4.1 Criminal Proceeds Confiscation Act 2002 Section 58
Section 58A
Section 151
Part 5 of Chapter 3
Western Australia
5.1 Criminal Property Confiscation Act 2000 Section 30, to the extent that it applies to confiscation under section 6 in satisfaction of a person ' s liability under section 20
Section 30, to the extent that it applies to confiscation under section 7
South Australia
6.1 Criminal Assets Confiscation Act 2005 Section 47
Tasmania
7.1 Crime (Confiscation of Profits) Act 1993 Section 16
Australian Capital Territory
8.1 Confiscation of Criminal Assets Act 2003 Section 54
Section 58
Section 62
Section 67
Northern Territory
9.1 Criminal Property Forfeiture Act 2002 Section 75
Section 76
Section 80
Section 96
Section 97
Section 99

5.08(2)  


Subregulation (1) does not apply in relation to an amount of a member ' s minimum benefits in an accumulation fund if:


(a) the amount is attributable only to employer contributions (other than mandated employer contributions); and


(b) there is a written agreement between the member of the fund and the member ' s employer that:


(i) was entered into before the commencement of this subparagraph; and

(ii) requires the employer to make the employer contributions (other than mandated employer contributions) to the fund for the benefit of the member; and

(iii) specifies that if the member ' s employment with the employer ends at or after the end of a period specified in the agreement, the employee is entitled to all of the amount; and

(iv) specifies that if the member ' s employment with the employer ends before the end of the specified period, the member is entitled only to a proportion of the amount; and


(c) the member ' s employment has ended before the end of the period mentioned in subparagraph (b)(iii).

5.08(3)  


In addition to subregulation (1), a trustee of an accumulation fund may allow an amount of a member ' s minimum benefits in the fund to be cashed as benefits of the member if:


(a) the cashing of the benefits is for the purpose of the member ' s temporary incapacity; and


(b) the amount:


(i) is not attributable to the member ' s member-financed benefits; and

(ii) is not attributable to the member ' s mandated employer-financed benefits.



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