The trustee of the fund must give to the non-member spouse information about an event if the trustee reasonably believes that:
the trustee must inform the non-member spouse that the member spouse has lodged the notice or made the request.
The information required under subregulation (2) or (2A) must be given before, or as soon as practicable after, the occurrence of the event.
there is at least 1 policy committee established for that group.
there is at least l policy committee established for that group.
Subregulation (1) is not to be taken as limiting by implication the functions and responsibilities of the trustee.
In relation to each policy committee of a public offer superannuation fund, the trustee of the fund must:
A meeting may be held wholly or in part by means of a telephone conference connection among the committee members and, if a representative of the trustee is to attend, the representative.
The trustee must arrange for a representative of the trustee to attend each meeting of the committee that the committee requests the trustee to do so.
A policy committee of a public offer superannuation fund may dissolve itself, and if it does so the trustee of the fund is taken to have complied with the trustee's duties under regulation 3.05.
If a policy committee dissolves itself and at least 5 members of the fund, being members in respect of whom the committee functioned, request the trustee of the fund in writing to form a replacement committee, the trustee must take all reasonable steps to do so.
The trustee of a public offer entity may make a payment of commission or brokerage to a person in consideration of the person:
The trustee of a public offer entity must not make a payment of commission or brokerage to a person (the
provider
) for the provision of a financial service by the provider in respect of issuing an interest in the entity unless the provider is:
A reference in subregulation (3) to a solicitor or accountant includes a reference to a firm of solicitors or accountants, or to a partner in such a firm, as the case requires.
The trustee of an entity must keep an account of amounts of commission and brokerage paid by the entity.
This regulation applies in relation to a person who, immediately before this regulation commences, was entitled to a payment of commission or brokerage in the circumstances mentioned in paragraph 3.10(3)(a), (b), (d), (e) or (f) of the SIS Regulations.
Subregulation (2) ceases to apply in relation to the entitlement on the earlier of:
Subject to any condition imposed on an extended public offer entity licence under subsection 29EA(3) of the Act, the licence enables a trustee that holds a licence of that class to be a trustee of any registrable superannuation entity.
to be a trustee of a registrable superannuation entity or entities to which the trustee is appointed to act as trustee under section 134 of the Act by APRA.
APRA may approve the trustee carrying on a business other than the trustee business if APRA is satisfied that the carrying on of the other business would not prejudice the proper and efficient performance of the trustee's functions and duties.
3B.03(3)
The trustee must tell the Commissioner the date on which the information is to be operative for the entity.
3B.03(4)
However, the information must be operative for the entity on or before the date on which the entity first receives a contribution (other than a contribution received from an employer that is not covered by regulation 7.07E or a contribution received from a member), or a rollover or transfer of a member's withdrawal benefit.
History
Reg 3B.03(4) substituted by FRLI No F2018L01373, reg 4 and Sch 1 item 3, effective 30 November 2019. For transitional provision, see note under reg 3B.02. Reg 3B.03(4) formerly read:
3B.03(4)
However, the information must be operative for the entity on or before the later of:
(a)
1 July 2013; and
(b)
the date on which the entity first receives a contribution, or a rollover or a transfer of a member's withdrawal benefit.
3B.03(5)
The trustee must give the information mentioned in subregulation (1) to the Commissioner on or before 10 business days before the day on which the entity first receives a contribution, or a rollover or a transfer of a member's withdrawal benefit.
History
Reg 3B.03(5) substituted by FRLI No F2018L01373, reg 4 and Sch 1 item 4, effective 30 November 2019. For transitional provision, see note under reg 3B.02. Reg 3B.03(5) formerly read:
3B.03(5)
Subregulation (6) applies to the trustee of an entity if:
(a)
the entity is receiving contributions, or rollovers or transfers of members' withdrawal benefits, from an employer, RSA provider or other superannuation entity on the commencement of this Part; and
(b)
the trustee expects that the entity will continue to receive contributions, or rollovers or transfers of members' withdrawal benefits, on or after 1 July 2013.
3B.03(6)
(Repealed by FRLI No F2018L01373)
History
Reg 3B.03(6) repealed by FRLI No F2018L01373, reg 4 and Sch 1 item 4, effective 30 November 2019. For transitional provision, see note under reg 3B.02. Reg 3B.03(6) formerly read:
3B.03(6)
The trustee must give the information mentioned in subregulation (1) to the Commissioner on or before the later of:
(a)
20 business days after the commencement of this Part; and
(b)
1 April 2013.
3B.03(7)
(Repealed by FRLI No F2018L01373)
History
Reg 3B.03(7) repealed by FRLI No F2018L01373, reg 4 and Sch 1 item 4, effective 30 November 2019. For transitional provision, see note under reg 3B.02. Reg 3B.03(7) formerly read:
3B.03(7)
The trustee of an entity to which subregulation (6) does not apply must give the information mentioned in subregulation (1) to the Commissioner on or before the later of:
(a)
10 business days before the day on which the entity first receives a contribution, or a rollover or a transfer of a member's withdrawal benefit; and
(b)
1 April 2013.
3B.03(8)
If the trustee of an entity proposes to change any information given for the entity under this regulation, the trustee must give the changed information to the Commissioner no later than 10 business days before the new information is to be operative for the entity.
History
Reg 3B.02 inserted by SLI No 317 of 2012, reg 4 and Sch 1 item 1, effective 29 November 2012.
PART 4 - MANAGEMENT AND TRUSTEESHIP OF SUPERANNUATION ENTITIES
[
CCH Note:
Pt 4 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting reg 4.08A - see Modification Declaration No 10 under reg 4.08A.]
Division 4.1 - Prescribed matters
REGULATION 4.01A
COVENANTS IN GOVERNING RULES OF SUPERANNUATION ENTITY - TRUSTEE'S DETERMINATION AND BENCHMARKS
MySuper products
4.01A(1)
For the purposes of subparagraph 52(9)(a)(i) of the Act, subregulation (2) specifies a benchmark in relation to a MySuper product.
4.01A(2)
The benchmark is the requirement in subsection 60D(1) of the Act having been met for the product in relation to the most recently ended financial year.
Choice products
4.01A(3)
For the purposes of subparagraph 52(9)(a)(ii) of the Act, subregulation (4) specifies a benchmark in relation to a choice product that is a Part 6A product.
4.01A(4)
The benchmark is the requirement in subsection 60D(1) of the Act having been met for the product in relation to the most recently ended financial year.
History
Reg 4.01A inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 3, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 4.01
4.01
COVENANTS IN GOVERNING RULES OF SUPERANNUATION ENTITY - PRESCRIBED INFORMATION AND DOCUMENTS
For paragraphs 52(2)(j) and 52B(2)(h) of the Act, the information and documents that are available to a concerned person under section 1017C of the Corporations Act 2001 are prescribed.
History
Reg 4.01 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 94, effective 1 July 2013. Reg 4.01 formerly read:
REGULATION 4.01 COVENANTS IN GOVERNING RULES OF A SUPERANNUATION ENTITY - PRESCRIBED INFORMATION AND DOCUMENTS
4.01
For the purposes of paragraph 52(2)(h) of the Act, the information and documents that are available to a concerned person under section 1017C of the Corporations Act 2001 are prescribed.
Reg 4.01 amended by SR No 21 of 2002, reg 3 and Sch 1 item 32, effective 11 March 2002 by substituting "Corporations Act 2001" for "Division 2.6".
REGULATION 4.02
COVENANTS IN GOVERNING RULES OF SELF MANAGED SUPERANNUATION FUND - BENEFICIARY INVESTMENT CHOICE
4.02(1)
This regulation is made for paragraph 52B(4)(b) of the Act.
4.02(2)
The circumstances in which a direction, other than a subsequent direction, may be made by a specified beneficiary or class of beneficiaries are the following:
(a)
the trustee:
(i)
gives the beneficiary or class a choice of 2 or more strategies for investing the interest of the beneficiary or class in the fund; and
(ii)
informs the beneficiary or class that the beneficiary or class may choose a strategy or combination of strategies;
(b)
the beneficiary or class is fully informed of:
(i)
the investment objectives of each strategy; and
(ii)
anything else the trustee reasonably believes a person would need to know to understand the effect of, and any risk involved in, each strategy;
(c)
the direction specifies:
(i)
which strategy or combination of strategies the beneficiary or class has chosen; and
(ii)
where applicable, matters related to the choice mentioned in subparagraph (i);
Example
The chosen strategy could be one that allows the beneficiary a choice in exposure to certain classes of asset. The beneficiary may choose 60% in fixed interest loans and 40% in shares. The choice of the level of exposure to the class of assets would be information for subparagraph (ii).
(d)
the beneficiary or class is fully informed of the range of directions that can be given and the circumstances in which they can be changed.
4.02(3)
A subsequent direction may be given in the following circumstances:
(a)
the beneficiary or class is given all the information the trustee believes a person would need to understand the effect of, and any risk involved in, giving the subsequent direction;
(b)
the subsequent direction relates to the strategy for investing the beneficiary or class's interest in the fund.
History
Reg 4.02 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 94, effective 1 July 2013. Reg 4.02 formerly read:
REGULATION 4.02 COVENANTS IN GOVERNING RULES OF A SUPERANNUATION ENTITY - BENEFICIARY INVESTMENT CHOICE
4.02(1)
For the purposes of paragraph 52(4)(b) of the Act, the circumstances in which a direction of the kind referred to in that paragraph (other than a subsequent direction of that kind) may be given are:
(a)
in the case of a direction by a specified beneficiary who is, or a class of specified beneficiaries each of whom is, a standard employer-sponsored member - the circumstances stated in subregulations (2) and (3); and
(b)
in any other case - the circumstances stated in subregulation (2).
4.02(2)
For the purposes of paragraphs (1)(a) and (b), the following circumstances are stated, namely that:
(a)
the trustee gives to the beneficiary, or to each member of the class of beneficiaries, a choice of 2 or more investment strategies from which the beneficiary, or class of beneficiaries, may choose a strategy or combination of strategies; and
(b)
the beneficiary, or each member of the class of beneficiaries, is given:
(i)
the investment objectives of each of the strategies mentioned in paragraph (a); and
(ii)
all information the trustee reasonably believes a person would reasonably need for the purpose of understanding the effect of, and any risk involved in, each of those strategies; and
(c)
the beneficiary, or each member of the class of beneficiaries, is fully informed of the range of directions that can be given and the circumstances in which they can be changed; and
(d)
the direction is given after compliance with the above paragraphs, and the direction specifies:
(i)
which of the strategies or which combination of strategies referred to in paragraph (a) is to be followed in relation to investments of the beneficiary's, or class of beneficiaries', interest in the fund; and
(ii)
where applicable, matters related to the choice referred to in that paragraph.
Example: A strategy could allow the beneficiary, or class of beneficiaries, a choice in exposure to certain classes of asset. The beneficiary may choose 60% in fixed interest loans and 40% in shares and the choice of the level of exposure to the class of assets would be a "matter" mentioned in subparagraph (ii).
Note Information regarding investment strategies is generally set out in a Product Disclosure Statement. However, a shorter Product Disclosure Statement may, in accordance with the modifications of the Corporations Act 2001 set out in Part 5B of Schedule 10A to the Corporations Regulations 2001:
(a) provide some of the information by applying, adopting or incorporating a matter in writing; or
(b) refer to information that is set out in another document.
History
Reg 4.02(2) amended by SLI No 146 of 2011, reg 3 and Sch 1 item 2, by inserting the note at the end, effective 9 August 2011.
4.02(3)
For the purposes of paragraph (1)(a), the following circumstance is stated, namely that the trustee clearly identifies to the beneficiary, or to each member of the class of beneficiaries, when giving to him, her or them a choice of 2 or more investment strategies in accordance with paragraph (2)(a), the strategy the trustee will adopt if no direction is given.
4.02(4)
Subregulation (3) does not apply in relation to a beneficiary or a member of a class of beneficiaries if it is a condition of membership for the beneficiary to choose a strategy or combination of strategies.
4.02(5)
For the purposes of paragraph
52(4)(b) of the Act, the circumstances in which a direction of the kind referred to in that paragraph, if it is a subsequent direction of that kind, may be given are that:
(a)
the beneficiary, or each member of the class of beneficiaries, is given all information the trustee reasonably believes a person would reasonably need for the purpose of understanding the effect of, and any risk involved in, the subsequent direction; and
(b)
the subsequent direction is given after compliance with paragraph (a), and relates to the strategy to be followed in relation to the investment of the interest in the fund of the beneficiary or class of beneficiaries.
REGULATION 4.02A
TRUSTEE SUBJECT TO DIRECTION - REGISTRABLE SUPERANNUATION ENTITY OTHER THAN REGULATED SUPERANNUATION FUND WITH NO MORE THAN 6 MEMBERS
4.02A(1)
This regulation is made for subparagraph 58(2)(d)(ii) of the Act.
4.02A(2)
If a beneficiary is a standard employer-sponsored member, the circumstances in which a direction other than a subsequent direction may be given by the beneficiary to take up, dispose of or alter the amount invested in an investment option are:
(a)
the trustee:
(i)
gives the beneficiary a choice of 2 or more strategies for investing the interest of the beneficiary in the fund; and
(ii)
informs the beneficiary that the beneficiary may choose a strategy or combination of strategies;
(b)
the beneficiary is fully informed of:
(i)
the investment objectives of each strategy; and
(ii)
anything else the trustee reasonably believes a person would need to know to understand the effect of, and any risk involved in, each strategy;
(c)
the direction specifies: and
(i)
which strategy or combination of strategies the beneficiary has chosen;
(ii)
where applicable, matters related to the choice mentioned in subparagraph (i).
Example
The chosen strategy could be one that allows the beneficiary a choice in exposure to certain classes of asset. The beneficiary may choose 60% in fixed interest loans and 40% in shares. The choice of the level of exposure to the class of assets would be information for subparagraph (ii).
Note: Information regarding investment strategies is generally set out in a Product Disclosure Statement. However, a shorter Product Disclosure Statement may, in accordance with the modifications of the Corporations Act 2001 set out in Part 5B of Schedule 10A to the Corporations Regulations 2001 provide some of the information by applying, adopting or incorporating a matter in writing; or refer to information that is set out in another document.
(d)
the beneficiary is fully informed of the range of directions that can be given and the circumstances in which they can be changed;
(e)
the trustee, when presenting a choice of 2 or more investment strategies to the beneficiary, informs the beneficiary which strategy the trustee will adopt if no direction is given.
4.02A(3)
Disregard the circumstance in paragraph (2)(e) if it is a condition of membership that the beneficiary chooses a strategy or combination of strategies.
4.02A(4)
If a beneficiary is not a standard employer-sponsored member, the circumstances in which a direction other than a subsequent direction may be given by the beneficiary to take up, dispose of or alter the amount invested in an investment option are the circumstances in paragraphs (2)(a) to (d).
4.02A(5)
A subsequent direction may be given in the following circumstances:
(a)
the beneficiary is given all the information the trustee believes a person would need to understand the effect of, and any risk involved in, giving the subsequent direction;
(b)
the subsequent direction relates to the strategy for investing the beneficiary's interest in the fund.
History
Reg 4.02A inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 94, effective 1 July 2013.
REGULATION 4.02AA
OPERATING STANDARD - DIRECTION ON INVESTMENT OPTION TO TRUSTEE OF REGULATED SUPERANNUATION FUND WITH NO MORE THAN 6 MEMBERS
4.02AA(1)
This standard:
(a)
is made for subsection 31(1) of the Act; and
(b)
applies to a regulated superannuation fund (other than a self managed superannuation fund) with no more than 6 members.
History
Reg 4.02AA(1) amended by FRLI No F2021L00853, reg 4 and Sch 1 item 8, by substituting "no more than 6 members" for "fewer than 5 members" in para (b), effective 1 July 2021.
4.02AA(2)
A beneficiary of the fund who is a standard employer-sponsored member may give a direction other than a subsequent direction to take up, dispose of or alter the amount invested in an investment option only if the circumstances in subregulation (3) apply.
4.02AA(3)
For subregulation (2), the circumstances are the following:
(a)
the trustee:
(i)
gives the beneficiary a choice of 2 or more strategies for investing the interest of the beneficiary in the fund; and
(ii)
informs the beneficiary that the beneficiary may choose a strategy or combination of strategies;
(b)
the beneficiary is fully informed of:
(i)
the investment objectives of each strategy; and
(ii)
anything else the trustee reasonably believes a person would need to know to understand the effect of, and any risk involved in, each strategy;
(c)
the direction specifies:
(i)
which strategy or combination of strategies the beneficiary has chosen; and
(ii)
where applicable, matters related to the choice mentioned in subparagraph (i);
Example
The chosen strategy could be one that allows the beneficiary a choice in exposure to certain classes of asset. The beneficiary may choose 60% in fixed interest loans and 40% in shares. The choice of the level of exposure to the class of assets would be information for subparagraph (ii).
Note: Information regarding investment strategies is generally set out in a Product Disclosure Statement. However, a shorter Product Disclosure Statement may, in accordance with the modifications of the Corporations Act 2001 set out in Part 5B of Schedule 10A to the Corporations Regulations 2001 provide some of the information by applying, adopting or incorporating a matter in writing; or refer to information that is set out in another document.
(d)
the beneficiary is fully informed of the range of directions that can be given and the circumstances in which they can be changed;
(e)
the trustee, when presenting a choice of 2 or more investment strategies to the beneficiary, informs the beneficiary which strategy the trustee will adopt if no direction is given.
4.02AA(4)
Disregard the circumstance in paragraph (2)(e) if it is a condition of membership that the beneficiary chooses a strategy or combination of strategies.
4.02AA(5)
If a beneficiary is not a standard employer-sponsored member, the circumstances in which a direction other than a subsequent direction may be given by the beneficiary to take up, dispose of or alter the amount invested in an investment option are the circumstances in paragraphs (3)(a) to (d).
4.02AA(6)
A subsequent direction may be given in the following circumstances:
(a)
the beneficiary is given all the information the trustee believes a person would need to understand the effect of, and any risk involved in, giving the subsequent direction;
(b)
the subsequent direction relates to the strategy for investing the beneficiary's interest in the fund.
History
Reg 4.02AA inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 94, effective 1 July 2013.
REGULATION 4.03
TRUSTEE OF EMPLOYER-SPONSORED FUND - PRESCRIBED DIRECTION BY EMPLOYER-SPONSOR OR ASSOCIATE OF EMPLOYER-SPONSOR
4.03(1)
For the purposes of paragraph 58(2)(e) of the Act, the circumstances in which the governing rules of a superannuation entity (other than a superannuation fund with no more than 6 members) may permit an employer-sponsor or an associate of an employer-sponsor to give a direction to the trustee of an employer-sponsored fund are:
(a)
where, after the implementation of the direction:
(i)
the fund (if a defined benefit fund) would not become technically insolvent within the meaning of subregulation 9.06(3); or
(ii)
the fund (if an accumulation fund) would not become technically insolvent within the meaning of subregulation 9.35(3); and
(b)
where the direction would not require the trustee to contravene the Act (other than section 55) or these regulations; and
(c)
where the direction qualifies under subregulation (2).
History
Reg 4.03(1) amended by FRLI No F2021L00853, reg 4 and Sch 1 item 9, by substituting "no more than 6 members" for "fewer than 5 members", effective 1 July 2021.
Reg 4.03(1) amended by SR No 239 of 1999 and SR No 189 of 1994.
4.03(2)
A direction qualifies if:
(a)
the contributions of the employer-sponsor to the fund include contributions that are not mandated employer contributions (within the meaning of Part 5) and the direction relates solely to either or both of the following:
(i)
those non-mandated employer contributions; or
(ii)
benefits related to those non-mandated employer contributions; or
(b)
whether or not paragraph (a) applies - the direction relates solely to one or more of the following:
(i)
the admission of new members to the fund; or
(ii)
the category of members into which a new member or existing member is to be placed; or
(iii)
allowing a person to become an employer-sponsor of the fund; or
(iv)
the termination of the fund; or
(v)
the appointment of a trustee to an entity that does not have a trustee.
REGULATION 4.04
GOVERNING RULES OF A SUPERANNUATION ENTITY - PRESCRIBED EXERCISE OF DISCRETION BY NON-TRUSTEE
4.04(1)
[Circumstances for exercise of discretion]
For the purposes of subparagraph 59(1)(b)(iii) of the Act, the circumstances in which a discretion under the governing rules of a superannuation entity other than a self managed superannuation fund may be exercised by a person other than the trustee are:
(a)
where, after the exercise of the discretion:
(i)
the fund (if a defined benefit fund) would not become technically insolvent within the meaning of subregulation 9.06(3); or
(ii)
the fund (if an accumulation fund) would not become technically insolvent within the meaning of subregulation 9.35(3); and
(b)
where the discretion could have been exercised by the trustee without contravening the Act (other than section 55) or these regulations; and
(c)
where the discretion qualifies under subregulation (2).
History
Reg 4.04(1) amended by SR No 239 of 1999 and SR No 189 of 1994.
4.04(2)
[Discretion qualifies]
A discretion qualifies if:
(a)
the contributions of the employer-sponsor to the fund include contributions that are not mandated employer contributions (within the meaning of Part 5) and the discretion relates solely to either or both of the following:
(i)
those non-mandated employer contributions; or
(ii)
benefits related to those non-mandated employer contributions; or
(b)
whether or not paragraph (a) applies - the discretion relates solely to one or more of the following:
(i)
the admission of new members to the fund; or
(ii)
the category of members into which a new member or existing member is to be placed; or
(iii)
allowing a person to become an employer-sponsor of the fund; or
(iv)
the termination of the fund; or
(v)
the appointment of a trustee to an entity that does not have a trustee.
REGULATION 4.05
GOVERNING RULES OF A SUPERANNUATION ENTITY - PRESCRIBED CIRCUMSTANCES OF AMENDMENT
4.05(1)
[Circumstances in which rules may be amended]
For the purposes of subparagraph 60(1)(b)(iii) of the Act, the circumstances in which the governing rules of a superannuation entity other than a self managed superannuation fund may be amended are:
(a)
where, after the making of the amendment:
(i)
the fund (if a defined benefit fund) would not become technically insolvent within the meaning of subregulation 9.06(3); or
(ii)
the fund (if an accumulation fund) would not become technically insolvent within the meaning of subregulation 9.35(3); and
(b)
where the amendment could have been made by the trustee without contravening the Act (other than section 55) or these regulations; and
(c)
where the amendment qualifies under subregulation (2).
History
Reg 4.05(1) amended by SR No 239 of 1999 and SR No 189 of 1994.
4.05(2)
[Amendments]
An amendment qualifies if:
(a)
the contributions of the employer-sponsor to the fund include contributions that are not mandated employer contributions (within the meaning of Part 5) and the amendment relates solely to either or both of the following:
(i)
those non-mandated employer contributions; or
(ii)
benefits related to those non-mandated employer contributions; or
(b)
whether or not paragraph (a) applies - the amendment relates solely to one or more of the following:
(i)
the admission of new members to the fund; or
(ii)
the category of members into which a new member or existing member is to be placed; or
(iii)
allowing a person to become an employer-sponsor of the fund; or
(iv)
the termination of the fund; or
(v)
the appointment of a trustee to an entity that does not have a trustee.
REGULATION 4.06
REMOVAL OF MEMBER REPRESENTATIVES - PRESCRIBED CIRCUMSTANCES
4.06(1)
[Circumstances in which representative can be removed]
For the purposes of sub-subparagraph 107(2)(a)(ii)(G) of the Act, the circumstances stated in subregulation (2) are prescribed as circumstances in which member representatives referred to in subparagraph 107(2)(a)(ii) of the Act can be removed other than by the same procedure by which they were appointed.
4.06(2)
[Prescribed circumstances]
The circumstances referred to in subregulation (1) are:
(a)
if the member representative resigns from the position of trustee, director of the trustee or representative on a policy committee; or
(b)
if the member representative's tenure of that position expires; or
(c)
if the member representative ceases to be a member of the fund; or
(d)
if the member representative ceases to satisfy a condition that the member representative was required to satisfy to be eligible for appointment.
REGULATION 4.07
REMOVAL OF INDEPENDENT TRUSTEE OR INDEPENDENT MEMBER - PRESCRIBED CIRCUMSTANCES
4.07(1)
[Circumstances in which office-holder can be removed]
For the purposes of subparagraph 108(2)(a)(v) of the Act, the circumstances stated in subregulation (2) are prescribed as circumstances in which an additional independent trustee or additional independent director (the
office-holder
) referred to in paragraph 108(2)(a) of the Act can be removed other than by the same procedure by which they were appointed.
4.07(2)
[Prescribed circumstances]
The circumstances referred to in subregulation (1) are:
(a)
if the office-holder resigns from office; or
(b)
if the office-holder's tenure of office expires; or
(c)
if the office-holder ceases to be:
(i)
in the case of an additional independent trustee - an independent trustee; or
(ii)
in the case of an additional independent director - an independent director; or
(d)
if the office-holder ceases to satisfy a condition that the office-holder was required to satisfy to be eligible for appointment.
(Repealed) Division 4.1A - Content of risk management strategies and risk management plans
History
Div 4.1A repealed by SLI No 155 of 2013, reg 4 and Sch 1 item 95, effective 1 July 2013.
Div 4.1A inserted by SR No 113 of 2004, reg 3 and Sch 1 item 4, effective 1 July 2004.
4.07A
(Repealed) REGULATION 4.07A RISK MANAGEMENT STRATEGIES
(Repealed by SLI No 155 of 2013)
History
Reg 4.07A repealed by SLI No 155 of 2013, reg 4 and Sch 1 item 95, effective 1 July 2013. Reg 4.07A formerly read:
REGULATION 4.07A RISK MANAGEMENT STRATEGIES
4.07A(1)
In this regulation:
material risk
means a risk to a body corporate or group of individual trustees mentioned in subsection 29H(1) of the Act that has the potential, if realised, to:
(a)
adversely affect the interests of members or beneficiaries of the registrable superannuation entity for which the body or group is the RSE licensee; or
(b)
have a significant impact on the business operations, reputation, rate of return, profitability or net assets of the body or group.
4.07A(2)
For paragraph 29H(2)(c) of the Act, the following matters are prescribed:
(a)
any material risk (a
relevant material risk
) that is relevant to the body or group;
(b)
an assessment of each relevant material risk, taking into account:
(i)
the likelihood of the risk being realised; and
(ii)
the consequences for the body or group if the risk is realised;
(c)
the way in which the body or group proposes to treat each relevant material risk, including:
(i)
the proposed risk response strategy or strategies for the risk; and
(ii)
the measures and procedures that the body or group proposes to apply to address the risk;
(d)
an assessment of the residual risk for each relevant material risk, having regard to:
(i)
the assessment of the relevant material risk under paragraph (b); and
(ii)
the likely effect of the proposed treatment of the relevant material risk under paragraph (c);
(e)
the proposed arrangements for internal oversight, implementation and reporting in relation to the management of the relevant material risks by the body or group.
Note: An RSE licence will not be granted unless APRA is satisfied that the risk management strategy for the body corporate or group of individual trustees meets the requirements of section 29H of the Act: see paragraph 29D(1)(e) of the Act.
History
Reg 4.07A inserted by SR No 113 of 2004, reg 3 and Sch 1 item 4, effective 1 July 2004.
4.07B
(Repealed) REGULATION 4.07B RISK MANAGEMENT PLANS
(Repealed by SLI No 155 of 2013)
History
Reg 4.07B repealed by SLI No 155 of 2013, reg 4 and Sch 1 item 95, effective 1 July 2013. Reg 4.07B formerly read:
REGULATION 4.07B RISK MANAGEMENT PLANS
4.07B(1)
In this regulation:
material risk
means a risk to a registrable superannuation entity that has the potential, if realised, to:
(a)
adversely affect the interests of members or beneficiaries of the entity; or
(b)
have a significant impact on the business operations, reputation, rate of return, profitability or net assets of the entity.
4.07B(2)
For paragraph
29P(2)(c) of the Act, the following matters are prescribed:
(a)
any material risk (a
relevant material risk
) that is relevant to the registrable superannuation entity;
(b)
an assessment of each relevant material risk, taking into account:
(i)
the likelihood of the risk being realised; and
(ii)
the consequences for the entity if the risk is realised;
(c)
the way in which the RSE licensee proposes to treat each relevant material risk, including:
(i)
the proposed risk response strategy or strategies for the risk; and
(ii)
the measures and procedures that the RSE licensee proposes to apply to address the risk;
(d)
an assessment of the residual risk for each relevant material risk, having regard to:
(i)
the assessment of the relevant material risk under paragraph (b); and
(ii)
the likely effect of the proposed treatment of the relevant material risk under paragraph (c);
(e)
the proposed arrangements for internal oversight, implementation and reporting in relation to the management of the relevant material risks by the RSE licensee.
Note: A registrable superannuation entity will not be registered unless APRA is satisfied that the risk management plan for the entity meets the requirements of section 29P of the Act: see paragraph 29M(1)(d) of the Act.
History
Reg 4.07B inserted by SR No 113 of 2004, reg 3 and Sch 1 item 4, effective 1 July 2004.
Division 4.2 - Operating standards
REGULATION 4.07C
4.07C
DEFINITIONS
In this Division:
anti-detriment payment
(Repealed by FRLI No F2017L00321)
History
Definition of "anti-detriment payment" repealed by FRLI No F2017L00321, reg 4 and Sch 7 item 4, applicable in relation to a superannuation benefit that is:
(a) paid because of the death of a person that occurred on or after 1 July 2017; or
(b) paid on or after 1 July 2019.
Note:
For paragraph (b), it doesn't matter when the person, in relation to whom the benefit is payable, died.
The definition formerly read:
anti-detriment payment
means a tax saving amount for paragraph 295-485(1)(b) of the Income Tax Assessment Act 1997.
insured benefit
, for a member, means a right for the member's benefits to be increased on the realisation of a risk.
History
Definition of "insured benefit" amended by FRLI No F2017L00321, reg 4 and Sch 7 item 5, by omitting ", other than an anti-detriment payment," after "means a right", applicable in relation to a superannuation benefit that is:
(a) paid because of the death of a person that occurred on or after 1 July 2017; or
(b) paid on or after 1 July 2019.
Note:
For paragraph (b), it doesn't matter when the person, in relation to whom the benefit is payable, died.
History
Reg 4.07C inserted by SLI No 26 of 2013, reg 4 and Sch 3 item 2, effective 1 July 2013.
REGULATION 4.07D
OPERATING STANDARD - PERMITTED TYPES OF INSURANCE
4.07D(1)
This regulation is made for subsection 31(1) of the Act.
4.07D(2)
A trustee of a regulated superannuation fund must not provide an insured benefit in relation to a member of the fund unless the insured event is consistent with a condition of release specified in item 102, 102A, 103 or 109 of Schedule 1.
4.07D(3)
However, subregulation (2) does not apply to:
(a)
the continued provision of benefits to members who joined a fund before 1 July 2014; or
(b)
the provision of benefits under an approval granted before 1 July 2014 under subparagraph 62(1)(b)(v) of the Act.
4.07D(4)
If a trustee is unable to amend the governing rules of a fund, to make the governing rules comply with subregulation (2):
(a)
the rules that do not comply with subregulation (2) are taken to have been omitted from the governing rules; and
(b)
the rules omitted under paragraph (a) are taken to have been replaced by rules that allow the provision of benefits that are permitted under subregulation (2).
4.07D(5)
This regulation does not apply until 1 July 2014.
History
Reg 4.07D inserted by SLI No 26 of 2013, reg 4 and Sch 3 item 2, effective 1 July 2013.
REGULATION 4.07E
OPERATING STANDARD - SELF-INSURANCE
4.07E(1)
This regulation is made for subsection 31(1) of the Act.
Note:
See also paragraph 31(2)(eb) of the Act.
4.07E(2)
If, on 1 July 2013, a regulated superannuation fund does not self-insure, in relation to a particular risk, a trustee of the fund may, on and after 1 July 2013, provide an insured benefit, in relation to that risk, to members of the fund only if the provision of the benefit is fully supported by an insurance policy provided by an insurer.
4.07E(3)
Subregulation (2) does not apply, on or before 1 July 2016, to a member who is transferred from a fund that self-insured, in relation to the member and the risk, into:
(a)
a successor fund that, immediately before the transfer, did not self-insure in relation to the risk; or
(b)
under Part 33 of the Act - a fund that, immediately before the transfer, did not self-insure in relation to the risk.
4.07E(4)
If, on 1 July 2013, a regulated superannuation fund self-insures, in relation to a particular risk, a trustee of the fund may, on and after 1 July 2016, provide an insured benefit, in relation to that risk, to members of the fund only if the provision of the benefit is fully supported by an insurance policy provided by an insurer.
4.07E(5)
If the governing rules of the fund mentioned in subregulation (4) do not allow the trustee to obtain the insurance policy mentioned in that subregulation, the trustee must, before 1 July 2016, amend the rules of the fund to allow the trustee to do so.
4.07E(6)
If the trustee cannot amend the rules, the rules are taken to be amended to allow the trustee to obtain the insurance policy.
4.07E(7)
Subregulation (4) does not apply if the Commonwealth Government, or the government of a State or Territory:
(a)
provides an insured benefit to members of the fund; or
(b)
guarantees the provision of an insured benefit to members of the fund.
4.07E(8)
Subregulation (4) does not apply, in relation to defined benefit members of the fund, if:
(a)
on or before 1 July 2013, APRA has not imposed, under subsection 29EA(1) of the Act, a condition on the licence of the RSE licensee of the fund that prohibits self-insurance in relation to defined benefit members; and
(b)
on 1 July 2013, the fund self-insures in relation to the members.
4.07E(8A)
Subregulations (2) and (4) do not apply, in relation to defined benefit members of the fund, if:
(a)
on or after 1 July 2013, defined benefit members transferred to the fund from another fund (the
original fund
); and
(b)
the fund is a successor fund of the original fund in relation to the transferring defined benefit members; and
(c)
immediately before the transfer, the original fund self-insured in relation to the transferring defined benefit members and the risk; and
(d)
the original fund complied with paragraphs (8)(a) and (b) where the transferring defined benefit members were members of the original fund on 1 July 2013.
History
Reg 4.07E(8A) inserted by Modification Declaration No 1 of 2014, registered on and effective from 10 April 2014.
4.07E(8B)
Subregulation (8A) applies subject to any condition imposed by APRA under subsection 29EA(1) of the Act on the licence of the RSE licensee of the fund.
History
Reg 4.07E(8B) inserted by Modification Declaration No 1 of 2014, registered on and effective from 10 April 2014.
4.07E(9)
Despite subregulation (4), a beneficiary of the fund who is mentioned in column 2 of the table has the entitlement mentioned in column 3 of the table.
|
Entitlements of beneficiaries
|
|
Item
|
If one of the following applies to the beneficiary immediately before 1 July 2016 …
|
the beneficiary is entitled, on and after 1 July 2016, to …
|
| 1 |
receives an insured benefit |
continue to receive the insured benefit |
| 2 |
lodges a claim for an insured benefit |
(a) have the claim determined; and
(b) receive an insured benefit, if the trustee so determines |
| 3 |
is eligible to make a claim for an insured benefit |
(a) lodge a claim; and
(b) have the claim determined; and
(c) receive an insured benefit, if the trustee so determines |
4.07E(10)
In this regulation:
fund
includes a sub-fund.
History
Reg 4.07E inserted by SLI No 26 of 2013, reg 4 and Sch 3 item 2, effective 1 July 2013.
REGULATION 4.08
OPERATING STANDARD - VOTING RULE WHERE EQUAL REPRESENTATION APPLIES
4.08(1)
[Application of standard]
For the purposes of subsection 31(1) of the Act, the standard stated in subregulation (3) is applicable to the operation of standard employer-sponsored funds that must comply:
(a)
under subsection 91(4) or 93(4) of the Act - with the basic equal representation rules; or
(b)
under subsection 90(3) of the Act - with either:
(i)
the basic equal representation rules; or
(ii)
the alternative agreed representation rule set out in subsection 90(4) of the Act; or
(c)
under subsection 92(4) of the Act - with either:
(i)
the basic equal representation rules; or
(ii)
the alternative agreed representation rule set out in subsection 92(5) of the Act.
4.08(2)
[When standard not applicable]
Despite subregulation (1), the standard stated in subregulation (3) is not applicable:
(a)
to the operation of standard employer-sponsored funds that comply with the alternative agreed representation rule set out in subsection 90(4) or 92(5) of the Act; or
(b)
to a decision of a delegate of the individual trustees or of the board of directors of the corporate trustee of the fund if the delegation was approved by at least two-thirds of the total number of the trustees or directors.
History
Reg 4.08(2) substituted by SR No 83 of 1998.
4.08(3)
[Vote by two-thirds of trustees or directors]
A decision of:
(a)
the individual trustees of a fund; or
(b)
the board of directors of the corporate trustee of a fund;
must be taken not to have been made, or to be of no effect, if fewer than two-thirds of the total number of the trustees or directors, as the case requires, voted for it.
REGULATION 4.08A
OPERATING STANDARD - MEMBER REPRESENTATION FOR CERTAIN REGULATED SUPERANNUATION FUNDS WHERE A DECLARATION UNDER SUBSECTION 18(7) OF THE ACT APPLIES
4.08A(1)
For the purposes of subsection 31(1) of the Act, the standard stated in subregulation (2) applies to the operation of regulated superannuation funds.
4.08A(2)
A regulated superannuation fund:
(a)
that is not a standard employer-sponsored fund; and
(b)
that has more than 6 members; and
(c)
in relation to which a declaration under subsection 18(7) of the Act is in force;
must have in place an arrangement in relation to the management and control of the fund that:
(d)
has been agreed to by a majority of the members of the fund; and
(e)
is approved by APRA in writing.
Note: Subsection 18(7) of the Act allows for funds to be declared not to be public offer funds.
History
Reg 4.08A(2) amended by FRLI No F2021L00853, reg 4 and Sch 1 item 10, by substituting "more than 6" for "more than 4" in para (b), effective 1 July 2021.
4.08A(3)
An approval for paragraph (2)(e):
(a)
is subject to any conditions specified in the instrument of approval; and
(b)
may be revoked by APRA by written notice given to the holder of the approval.
4.08A(4)
APRA may vary the conditions of an approval for paragraph (2)(e) by written notice given to the holder of the approval.
4.08A(5)
An approval that:
(a)
was granted by the Commissioner or APRA under the regulation 4.08A that, under section 2 of Modification Declaration 10, had effect as if it had been inserted into these regulations; and
(b)
was in force immediately before 1 March 2001;
continues in force as if granted by APRA for this regulation after that commencement.
Note: Modification Declaration 10 was gazetted on 19 July 1995 under section 332 of the Act.
4.08A(6)
When deciding whether or not to approve an arrangement for paragraph (2)(e), APRA must have regard to any written guidelines determined by APRA under this subregulation.
4.08A(7)
This regulation does not apply to a fund if the fund has an acting trustee appointed under Part 17 of the Act.
History
Reg 4.08A inserted by SR No 37 of 2001, reg 3 Sch 1 item 1, effective 1 March 2001. Note: Modification Declaration 10 was revoked on 1 March 2001, gazetted on 7 March 2001.
REGULATION 4.09
OPERATING STANDARD - INVESTMENT STRATEGY
4.09(1)
[Application of regulation]
This regulation:
(a)
is made for subsection 31(1) of the Act; and
(b)
applies to a superannuation entity that is a self managed superannuation fund.
History
Reg 4.09(1) substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 96, effective 1 July 2013. Reg 4.09(1) formerly read:
4.09(1)
[Application of standard]
For the purposes of subsections 31(1), 32(1) and 33(1) of the Act, the standard stated in subregulation (2) is applicable to the operation of superannuation entities.
History
Reg 4.09(1) amended by SR No 384 of 1995.
4.09(2)
The trustee of the entity must formulate, review regularly and give effect to an investment strategy that has regard to the whole of the circumstances of the entity including, but not limited to, the following:
(a)
the risk involved in making, holding and realising, and the likely return from, the entity's investments, having regard to its objectives and expected cash flow requirements;
(b)
the composition of the entity's investments as a whole, including the extent to which they are diverse or involve exposure of the entity to risks from inadequate diversification;
(c)
the liquidity of the entity's investments, having regard to its expected cash flow requirements;
(d)
the ability of the entity to discharge its existing and prospective liabilities;
(e)
whether the trustees of the fund should hold a contract of insurance that provides insurance cover for one or more members of the fund.
History
Reg 4.09(2) amended by SLI No 155 of 2013, reg 4 and Sch 1 item 97, by omitting "for a self managed superannuation fund-", effective 1 July 2013.
Reg 4.09(2) amended by SLI No 183 of 2012, reg 3 and Sch 1 items 1-3, by substituting "The trustee of the entity must formulate, review regularly and give effect to an investment strategy that has regard to the whole of the circumstances of the entity including, but not limited to, the following:" for "The trustee of the entity must formulate and give effect to an investment strategy that has regard to all the circumstances of the entity, including in particular:", substituting "liabilities;" for "liabilities." in para (d) and inserting para (e), effective 7 August 2012.
4.09(3)
[Strategy deemed in accordance with requirements]
An investment strategy is taken to be in accordance with subregulation (2) even if it provides for a specified beneficiary or class of beneficiaries to give directions to the trustee where the directions:
(a)
relate to the strategy to be followed by the trustee in relation to the investment of a particular asset or assets of the entity; and
(b)
are given in the circumstances covered by regulation 4.02.
History
Reg 4.09(3) amended by SR No 189 of 1994.
REGULATION 4.09A
OPERATING STANDARD - MONEY AND OTHER ASSETS TO BE KEPT SEPARATE (SELF MANAGED SUPERANNUATION FUNDS)
4.09A(1)
For subsection 31(1) of the Act, the standard stated in subregulation (2) applies to the operation of regulated superannuation funds.
4.09A(2)
A trustee of a regulated superannuation fund that is a self managed superannuation fund must keep the money and other assets of the fund separate from any money and assets, respectively:
(a)
that are held by the trustee personally; or
(b)
that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the fund.
History
Reg 4.09A inserted by SLI No 183 of 2012, reg 3 and Sch 1 item 4, effective 7 August 2012.
REGULATION 4.10
4.10
OPERATING STANDARD - INVESTMENT BY NON-COMPLYING SUPERANNUATION FUNDS
For the purposes of subsection 31(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds that, if the Regulator gives a notice to the trustee of an entity stating that the entity is not a complying superannuation fund, the trustee must take all reasonable steps to immediately dispose of any units held by the trustee in a PST, unless the Regulator otherwise directs.
History
Reg 4.10 amended by SR No 239 of 1999 and SR No 193 of 1998.
REGULATION 4.10A
OPERATING STANDARD - OWNERSHIP OF UNITS IN A PST
4.10A(1)
[Application of standard]
For paragraph 33(2)(aa) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is a PST.
History
Reg 4.10A(1) substituted by SLI No 113 of 2004, reg 3 and Sch 2 item 4, effective 1 July 2006. Reg 4.10A(1), including the note, formerly read:
4.10A(1)
For paragraph 33(2)(aa) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is a PST:
(a)
that came into existence on or after the start of the licensing transition period; and
(b)
for which there is an RSE licensee.
Note:
Licensing transition period
is defined in subsection 10(1) of the Act.
4.10A(2)
[Acquisition of units]
A trustee of the registrable superannuation entity must not offer ownership of units in the registrable superannuation entity unless the registrable superannuation entity is registered under Part 2B of the Act.
History
Reg 4.10A inserted by SR No 113 of 2004, reg 3 and Sch 1 item 5, effective 1 July 2004.
REGULATION 4.11
4.11
OPERATING STANDARD - INVESTMENT BY NON-COMPLYING APPROVED DEPOSIT FUNDS
For the purposes of subsection 32(1) of the Act, it is a standard applicable to the operation of approved deposit funds that, if APRA gives a notice to the trustee of an entity stating that the entity is not a complying approved deposit fund, the trustee must take all reasonable steps to immediately dispose of any units held by the trustee in a PST, unless APRA otherwise directs.
History
Reg 4.11 amended by SR No 193 of 1998.
REGULATION 4.11A
OPERATING STANDARD - ACCEPTANCE OF DEPOSITS BY AN APPROVED DEPOSIT FUND
4.11A(1)
[Application of standard]
For paragraph 32(2)(aa) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is an approved deposit fund.
History
Reg 4.11A(1) substituted by SLI No 113 of 2004, reg 3 and Sch 2 item 5, effective 1 July 2006. Reg 4.11A(1), including the note, formerly read:
4.11A(1)
For paragraph 32(2)(aa) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is an approved deposit fund:
(a)
that came into existence on or after the start of the licensing transition period; and
(b)
for which there is an RSE licensee.
Note:
Licensing transition period
is defined in subsection 10(1) of the Act.
4.11A(2)
[Acquisition of units]
A trustee of the registrable superannuation entity must not accept deposits unless the registrable superannuation entity is registered under Part 2B of the Act.
History
Reg 4.11A inserted by SR No 113 of 2004, reg 3 and Sch 1 item 6, effective 1 July 2004.
REGULATION 4.12
OPERATING STANDARD - ACCEPTANCE BY REGULATED SUPERANNUATION AND APPROVED DEPOSIT FUNDS OF ROLLOVERS AND TRANSFERS
4.12(1)
[Application of standard]
For the purposes of 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 (
the receiving trustee
) must not accept the rollover or transfer of a benefit from another regulated superannuation fund or approved deposit fund, or from an EPSSS or RSA, (
the transferring entity
) if:
(a)
the receiving trustee has reasonable grounds to believe that the benefit being rolled over or transferred is being rolled over or transferred on the basis of a belief held by the trustee or RSA provider of the transferring entity (as the case requires) that the receiving trustee has received the member's or RSA holder's consent to the rollover or transfer; and
(b)
the receiving trustee has not received that consent.
History
Reg 4.12(1) amended by SR No 14 of 1999 and SR No 117 of 1997.
4.12(2)
["consent"]
In this regulation:
consent
means:
(a)
written consent; or
(b)
any other form of consent determined by the Regulator as sufficient in the circumstances.
History
Definition of "consent" amended by SR No 239 of 1999 and SR No 193 of 1998.
History
Reg 4.12(2) inserted by SR No 117 of 1997.
Reg 4.12 inserted by SR No 142 of 1995.
REGULATION 4.13
OPERATING STANDARD - LENDING TO MEMBERS OF AN APPROVED DEPOSIT FUND
4.13(1)
[Applicable standards]
For the purposes of subsection 32(1) of the Act, the standards stated in subregulations (2) and (3) are standards applicable to the operation of approved deposit funds.
4.13(2)
[Prohibited acts]
The trustee of a fund must not:
(a)
lend money of the fund to:
(i)
a member of the fund; or
(ii)
a relative of a member of the fund; or
(b)
give any other financial assistance using the resources of the fund to:
(i)
a member of the fund; or
(ii)
a relative of a member of the fund.
4.13(3)
[Monitor actions of investment manager]
The trustee of a fund must take all reasonable steps to ensure that the investment manager does not:
(a)
lend money of the fund to:
(i)
a member of the fund; or
(ii)
a relative of a member of the fund; or
(b)
give any other financial assistance using the resources of the fund to:
(i)
a member of the fund; or
(ii)
a relative of a member of the fund.
4.13(4)
[Definition]
In this regulation:
member
, of a fund, includes the non-member spouse in relation to a superannuation interest in the fund that is subject to a payment split.
History
Definition of ``member'' inserted by SR No 353 of 2001, reg 3 and Sch 1 item 32, effective 28 December 2002.
relative
has the same meaning as in the Income Tax Assessment Act.
History
Reg 4.13 inserted by SR No158 of 1995.
4.14
(Repealed) REGULATION 4.14 OPERATING STANDARD - FITNESS AND PROPRIETY OF RSE LICENSEE
(Repealed by SLI No 155 of 2013)
History
Reg 4.14 repealed by SLI No 155 of 2013, reg 4 and Sch 1 item 98, effective 1 July 2013. Reg 4.14 formerly read:
REGULATION 4.14 OPERATING STANDARD - FITNESS AND PROPRIETY OF RSE LICENSEE
4.14(1)
In this regulation:
disqualified person
means a disqualified person for Part 15 of the Act.
fit and proper standard
means the standard mentioned in subregulation (3).
4.14(2)
For paragraphs 31(2)(ma), 32(2)(fa) and 33(2)(ba) of the Act, the standard stated in this regulation is applicable to an RSE licensee.
Note: An RSE licence will not be granted unless APRA is satisfied under paragraph 29D(1)(d) of the Act that the standard stated in this regulation is met.
4.14(3)
Subject to subregulations (5) and (6), an RSE licensee meets the fit and proper standard if the RSE licensee possesses relevant attributes that enable the RSE licensee to properly discharge the duties and responsibilities of an RSE licensee in a prudent manner.
4.14(4)
The attributes include, but are not limited to:
(a)
character, competence, diligence, experience, honesty, integrity and judgement; and
(b)
educational or technical qualifications, knowledge and skills relevant to the duties and responsibilities of an RSE licensee.
4.14(5)
An RSE licensee that is a body corporate does not meet the fit and proper standard if:
(a)
the body corporate is a disqualified person; or
(b)
a director of the body corporate is a disqualified person, and the body corporate does not, within 14 days after the body corporate becomes aware that the director is a disqualified person:
(i)
notify APRA of that fact; and
(ii)
remove the director.
4.14(6)
An RSE licensee that is a group of individual trustees does not meet the fit and proper standard if:
(a)
an individual trustee who is a member of the group of individual trustees (the
member
) is a disqualified person; and
(b)
the group of individual trustees does not, within 14 days after the group becomes aware that the member is a disqualified person:
(i)
notify APRA of that fact; and
(ii)
remove the member from the group.
4.14(7)
An RSE licensee must meet the fit and proper standard for all the period during which the RSE licence continues in force.
History
Reg 4.14 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 7, effective 1 July 2004.
4.15
(Repealed) REGULATION 4.15 OPERATINGSTANDARD - ADEQUACY OF RESOURCES OF, OR AVAILABLE TO, TRUSTEES OF REGISTRABLE SUPERANNUATION ENTITIES (RSE LICENSEES)
(Repealed by SLI No 155 of 2013)
History
Reg 4.15 repealed by SLI No 155 of 2013, reg 4 and Sch 1 item 98, effective 1 July 2013. Reg 4.15 formerly read:
REGULATION 4.15 OPERATING STANDARD - ADEQUACY OF RESOURCES OF, OR AVAILABLE TO, TRUSTEES OF REGISTRABLE SUPERANNUATION ENTITIES (RSE LICENSEES)
4.15(1)
In this regulation:
adequate financial resources
includes:
(a)
adequate resources to ensure the ongoing solvency of the RSE licensee; and
(b)
adequate liquidity to support the business operations of the RSE licensee.
adequate human resources
includes adequate levels of personnel with the necessary knowledge, skills and expertise to enable the RSE licensee to effectively carry out its operations.
adequate technical resources
includes:
(a)
adequate technical systems, including adequate hardware and software; and
(b)
adequate systems and resources to ensure protection, security and privacy of confidential, personal and sensitive material; and
(c)
adequate technical resources to handle transaction processing and other operations; and
(d)
adequate technical resources to handle any significant changes or increases in business size or capacity that are planned or forecast or that are likely to occur; and
(e)
adequate disaster recovery and business continuity plans; and
(f)
adequate records maintenance systems.
4.15(2)
For paragraphs
31(2)(sb),
32(2)(lb) and
33(2)(jb) of the Act, the standard stated in this regulation is applicable to trustees of registrable superannuation entities as follows:
(a)
if the trustee is a body corporate that holds an RSE licence - the body corporate;
(b)
if the trustee is a member of a group of individual trustees that holds an RSE licence - the group.
Note: An RSE licence will not be granted unless APRA has no reason to believe that the RSE licensee law would not be complied with. The RSE licensee law includes this regulation. See subsection 10(1) and paragraph 29D(1)(a) of the Act.
4.15(3)
The body or group must, for all of the period during which the RSE licence continues in force, have adequate human, technical and financial resources available to it to enable it to undertake its activities as an RSE licensee.
4.15(4)
The body or group has adequate human, technical or financial resources available to it if:
(a)
it has adequate resources of that kind in its own right; or
(b)
it has available to it adequate resources of that kind under an enforceable agreement or undertaking.
History
Reg 4.15 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 7, effective 1 July 2004.
4.16
(Repealed) REGULATION 4.16 OPERATING STANDARD - OUTSOURCING ARRANGEMENTS OF RSE LICENSEES
(Repealed by SLI No 155 of 2013)
History
Reg 4.16 repealed by SLI No 155 of 2013, reg 4 and Sch 1 item 98, effective 1 July 2013. Reg 4.16 formerly read:
REGULATION 4.16 OPERATING STANDARD - OUTSOURCING ARRANGEMENTS OF RSE LICENSEES
4.16(1)
In this regulation:
material business activity
means a business activity of the RSE licensee of a registrable superannuation entity, a disruption to which, or the poor performance of which, has the potential to:
(a)
affect the interests of members or beneficiaries of the entity; or
(b)
have a significant impact on the business operations, reputation, rate of return, profitability or net assets of:
(i)
the entity; or
(ii)
the RSE licensee of the entity.
material outsourcing agreement
means an agreement or arrangement:
(a)
under which a person other than the RSE licensee (a
service provider
) is to perform a material business activity; and
(b)
entered into with the service provider by:
(i)
if the RSE licensee is a body corporate - the body corporate; or
(ii)
if the RSE licensee is a group of individual trustees - the group as a whole, or any member of the group.
service provider
does not include:
(a)
if the RSE licensee is a body corporate - an employee of the body corporate acting in the capacity of an employee of the body corporate, or an officer of the body corporate acting in the capacity of an officer of the body corporate; or
(b)
if the RSE licensee is a group of individual trustees - an employee of the group, or an employee of any member of the group, acting in the capacity of an employee of the group, or in the capacity of an employee of a member of the group.
4.16(2)
For paragraphs
31(2)(sa),
32(2)(la) and
33(2)(ja) of the Act, the standard stated in this regulation is applicable to material outsourcing agreements.
Note: An RSE licence will not be granted unless APRA has no reason to believe that the RSE licensee law would not be complied with. The RSE licensee law includes this regulation. See subsection 10(1) and paragraph 29D(1)(a) of the Act.
4.16(3)
A material outsourcing agreement must comply with this regulation.
4.16(4)
A material outsourcing agreement must:
(a)
be in writing; and
(b)
state the commencement date of the agreement; and
(c)
contain default arrangements and termination provisions; and
(d)
provide for dispute resolution; and
(e)
contain liability and indemnity provisions; and
(f)
provide for confidentiality, privacy and security of information; and
(g)
contain a pricing, fee and payments structure in relation to the performance of the material business activity; and
(h)
contain audit, monitoring and assessment procedures in relation to the performance of the material business activity; and
(i)
provide for business continuity planning, including transfer protocols relating to the handover of functions from the service provider to either a successor service provider or the RSE licensee on the cessation of the material outsourcing agreement.
4.16(5)
A material outsourcing agreement must provide that:
(a)
the service provider must, on the written request of the RSE licensee or APRA, and within a time and at a place specified in the request that is reasonable in the circumstances, provide the RSE licensee or APRA, as requested, with any documents or information in the possession of the service provider relating to:
(i)
the material outsourcing agreement; or
(ii)
the material business activity performed under the agreement; and
(b)
the service provider must, on the written request of the RSE licensee or APRA, and at a time that is reasonable in the circumstances, allow the RSE licensee or APRA, as requested, to:
(i)
conduct on-site visits to the service provider's premises; and
(ii)
access any documents or information relating to the registrable superannuation entity held at those premises; and
(c)
the service provider must, on the written request of the RSE licensee or APRA, and within a time specified in the request that is reasonable in the circumstances, have an audit of its business activities under the material outsourcing agreement conducted by an independent auditor.
4.16(6)
A material outsourcing agreement must provide that any agreement or arrangement that a service provider enters into with another service provider for the performance of a material business activity under the material outsourcing agreement must comply with this subregulation and with subregulations (4) and (5), as if the agreement or arrangement were a material outsourcing agreement.
[
CCH Note: Modification declaration No 1 of 2007
(No 1 of 2007, registered on and effective from 29 June 2007).
Regulation 4.16 of the Regulations is modified by including, after subregulation 4.16(6):
(6A)
Subregulation (6) does not apply to a material outsourcing agreement between an RSE licensee of a registrable superannuation entity and a custodian, to the extent that:
(a)
the agreement or arrangement is between:
(i)
the custodian and a sub-custodian; or
(ii)
a sub-custodian and another sub-custodian; and
(b)
the material outsourcing agreement contains a provision that the custodian accepts responsibility for any liability arising from the failure of any sub-custodian to exercise reasonable care in the custody of the assets of the registrable superannuation entity.
(6B)
For the purposes of subregulation (6A), the liability of a custodian to an RSE licensee must not be dependent upon any recovery of losses by the custodian from any sub-custodian.
(6C)
For the purposes of subregulations (6A) and (6B), a sub-custodian means a person (other than an RSE licensee of a registrable superannuation entity or a securities depository) who, under a written contract with a custodian or another sub-custodian, performs any custodial function, in relation to the assets of a registrable superannuation entity, that the custodian is required to perform under a written contract with the RSE licensee of the registrable superannuation entity.
(6D)
For the purposes of subregulation (6C), securities depository means a book-entry or other settlement system or clearing house or agency through which a custodian or a sub-custodian may transfer, settle, clear, deposit or maintain securities, whether in certificated or uncertificated form, and includes any services provided by any network service provider or carriers or settlement banks used by a settlement system or clearing house or agency.
]
[
CCH Note: Modification declaration No 2 of 2006
(No 2 of 2006, registered on and effective from 30 June 2006).
Regulation 4.16 of the Regulations is modified by including, after subregulation 4.16(6):
(6A)
However, subregulation (6) does not apply to a material outsourcing agreement between an RSE licensee of a registrable superannuation entity and a custodian to the extent that:
(a)
the agreement or arrangement is between the custodian and another service provider that is a sub-custodian; and
(b)
the material outsourcing agreement contains a provision that the custodian accepts responsibility for liability arising from the failure ofthe sub-custodian to exercise reasonable care in the custody of the assets of the registrable superannuation entity.
(6B)
For the purposes of subregulation (6A), the liability of a custodian to an RSE licensee must not be dependent upon any recovery of losses by the custodian from the sub-custodian.
(6C)
For the purposes of subregulations (6A) and (6B), a sub-custodian means a person (other than an RSE licensee of a registrable superannuation entity or a securities depository) who, under a written contract with a custodian, holds assets of a registrable superannuation entity.
(6D)
For the purposes of subregulation (6C), securities depository means a book-entry or other settlement system or clearing house or agency through which a custodian or a sub-custodian may transfer, settle, clear, deposit or maintain securities, whether in certificated or uncertificated form, and includes any services provided by any network service provider or carriers or settlement banks used by a settlement system or clearing house or agency.
]
4.16(7)
An RSE licensee or a service provider must not charge APRA a fee for any of the following:
(a)
the provision of, or provision of access to, any documents or information under subregulation (5);
(b)
the provision of access to the service provider's premises under subregulation (5);
(c)
the conduct of an independent audit requested under subregulation (5).
4.16(8)
An RSE licensee must, if requested to do so by APRA, take all reasonable steps to enforce the material outsourcing agreement against a service provider in relation to:
(a)
any matter mentioned in paragraph (5)(a), (b) or (c); and
(b)
the matter mentioned in subregulation (6).
Note: Part 15 of the Act also contains standards for trustees, custodians and investment managers of superannuation entities.
History
Reg 4.16 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 7, effective 1 July 2004.
4.17
(Repealed) REGULATION 4.17 OUTSOURCING ARRANGEMENTS FOR LICENSING TRANSITION PERIOD
(Repealed by SLI No 155 of 2013)
History
Reg 4.17 repealed by SLI No 155 of 2013, reg 4 and Sch 1 item 98, effective 1 July 2013. Reg 4.17 formerly read:
REGULATION 4.17 OUTSOURCING ARRANGEMENTS FOR LICENSING TRANSITION PERIOD
4.17(1)
In this regulation:
arrangements
includes agreements or arrangements entered into at any time before the end of the licensing transition period.
business activity
means a business activity that would be a material business activity if the business activity was a business activity of an RSE licensee.
4.17(2)
Any arrangements that are in place for the outsourcing of a business activity that were entered into by a person who:
(a)
was a trustee of a registrable superannuation entity at the start of the licensing transition period; and
(b)
was not an RSE licensee, or was not a member of a group that was an RSE licensee, at the time the arrangements were entered into;
must, at or before the end of the licensing transition period:
(c)
comply with the standard stated in regulation 4.16; or
(d)
be terminated by the person.
Note:
Licensing transition period
is defined in subsection 10(1) of the Act.
History
Reg 4.17 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 7, effective 1 July 2004.
PART 4A - CHILD ACCOUNTS
History
Pt 4A repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004.
Pt 4A inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
Division 4A.1 - Preliminary
History
Div 4A.1 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004.
Div 4A.1 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
4A.01
(Repealed) REGULATION 4A.01 OPERATING STANDARDS
(Repealed by SR No 148 of 2004)
History
Reg 4A.01 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004. Reg 4A.01 formerly read:
REGULATION 4A.01 OPERATING STANDARDS
4A.01
For subsection 31(1) of the Act, a requirement set out in this Part is a standard applicable to the operation of a regulated superannuation fund.
Reg 4A.01 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
4A.02
(Repealed) REGULATION 4A.02 DEFINITION FOR PART 4A
(Repealed by SR No 148 of 2004)
History
Reg 4A.02 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004. Reg 4A.02 formerly read:
REGULATION 4A.02 DEFINITION FOR PART 4A
4A.02
In this Part:
child
means an individual who is under age 18.
Reg 4A.02 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
Division 4A.2 - Decisions about child accounts
History
Div 4A.2 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004.
Div 4A.2 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
4A.03
(Repealed) REGULATION 4A.03 DECISIONS ABOUT ACCOUNTS
(Repealed by SR No 148 of 2004)
History
Reg 4A.03 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004. Reg 4A.03 formerly read:
REGULATION 4A.03 DECISIONS ABOUT ACCOUNTS
4A.03(1)
If a child account is issued in respect of a child, decisions in relation to the account must be made by:
(a)
the legal personal representative of the child; or
(b)
if the child does not have a legal personal representative, a parent of the child or the child's guardian;
until the child turns 18.
4A.03(2)
However, a child may make decisions in relation to the account if:
(a)
the child is at least 16 years old; and
(b)
the fund has been notified that the child will be making decisions in relation to the account by:
(i)
the child's legal personal representative; or
(ii)
if the child does not have a legal personal representative, a parent of the child or the child's guardian.
Reg 4A.03 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
Division 4A.3 - Transitional arrangements
History
Div 4A.3 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004.
Div 4A.3 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
4A.04
(Repealed) REGULATION 4A.04 APPLICATION OF DIVISION 3
(Repealed by SR No 148 of 2004)
History
Reg 4A.04 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004. Reg 4A.04 formerly read:
REGULATION 4A.04 APPLICATION OF DIVISION 3
4A.04
This Division applies to a financial product that is a child account issued during the transition period for the product under section 1438 of the Corporations Act 2001.
Note: Section 1438 of the Corporations Act 2001 applies to all financial products issued by a person, other than financial products in a class of products that are first issued by the person after the FSR commencement. Subsection 1438(3) of the Corporations Act 2001 provides that the new product disclosure provisions do not apply in relation to a financial product to which that section applies during the period mentioned in that subsection (the
transition period
). The
new product disclosure provisions
are set out in subsection 1438(2).
Reg 4A.04 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
4A.05
(Repealed) REGULATION 4A.05 DEFINITIONS FOR DIVISION 3
(Repealed by SR No 148 of 2004)
History
Reg 4A.05 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004. Reg 4A.05 formerly read:
SECTION 4A.05
REGULATION 4A.05 DEFINITIONS FOR DIVISION 3
4A.05
In this Division:
eligible application
,
in relation to the issue of a child account, has the meaning given by regulation 4A.06.
FSR commencement
(Repealed by SR No 353 of 2002)
History
Definition of "FSR commencement" repealed by SR No 353 of 2002, reg 3 and Sch 1 item 27, effective 28 December 2002. The definition formerly read:
FSR commencement
has the same meaning as in section 1410 of the Corporations Act 2001.
Note: The
FSR commencement
is the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.
old Regulations
(Repealed by SR No 353 of 2002)
History
Definition of "old Regulations" repealed by SR No 353 of 2002, reg 3 and Sch 1 item 27, effective 28 December 2002. The definition formerly read:
old Regulations
means these Regulations as in force immediately before the FSR commencement.
old SIS Act
means the Act as in force immediately before the FSR commencement.
Reg 4A.05 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
4A.06
(Repealed) REGULATION 4A.06 ELIGIBLE APPLICATIONS
(Repealed by SR No 148 of 2004)
History
Reg 4A.06 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004. Reg 4A.06 formerly read:
REGULATION 4A.06 ELIGIBLE APPLICATIONS
4A.06(1)
In this Division, an
eligible application
, for a child account issued by a public offer superannuation fund, means an application that satisfies the following requirements:
(a)
the application complies with paragraphs 153(3)(a) and (b) of the old SIS Act;
(b)
when the person making the application received the form mentioned in paragraph 153(3)(b) of the old SIS Act, the person also received the additional information (if any) and the additional documents (if any) that would, under paragraph 153(3)(c) of the old SIS Act, have been received by the applicant under that paragraph before the FSR commencement;
(c)
the application includes evidence that:
(i)
the child's legal personal representative has consented to the opening of the child account; or
(ii)
if the child does not have a legal personal representative, a parent of the child, or the child's guardian, has consented to the opening of the child account;
(d)
the application includes the name and address of the legal personal representative, parent or guardian;
(e)
the application includes the name, address and date of birth of the child.
4A.06(2)
In this Division, an
eligible application
, for a child account issued by a regulated superannuation fund that is not a public offer superannuation fund, means an application that satisfies the following requirements:
(a)
the person making the application has been given the information that would, under regulations 2.15 and 2.16 of the old Regulations, have been given to a person who became a member of a fund of that type before the FSR commencement;
(b)
the application includes evidence that:
(i)
the child's legal personal representative has consented to the opening of the child account; or
(ii)
if the child does not have a legal personal representative, a parent of the child, or the child's guardian, has consented to the opening of the child account;
(c)
the application includes the name and address of the legal personal representative, parent or guardian;
(d)
the application includes the name, address and date of birth of the child.
Reg 4A.06 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
4A.07
(Repealed) REGULATION 4A.07 ISSUE OF CHILD ACCOUNTS
(Repealed by SR No 148 of 2004)
History
Reg 4A.07 repealed by SR No 148 of 2004, reg 3 and Sch 2 item 2, effective 1 September 2004. Reg 4A.07 formerly read:
REGULATION 4A.07 ISSUE OF CHILD ACCOUNTS
4A.07(1)
The trustee of a regulated superannuation fund that is a self managed superannuation fund must not issue a child account to a person unless:
(a)
the person making the application is the child's legal personal representative, a parent of the child or the child's guardian; or
(b)
the child account is issued as a result of an eligible application.
4A.07(2)
The trustee of a regulated superannuation fund (other than a self managed superannuation fund) must not issue a child account to a person unless the child account is issued as a result of an eligible application.
Reg 4A.07 inserted by SR No 150 of 2002, reg 3 and Sch 1 item 9, effective 1 July 2002.
PART 5 - BENEFIT PROTECTION STANDARDS
History
Pt 5 heading substituted by SR No 64 of 1995.
Division 5.1 - Preliminary
REGULATION 5.01
INTERPRETATION
5.01(1)
In this Part, unless the contrary intention appears:
accumulated deposit
, in relation to a member of an approved deposit fund as at a particular time, means the total of the following amounts:
(a)
amounts deposited in the fund for the member down to that time; and
(b)
investment earnings on those amounts down to that time;
less:
(c)
the costs applicable to those amounts down to that time.
administration costs
includes all fees and charges charged against a member's benefits (whether or not charged against the contributions by or in respect of the member), other than:
(a)
in the case of a member who was a member of the fund on 30 June 1995, the exit fee (if any) applicable to the member's benefits at that date; and
(b)
the cost (if any) of providing to the member:
(i)
an insured death benefit; or
(ii)
an insured permanent or temporary incapacity benefit; and
(c)
taxation costs.
Note: Examples of "taxation costs": contributions tax, superannuation contributions surcharge.
History
Definition of "administration costs" note substituted by SR No 309 of 1997.
Definition of "administration costs" inserted by SR No 159 of 1995.
cashed
means cashed in accordance with Division 6.3.
costs
, in relation to a member's benefits in a regulated superannuation fund or an approved deposit fund as at any time, means the total costs determined under regulation 5.02 in relation to those benefits and charged to those benefits in accordance with that regulation down to that time.
deferred annuity
means an annuity that is not payable on purchase, and the terms of which ensure:
(a)
that payment of benefits under the annuity:
(i)
is not commenced earlier than the time at which Part 6 permits or requires the benefits to be paid from an approved deposit fund; and
(ii)
is to commence as soon as practicable after the annuitant:
(A)
dies; or
(B)
if the annuitant dies before attaining the age of 65 - would have attained that age; and
(b)
that, except as permitted in relation to approved deposit funds by the Act or these Regulations, the provider of the annuity is not taken to recognise, or in any way encourage or sanction:
(i)
an assignment of an interest under the annuity; or
(ii)
the giving of a charge over, or in relation to, the annuity.
History
Definition of "deferred annuity" substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 25, effective 1 July 2007. The definition formerly read:
"deferred annuity"
means an annuity:
(a)
that is not payable on purchase; and
(b)
whose terms ensure:
(i)
that payment of benefits under the annuity:
(A)
is not commenced earlier than the time when Part 6 permits or requires the benefits to be paid from an approved deposit fund; and
(B)
is to commence as soon as practicable after the annuitant attains (or, if the annuitant has died, would have attained) age 65; and
(ii)
that, except as permitted in relation to approved deposit funds by the Act or these Regulations, the provider of the annuity does not recognise, or in any way encourage or sanction:
(A)
an assignment of an interest under the annuity; or
(B)
the giving of a charge over, or in relation to the annuity;
Definition of "deferred annuity" amended by SR No 83 of 1998 and SR No 189 of 1994.
Government co-contribution benefits
means Government co-contributions made under the Co-contribution Act, less:
(a)
the costs applicable to them; and
(b)
any amounts repaid under section 24 of the Co-contribution Act.
History
Definition of "Government co-contribution benefits" substituted by SR No 152 of 2004, reg 3 and Sch 1 item 1, effective 25 June 2004. The definition formerly read:
Government co-contribution benefits
means Government co-contributions made under the Co-contribution Act less the costs applicable to them.
Definition of "Government co-contribution benefits" inserted by SR No 12 of 2004, reg 3 and Sch 1 item 2, effective 20 February 2004.
investment earnings
, in relation to a member's benefits (or a members' benefits of a particular kind) in a regulated superannuation fund or an approved deposit fund as at any time, means the total of the amounts credited, less the total of the amounts debited, to the member's account by way of investment return down to that time in respect of those benefits.
investment return
, in relation to a member's benefits (or a member's benefits of a particular kind) in a regulated superannuation fund or an approved deposit fund over a particular period means:
(a)
in the case of an approved deposit fund or an accumulation fund in which the trustee does not maintain reserves - the proportion of the return to the fund on investments over that period that is attributable to those benefits; or
(b)
in the case of an approved deposit fund or an accumulation fund in which the trustee maintains reserves - the return determined by the trustee in accordance with regulation 5.03 for that period; or
(c)
in the case of a defined benefit fund:
(i)
the proportion of the return to the fund on investments over that period that is attributable to those benefits; or
(ii)
the return on the benefits over that period that is fair and reasonable to all members of the fund, being a return based either on the actual return earned on the investments of the fund or on a commercially available rate of interest; or
(iii)
the return on the benefits that is derived by increasing the benefits in proportion with the increase in the salary of the member over that period.
mandated employer contributions
, in relation to a member of a regulated superannuation fund, means contributions by, or on behalf of, an employer that are equal to the sum of:
(a)
the contributions made by, or on behalf of, the employer to the fund in relation to the member, that:
(i)
reduce the employer's potential liability for the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992; or
(ii)
are payments of shortfall components; and
(b)
the contributions (other than contributions of the kind specified in paragraph (a)) made by, or on behalf of, the employer to the fund in relation to the member in or towards satisfaction of the employer's obligation to make contributions for the member, being an obligation under an agreement certified, or an award made, on or after 1 July 1986 by an industrial authority.
mandated employer-financed benefits
, in relation to a member of a regulated superannuation fund as at a particular time, means benefits equal to the sum of:
(a)
the amount of the mandated employer contributions (if any) made to the fund in relation to the member down to that time; and
(b)
the amount of the mandated employer-financed benefits (if any) paid into the fund in relation to the member down to that time; and
(c)
the amount of the investment earnings on those contributions and benefits down to that time;
less the costs applicable to the amounts down to that time.
History
Definition of "mandated employer-financed benefits" substituted by SR No 159 of 1995.
member contributions
, in relation to a member of a regulated superannuation fund, means contributions by, or on behalf of, the member to the fund, but does not include employer contributions made in respect of the member.
member-financed benefits
, in relation to a member of a regulated superannuation fund as at a particular time, means benefits equal to the sum of:
(a)
the amount of the member contributions (if any) made to the fund in relation to the member down to that time; and
(b)
the amount of the member-financed benefits (if any) paid into the fund in relation to the member down to that time; and
(c)
the amount of the investment earnings on those contributions and benefits down to that time;
less the costs applicable to those amounts down to that time.
History
Definition of "member-financed benefits" substituted by SR No 159 of 1995.
OSS Laws
means:
(a)
the Occupational Superannuation Standards Act 1987 as in force immediately before the commencement of section 5 of the Occupational Superannuation Standards Amendment Act 1993; and
(b)
the Occupational Superannuation Standards Regulations.
History
Definition of "OSS Laws" substituted by SR No 117 of 1997.
rolled over
means paid as a superannuation lump sum (other than by way of being transferred) within the superannuation system.
History
Definition of "rolled over" substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 26, effective 1 July 2007. The definition formerly read:
"rolled over"
means paid as an eligible termination payment (other than by way of being transferred) within the superannuation system;
superannuation provider
means:
(a)
the trustee of a regulated superannuation fund; or
(b)
the trustee of an approved deposit fund; or
(c)
an RSA provider.
History
Definition of "superannuation provider" inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 15, effective 18 December 2008.
superannuation system
means the system comprising:
(a)
regulated superannuation funds; and
(b)
approved deposit funds; and
(c)
the Commissioner of Taxation in the Commissioner of Taxation's role as the maker of payments to a superannuation provider under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(d)
deferred annuities; and
(e)
EPSSSs; and
(f)
(Omitted by SLI No 282 of 2008)
(g)
(Omitted by SLI No 282 of 2008)
(h)
RSAs; and
(i)
annuities; and
(j)
the Commissioner of Taxation in the Commissioner of Taxation's role as the maker of payments to a superannuation provider under subsection 131-80(1) or (3) in Schedule 1 to the Taxation Administration Act 1953.
[
CCH Note: MODIFICATION INSTRUMENT 99/0001
(No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, para (c) of the definition of "superannuation system" was substituted with:
(c)
the Commissioner of Taxation in the Commissioner of Taxation's role as the recipient of unclaimed money that is paid to the Commissioner of Taxation under subsection 225(5) of the Act;
(ca)
a State or Territory authority, in its role as the recipient of unclaimed money under subsection 225(9) of the Act; and
]
History
Definition of "superannuation system" amended by FRLI No F2024L00473, reg 4 and Sch 1 item 8, by inserting para (j), effective 15 September 2024.
Definition of "superannuation system" amended by SLI No 282 of 2008, reg 3 and Sch 1 item 16-17, by substituting para (c) and omitting para (f) and (g), effective 18 December 2008. Para (c), (f) and (g) formerly read:
(c)
ASIC as the recipient of unclaimed money paid to ASIC under subsection 225(5) of the Act; and
(f)
the Commissioner of Taxation in the Commissioner of Taxation's role as the recipient of unclaimed money that is paid to the Commissioner of Taxation under subsection 83(1) of the RSA Act; and
(g)
a State or Territory, or a State or Territory Authority, in its role as the recipient of unclaimed money under subsection 84(1) of the RSA Act; and
Definition of "superannuation system" amended by SR No 14 of 1999, SR No 193 of 1998, SR No 117 of 1997 and SR No 189 of 1994.
transferred,
in relation to a member's benefits paid out of, or received by, a regulated superannuation fund or approved deposit fund, means paid to, or received from:
(a)
another regulated superannuation fund or approved deposit fund; or
(b)
an RSA provided by an RSA institution; or
(c)
an EPSSS;
otherwise than upon the satisfaction by the member of a condition of release (within the meaning of Part 6) for all those benefits.
History
Definition of "transferred" substituted by SR No 14 of 1999 and SR No 117 of 1997.
5.01(2)
For the purposes of this Part, a payment from the Superannuation Holding Accounts Special Account is taken to be a mandated employer contribution.
History
Reg 5.01(2) amended by SLI No 218 of 2005, reg 3 and Sch 1 item 35, by substituting "Superannuation Holding Accounts Special Account" for "Superannuation Holding Accounts Reserve", effective 8 October 2005.
Reg 5.01(2) amended by SR No 384 of 1995; inserted by SR No 159 of 1995.
5.01(3)
(Repealed by SR No 200 of 2002)
History
Reg 5.01(3) repealed by SR No 200 of 2002, reg 4 and Sch 2 item 2, effective 29 August 2002. Reg 5.01(3) formerly read:
5.01(3)
For the purposes of this Part, a reference to the member-protection standards having only lost-member operation in relation to a person is a reference to the member-protection standards operating to protect the benefits of that person only if the person becomes a lost member of a fund and not if he or she becomes a protected member of a fund.
Reg 5.01(3) inserted by SR No 159 of 1995.
REGULATION 5.01A
5.01A
OPERATING STANDARDS - DETERMINATION OF COSTS AND INVESTMENT RETURN
For the purposes of subsections 31(1) and 32(1) of the Act:
(a)
the standard set out in subregulations 5.02(1) and (3), 5.02B(2), 5.02C(2) and 5.03(2) is applicable to the operation of regulated superannuation funds and approved deposit funds; and
(b)
the standard set out in subregulation 5.03(1) is applicable to the operation of:
(i)
accumulation funds; and
(ii)
approved deposit funds;
that maintain reserves.
History
Reg 5.01A amended by SR No 309 of 1997 and inserted by SR No 189 of 1994.
REGULATION 5.01B
5.01B
TRUSTEE MAY PROVIDE GREATER PROTECTION THAN THIS PART REQUIRES
The trustee of a regulated superannuation fund or approved deposit fund has the power, despite anything in the governing rules of the fund, to protect the benefits of members:
(a)
to a greater degree than is required by this Part; or
(b)
from an earlier date than is required by this Part;
if the trustee does so in a way that is consistent with this Part.
Note:
This regulation was amended with effect from 1 July 2013 as part of changes to the former member protection standards. A trustee might choose to continue to protect the benefits of all members from 1 July 2013 until when the trustee starts to enrol members in the MySuper product.
History
Reg 5.01B amended by SLI No 86 of 2013, reg 4 and Sch 1 item 4, by substituting the note, effective 1 July 2013. The note formerly read:
Note:
For example, a trustee might choose to protect the benefits of all members with withdrawal benefits less than $1,500, rather than all protected members (i.e., broadly, members with withdrawal benefits less than $1,000) as this Part requires.
Protected member
is defined in regulation 1.03.
Reg 5.01B inserted by SR No 64 of 1995.
REGULATION 5.02
DETERMINATION OF COSTS
5.02(1)
The trustee of a regulated superannuation fund or an approved deposit fund must determine the costs to be charged from time to time against a member's benefits in the fund.
5.02(2)
In determining the costs to be charged against a member's benefits, the trustee may include:
(a)
the direct costs of establishing, operating and terminating the fund; and
(b)
any administrative, insurance and taxation costs relating to the establishment, operation and termination of the fund; and
(c)
if the member's benefits are subject to a payment split, the costs incurred in administering the payment split (not including the costs offset by any fees payable under section 98 of the Family Law (Superannuation) Regulations 2025 in respect of the payment split).
History
Reg 5.02(2) amended by FRLI No F2025L00179, reg 4 and Sch 1 item 28, by substituting "section 98 of the Family Law (Superannuation) Regulations 2025" for "regulation 59 of the Family Law (Superannuation) Regulations 2001", effective 1 April 2025.
Reg 5.02(2) amended by SR No 353 of 2001, reg 3 and Sch 1 items 33 and 34, by substituting "the fund; and" for "the fund." in para (b) and inserting para (c), effective 28 December 2002.
5.02(3)
Subject to regulation 5.01B, in determining the costs to be charged against a member's benefits, the trustee must ensure that the costs of the fund (including the costs (if any) incurred by the fund as a result of the operation of Division 5.4) are distributed in a fair and reasonable manner as between:
(a)
all the members of the fund; and
(b)
the various kinds of benefits of each member of the fund.
History
Reg 5.02(3) amended by SLI No 86 of 2013, reg 4 and Sch 1 item 5, by omitting "the member-protection standards and" after "Subject to", effective 1 July 2013.
Reg 5.02(3) amended by SR No 64 of 1995; SR No 47 of 1995.
5.02A
(Repealed) REGULATION 5.02A MEANING OF FAIR AND REASONABLE
(Repealed by SLI No 86 of 2013)
History
Reg 5.02A repealed by SLI No 86 of 2013, reg 4 and Sch 1 item 6, effective 1 July 2013. Reg 5.02A formerly read:
REGULATION 5.02A MEANING OF FAIR AND REASONABLE
5.02A(1)
For the purposes of subregulation 5.02(3), a distribution of costs in relation to a fund is not fair and reasonable if, in respect of a period that is, in relation to the fund, a good investment period, the trustee of the fund applies administration costs (being administration costs that would, but for the member-protection standards, be applied to erode the minimum benefits of members of the fund to whom the member-protection standards apply) in a way that erodes the benefits (other than the minimum benefits) of those members.
5.02A(2)
For the purposes of subregulation (1), a period is a good investment period in relation to a fund if the total administration costs that would be charged to members of the fund but for regulation 5.17 is not greater than the total investment return of the fund that would be credited to members of the fund in respect of the period but for that regulation.
Reg 5.02A inserted by SR No 159 of 1995.
REGULATION 5.02B
PRIORITY IN DEDUCTING SURCHARGE OR INSTALMENT
5.02B(1)
[Application]
This regulation applies if a trustee has decided to reduce a member's benefits in connection with payment of a superannuation contributions surcharge or an advance instalment of surcharge.
5.02B(2)
[When reducing benefits]
In reducing the member's benefits, the trustee must:
(a)
if possible - deduct an amount equal to the whole of the amount of the reduction from the preserved benefits; and
(b)
if the required deduction cannot be met under paragraph (a) - deduct the balance from the restricted non-preserved benefits; and
(c)
if the required deduction cannot be met under paragraphs (a) and (b) - deduct the balance from the unrestricted non-preserved benefits.
History
Reg 5.02B inserted by SR No 309 of 1997.
REGULATION 5.02C
REFUND OF COSTS
5.02C(1)
[Authority to refund]
The trustee of a regulated superannuation fund or approved deposit fund may refund, to a member's benefits in the fund, costs charged against the member's benefits.
5.02C(2)
[Determining amount]
In determining the amount of refund to be credited, the trustee must ensure that the total amount to be refunded is distributed in a fair and reasonable manner to all the members of the fund against whom the costs were charged.
History
Reg 5.02C inserted by SR No 309 of 1997.
REGULATION 5.03
INVESTMENT RETURNS
5.03(1)
The trustee of an accumulation fund or an approved deposit fund that maintains reserves must determine the investment return to be credited or debited from time to time to a member's benefit (or benefits of a particular kind) in the fund, having regard to:
(a)
the return to the fund on investments; and
(b)
the extent to which the costs of the fund exceed (or fall below) the aggregate of the costs charged to member's benefits under regulation 5.02; and
(c)
the level of the reserves of the entity.
5.03(2)
Subject to regulation 5.01B and Division 6.1, the trustee of a regulated superannuation fund or an approved deposit fund must determine the investment return to be credited or debited to a member's benefits (or benefits of a particular kind) in a way that is fair and reasonable as between:
(a)
all the members of the fund; and
(b)
the various kinds of benefits of each member of the fund.
History
Reg 5.03(2) amended by SLI No 86 of 2013, reg 4 and Sch 1 item 7, by omitting "the member-protection standards," after "Subject to", effective 1 July 2013.
Reg 5.03(2) amended by SR No 175 of 1998, SR No 64 of 1995 and SR No 189 of 1994.
Division 5.2 - Minimum benefits
REGULATION 5.04
MINIMUM BENEFITS - REGULATED SUPERANNUATION FUNDS
5.04(1)
Subject to regulations 5.05, 5.06 and 5.06B, a member's minimum benefits in a regulated superannuation fund are as set out in this regulation.
History
Reg 5.04(1) amended by SR No 353 of 2001, reg 3 and Sch 1 item 35, by substituting "Subject to regulations 5.05, 5.06 and 5.06B," for "Subject to regulations 5.05 and 5.06,", effective 28 December 2002.
5.04(2)
If the fund is an accumulation fund, the member's minimum benefits are all of the member's benefits in the fund.
History
Reg 5.04(2) substituted by SR No 84 of 2004, reg 3 and Sch 1 item 1, effective 12 May 2004. Reg 5.04(2) formerly read:
5.04(2)
If the fund is an accumulation fund, the member's minimum benefits are:
(a)
the member's member-financed benefits; and
(b)
the member's mandated employer-financed benefits; and
(c)
Government co-contribution benefits and any investment earnings on them.
Reg 5.04(2) amended by SR No 12 of 2004, reg 3 and Sch 1 items 3 and 4, by substituting "benefits; and" for "benefits." in para (b) and inserting para (c), effective 20 February 2004.
5.04(3)
If the fund is a defined benefit fund, the member's minimum benefits are as follows:
(a)
if the member belongs to a class of employees in relation to which a relevant benefit certificate applies, the amount of the member's minimum requisite benefit; or
(b)
in any other case:
(i)
the member's member-financed benefits; and
(ii)
the member's mandated employer-financed benefits; and
(iii)
Government co-contribution benefits and any investment earnings on them; and
(iv)
any amount allocated under regulation 7.11; and
(v)
any PPL superannuation contributions within the meaning of the Paid Parental Leave Act 2010.
History
Reg 5.04(3) amended by FRLI No F2025L00675, reg 4 and Sch 1 item 3, by inserting para (b)(v), effective 13 June 2025.
Reg 5.04(3) amended by FRLI No F2021L00199, reg 4 and Sch 1 item 3, by substituting "regulation 7.11" for "regulation 292-170.03 of the Income Tax Assessment Regulations 1997" in para (b)(iv), effective 1 April 2021 and applicable in relation to any contribution received on or after 1 July 2021.
Reg 5.04(3) amended by SLI No 105 of 2007, reg 3 and Sch 1 items 6 and 7, by substituting "earnings on them; and" for "earnings on them." in para (b)(iii) and inserting para (b)(iv), effective 1 July 2007.
Reg 5.04(3) amended by SR No 12 of 2004, reg 3 and Sch 1 items 5 and 6, by substituting "benefits; and" for "benefits." in para (b)(ii) and inserting para (b)(iii), effective 20 February 2004.
REGULATION 5.05
MANDATED EMPLOYER CONTRIBUTIONS - REGULATED SUPERANNUATION FUNDS
5.05(1)
[Contributions deemed mandated employer contributions]
Subject to this regulation, contributions to a regulated superannuation fund are taken to be mandated employer contributions.
5.05(2)
[Contributions received after one year]
If:
(a)
at least 1 year has elapsed since the fund received the contributions; and
(b)
the trustee:
(i)
is satisfied that the contributions are not in fact mandated employer contributions; and
(ii)
decides not to continue to treat the contributions as mandated employer contributions;
subregulation (1) ceases to apply to the contributions.
5.05(3)
[Contributions received before lapse of one year]
If:
(a)
less than 1 year has elapsed since the fund received the contributions; and
(b)
the trustee is satisfied that the contributions are not in fact mandated employer contributions;
subregulation (1) ceases to apply to the contributions.
5.05(4)
[Power of trustee]
The trustee has power to make a decision of the kind mentioned in subparagraph 2(b)(ii) despite anything in the governing rules of the fund.
Example of the application of this regulation
A trustee of a fund may receive a non-mandated employer contribution from an employer-sponsor of the fund that the trustee does not know is a non-mandated employer contribution (i.e. a contribution not made in satisfaction of the employer-sponsor's superannuation guarantee or award obligation).
Upon acceptance, the contribution will be taken to be a mandated employer contribution and therefore subject to the minimum benefits standards.
From this point, one of three circumstances may apply:
(a) the trustee may become aware in the first year after the contribution was received that the contribution is a non-mandated employer contribution, and, if this is the case, the trustee must treat the contribution as a non-mandated employer contribution; or
(b) the trustee may become aware more than a year after the contribution was received that the contribution is a non-mandated employer contribution, and, if this is the case, the trustee may continue to treat the contribution as a mandated employer contribution instead of making corrections to reflect the change; or
(c) the trustee may never become aware that the contribution is a non-mandated employer contribution, and, if this is the case, the contribution will always be taken to be a mandated employer contribution.
REGULATION 5.06
CERTAIN BENEFITS ROLLED OVER OR TRANSFERRED TO REGULATED SUPERANNUATION FUNDS TAKEN TO BE MINIMUM BENEFITS
5.06(1)
[Minimum benefits]
Subject to this regulation, the following benefits are taken to be minimum benefits in a regulated superannuation fund:
(a)
benefits rolled over or transferred to the regulated superannuation fund;
(b)
benefits allotted under Division 6.7 to an interest in the regulated superannuation fund held by, or created for, a receiving spouse.
History
Reg 5.06(1) substituted by SLI No 334 of 2005, reg 3 and Sch 2 item 5, effective 1 January 2006. Reg 5.06(1) formerly read:
5.06(1)
Subject to this regulation, benefits rolled over or transferred to a regulated superannuation fund are taken to be minimum benefits in the regulated superannuation fund.
5.06(2)
[Benefits received after one year]
If:
(a)
at least 1 year has elapsed since the fund received the benefits; and
(b)
the trustee:
(i)
is satisfied that the benefits are not in fact minimum benefits; and
(ii)
decides not to continue to treat the benefits as minimum benefits;
subregulation (1) ceases to apply to the benefits.
5.06(3)
[Benefits received before lapse of one year]
If:
(a)
less than 1 year has elapsed since the fund received the benefits; and
(b)
the trustee is satisfied that the benefits are not in fact minimum benefits;
subregulation (1) ceases to apply to the benefits.
5.06(4)
[Amount of minimum benefits]
If benefits that have been rolled over or transferred to a regulated superannuation fund are taken under this regulation to be minimum benefits, the amount of the minimum benefits as at any time is the sum of:
(a)
the benefits rolled over or transferred to the fund; and
(b)
the investment earnings on those benefits down to that time;
less the costs applicable to those benefits down to that time.
5.06(5)
[Power of trustee]
The trustee has power to make a decision of the kind mentioned in subparagraph (2)(b)(ii) despite anything in the governing rules of the fund.
5.06(6)
[Interpretation]
In this regulation:
benefits
means benefits other than benefits rolled over or transferred to a regulated superannuation fund from an RSA.
History
Reg 5.06(6) inserted by SR No 117 of 1997.
REGULATION 5.06A
5.06A
BENEFITS ROLLED OVER OR TRANSFERRED FROM AN RSA TO REGULATED SUPERANNUATION FUNDS TAKEN TO BE MINIMUM BENEFITS
Benefits rolled over or transferred to a regulated superannuation fund from an RSA are taken to be minimum benefits in the regulated superannuation fund.
History
Reg 5.06A inserted by SR No 117 of 1997.
REGULATION 5.06B
MINIMUM BENEFITS IF NEW INTEREST CREATED, OR BENEFITS ROLLED OVER OR TRANSFERRED, UNDER DIVISION 7A.2
5.06B(1)
[Restriction on decision]
This regulation applies if:
(a)
an interest (the
original interest
) in an accumulation fund is subject to a payment split; and
(b)
under Division 7A.2:
(i)
a new interest is created in the fund for the non-member spouse; or
(ii)
the transferable benefits of the non-member spouse are rolled over or transferred to another fund, an EPSSS or an RSA.
5.06B(2)
[Trustee's discretion where interests created]
If subparagraph (1)(b)(i) applies, the trustee may decide that all the benefits held in the original interest, and in the new interest, immediately after the new interest is created are minimum benefits.
5.06B(3)
[Trustee's discretion where benefits rolled over, etc]
If subparagraph (1)(b)(ii) applies, the trustee may decide that all the benefits held in the original interest immediately after the transferable benefits are rolled over or transferred are minimum benefits.
Note: Transferable benefits rolled over or transferred to another regulated superannuation fund would be minimum benefits in accordance with regulation 5.06.
5.06B(4)
[No decision if effect reduces minimum benefits]
However, the trustee must not make a decision mentioned in subregulation (2) or (3) if the decision would have the effect of reducing the minimum benefits held by the other members of the fund.
5.06B(5)
[Proportionate allocation]
If the trustee does not make a decision mentioned in subregulation (2) or (3), the minimum benefits held in the original interest are allocated between the member spouse and the non-member spouse in proportion to the split of benefits in the original interest.
History
Reg 5.06B inserted by SR No 353 of 2001, reg 3 and Sch 1 item 36, effective 28 December 2002.
REGULATION 5.07
5.07
MINIMUM BENEFITS - APPROVED DEPOSIT FUNDS
A member's minimum benefits in an approved deposit fund are the amount of the member's accumulated deposit in that fund.
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.
History
Reg 5.08(1) amended by SLI No 334 of 2005, reg 3 and Sch 2 items 6 and 7, by inserting para (c), effective 1 January 2006.
Reg 5.08 amended by SR No 84 of 2004, reg 3 and Sch 1 item 2, by substituting "(1) For subsections 31(1) and 32(1) of the Act," for "For the purposes of subsections 31(1) and 32(1) of the Act,", effective 12 May 2004.
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 |
History
Reg 5.08(1A) inserted by SLI No 146 of 2011, reg 3 and Sch 1 item 3, effective 9 August 2011.
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).
History
Reg 5.08(2) inserted by SR No 84 of 2004, reg 3 and Sch 1 item 3, effective 12 May 2004.
[
CCH Note:
Superannuation Industry (Supervision) modification declaration No 1 of 2015 (made 23 September 2015) modifies the Superannuation Industry (Supervision) Regulations 1994, in relation to all RSE licensees of registrable superannuation entities that are regulated superannuation funds, as if the following regulations were inserted after reg 5.08(2), effective 23 September 2015:
5.08(2A)
Subregulation (1) does not apply in relation to an amount of minimum benefits of a member (the
forfeited member
) in an accumulation fund (the
forfeiting fund
) that is not a self-managed superannuation fund if all the following conditions are satisfied:
(a)
The amount is attributable only to non-mandated employer contributions that were made, for the benefit of the forfeited member, to:
(i)
the forfeiting fund; or
(ii)
another regulated superannuation fund (other than a self-managed superannuation fund) of which the forfeited member was a member and in which the forfeited member did not have a defined benefit interest.
(b)
The forfeited member's entitlement to the amount is subject to certain minimum service provisions (the
applicable minimum service provisions
) that are contained in one or more of the following:
(i)
the governing rules of the forfeiting fund;
(ii)
a written agreement between the forfeited member and the forfeited member's employer;
(iii)
an award relating to the forfeited member's conditions of employment;
(iv)
a certified agreement relating to the forfeited member's conditions of employment.
Note: Some of the applicable minimum service provisions may be contained in one of the documents mentioned in subparagraphs (i) to (iv) while others may be contained in another of those documents.
(c)
The forfeited member failed to satisfy the minimum service requirement contained in the applicable minimum service provisions.
(d)
As a result of that failure, the forfeited member lost their entitlement to the amount.
(e)
Either:
(i)
the applicable minimum service provisions applied to the forfeited member during the whole of the period (the
post-11 May 2004 period
) from 11 May 2004 to the occurrence of the forfeiting event; or
(ii)
the applicable minimum service provisions applied to the forfeited member during the latter part of the post-11 May 2004 period and predecessor minimum service provisions applied to the member during the rest of the post-11 May 2004 period.
(f)
If subparagraph (e)(i) applies - the trustee of the forfeiting fund is satisfied, on reasonable grounds, that the applicable minimum service provisions are not more unfavourable to the forfeited member than the predecessor minimum service provisions.
Note: An example of the applicable minimum service provisions being more unfavourable to the forfeited member than the predecessor minimum service provisions is where the predecessor minimum service provisions specify a minimum service period of 10 years, while the applicable minimum service provisions specify a minimum service period of 12 years.
(g)
If any of the applicable minimum service provisions are contained in the governing rules of the forfeiting fund - the trustee of the forfeiting fund believes, on reasonable grounds, that the provisions, or their effect, were disclosed to the forfeited member in accordance with applicable disclosure requirements imposed by or under the Act or the Corporations Act 2001.
(h)
The contributions mentioned in paragraph (a) were required to be made by:
(i)
the applicable minimum service provisions; or
(ii)
predecessor minimum service provisions.
Note 1: Note the use of the term required in paragraph (h). If, under the applicable minimum service provisions or predecessor minimum service provisions, the employer merely has a discretion to make non-mandated employer contributions to the fund for the benefit of the forfeited member, but is not obliged to make the contributions, the exception in subregulation (2A) will not apply to the minimum benefits financed by such discretionary contributions.
Note 2: If a member loses their entitlement to an amount of benefits in the manner described in subregulation (2A), the amount cannot be paid out to the employer unless the payment complies with section 117 of the Act.
Interpretation
5.08(2B)
In this regulation:
Act
means the Superannuation Industry (Supervision) Act 1993.
applicable minimum service provisions
has the meaning given in subregulation (2A).
award
means an award relating to conditions of employment which is made by an employment tribunal under a law of the Commonwealth, a State or a Territory.
certified agreement
means an agreement relating to conditions of employment which is certified, approved or registered by an employment tribunal under a law of the Commonwealth, a State or a Territory.
employment tribunal
means a tribunal or body having authority under a law of the Commonwealth, a State or a Territory to make an award or to certify, approve or register an agreement relating to conditions of employment.
forfeited member
has the meaning given in subregulation (2A).
forfeiting event
, in relation to the forfeited member, means the event (involving ceasing to be an employee or member) which results in the forfeited member failing to satisfy the minimum service requirement in the applicable minimum service provisions, and consequently losing their entitlement to the amount of minimum benefits mentioned in subregulation (2A).
forfeiting fund
has the meaning given in subregulation (2A).
minimum service provisions
has the meaning given in subregulation (2C).
minimum service requirement
has the meaning given in subregulation (2C).
non-mandated employer contributions
means employer contributions other than mandated employer contributions.
predecessor minimum service provisions
has the meaning given in subregulation (2D).
5.08(2C)
In this regulation,
minimum service provisions
means provisions that satisfy all the following conditions:
(a)
The provisions are contained in one or more of the following:
(i)
the governing rules of a regulated superannuation fund (other than a self-managed superannuation fund);
(ii)
a written agreement between a member of the fund and the member's employer;
(iii)
an award relating to the member's conditions of employment;
(iv)
a certified agreement relating to the member's conditions of employment.
Note: Some of the minimum service provisions may be contained in one of the documents mentioned in subparagraphs (i) to (iv) while others may be contained in another of those documents.
(b)
The provisions require the member's employer to make non-mandated employer contributions to the fund for the benefit of the member.
(c)
The provisions make the member's entitlement to the benefits that are attributable to those non-mandated employer contributions conditional or contingent on the member satisfying a stipulation (a
minimum service requirement
) contained in the provisions that the member be, for a specified minimum period (a
minimum service period
):
(i)
an employee (or a particular class or category of employee) of the employer; or
(ii)
an employee (or a particular class or category of employee) of a person (a
previous employer
) who previously carried on the business of the employer; or
(iii)
an employee (or a particular class or category of employee) of a related body corporate (a
related employer
) of the employer or a previous employer; or
(iv)
a member (or a particular class or category of member) of the fund; or
(v)
a member (or a particular class or category of member) of another regulated superannuation fund (other than a self-managed superannuation fund) to which the employer, a previous employer or a related employer made contributions for the benefit of the member.
Note: The minimum service requirement may require the member to belong to only one of the categories mentioned in paragraphs (i) to (v), or to only some of those categories. For example, a given minimum service requirement may require the member to be an employee of either the employer or a related employer for a minimum of 10 years.
Also, a minimum service requirement may permit the member to be in different categories during different parts of the minimum service period (as long as the member is in one or other of those categories at alltimes during that period).
5.08(2D)
In this regulation,
predecessor minimum service provisions
, in relation to the applicable minimum service provisions, means:
(a)
an earlier version of the applicable minimum service provisions, which applied to the forfeited member when they were a member of the forfeiting fund; or
(b)
other minimum service provisions, which applied to the forfeited member when they were a member of another regulated superannuation fund (other than a self-managed superannuation fund) from which they were subsequently transferred to the forfeiting fund.
]
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.
History
Reg 5.08(3) inserted by SR No 84 of 2004, reg 3 and Sch 1 item 3, effective 12 May 2004.
(Repealed) Division 5.4 - Restrictions on exit fees on the rollover or transfer of benefits in certain cases
History
Div 5.4 repealed by SR No 14 of 1999 and inserted by SR No 47 of 1995.
5.09
(Repealed) REGULATION 5.09 APPLICATION OF DIVISION
(Repealed by SR No 14 of 1999)
History
Reg 5.09 inserted by SR No 47 of 1995.
5.10
(Repealed) REGULATION 5.10 OPERATING STANDARD - RESTRICTION ON EXIT FEES
(Repealed by SR No 14 of 1999)
History
Reg 5.10 inserted by SR No 47 of 1995.
5.11
(Repealed) REGULATION 5.11 INCONSISTENCY BETWEEN THIS DIVISION AND THE MEMBER-PROTECTION STANDARDS
(Repealed by SR No 14 of 1999)
History
Reg 5.11 inserted by SR No 64 of 1995.
(Repealed) Division 5.5 - Member-protection standards
History
Div 5.5 repealed by SLI No 86 of 2013, reg 4 and Sch 1 item 8, effective 1 July 2013. Div 5.5 formerly read:
Division 5.5 - Member-protection standards
SECTION 5.12
REGULATION 5.12 INTERPRETATION
5.12
In this Division:
exit fee
means a fee charged by a trustee of a fund in relation to a payment of benefits in the fund, being a fee that the trustee would not have charged if the payment had not been made.
member reporting period
, in relation to a fund, means the reporting period that applies under subsection 1017D(2) of the Corporations Act 2001 and associated provisions.
History
Definition of "member reporting period" substituted by SR No 21 of 2002, reg 3 and Sch 1 item 33, effective 11 March 2002. The definition formerly read:
'member reporting period'
in relation to a fund, means:
(a)
a member reporting period that applies under Subdivision 2.4.2; or
(b)
an exit reporting period within the meaning of regulation 2.44.
Reg 5.12 inserted by SR No 64 of 1995.
SECTION 5.13
REGULATION 5.13 OPERATING STANDARDS - MEMBER PROTECTION
5.13
For the purposes of subsections 31(1) and 32(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds and approved deposit funds.
History
Reg 5.13 substituted by SR No 159 of 1995; inserted by SR No 64 of 1995.
REGULATION 5.14 MEMBER-PROTECTION STANDARDS NOT TO APPLY TO CERTAIN FUNDS
5.14(1)
In this regulation:
unitised fund
means a fund for which the investment return is reflected in the price of units in the fund rather than being credited to or debited against the accounts of the members.
5.14(1A)
(Omitted by SR No 384 of 1995)
History
Reg 5.14(1A) inserted by SR No 159 of 1995.
5.14(2)
The member-protection standards do not apply to a unitised fund if:
(a)
a single price is applicable both to the buying and selling of units in the fund and all the administration costs of the fund are reflected in that price; or
(b)
separate prices are applicable, respectively, to the buying and selling of units in the fund and:
(i)
the price differential, also known as the buy/sell cost spread, is solely attributable to outgoings comprising:
(A)
brokerage costs; and
(B)
fees and charges charged against a member's benefits that are excluded from the definition of
administration costs
under paragraphs (a), (b) and (c) of that definition in subregulation 5.01(1); and
(ii)
the brokerage costs referred to in sub-subparagraph (i)(A), if any, are applied proportionally in relation to all units in the fund; and
(iii)
all the administration costs of the fund, except for any brokerage costs applied in accordance with sub-subparagraph (i)(A) and subparagraph (ii), are reflected in both the buy price and the sell price of the units; or
(c)
the administration costs of the fund are not wholly reflected in the price, or prices, of units in the fund but the benefits of its members are protected in a way that is consistent with the member-protection standards.
History
Reg 5.14(2) substituted by SR No 384 of 1995.
5.14(3)
The member protection standards do not apply to a fund that is not a unitised fund if all of the administration costs of the fund are applied to each member in direct proportion to:
(a)
the investment return credited to, or debited against, the member; or
(b)
the member's benefits.
History
Reg 5.14(3) inserted by SR No 384 of 1995.
Reg 5.14 inserted by SR No 64 of 1995.
SECTION 5.15
REGULATION 5.15 MEMBER-PROTECTION STANDARDS NOT TO APPLY TO CERTAIN PROTECTED MEMBERS
5.15
If:
(a)
a member of a fund is a protected member at the end of a member reporting period; and
(b)
the trustee of the fund has a reasonable expectation (in accordance with regulation 7.9.24 of the Corporations Regulations 2001 and subsections 7.1(12) to (15) of Part 7 of Schedule 10A to the Corporations Regulations 2001) that the member will have a withdrawal benefit of at least $1,500 within 12 months after the end of that member reporting period; and
(c)
his or her withdrawal benefits reach $1,500 within 12 months after the end of that member reporting period;
he or she is taken not to have been subject to the member-protection standards from the beginning of that member reporting period until the end of that period of 12 months.
Note: See regulation 2.26B in relation to protected members whose benefits are reasonably expected to reach $1,500 within the period of 12 months after the end of a member reporting period.
History
Reg 5.15(b) amended by SR No 21 of 2002, reg 3 and Sch 1 item 34, effective 11 March 2002, by substituting "regulation 7.9.24 of the Corporations Regulations 2001 and subsections 7.1(12) to (15) of Part 7 of Schedule 10A to the Corporations Regulations 2001)" for "regulation 2.26B)".
Reg 5.15 inserted by SR No 64 of 1995.
SECTION 5.15A
REGULATION 5.15A LIMITATION OF APPLICATION OF MEMBER-PROTECTION STANDARDS TO CERTAIN PERSONAL SUPERANNUATION MEMBERS
5.15A
(Repealed by SR No 200 of 2002)
History
Reg 5.15A repealed by SR No 200 of 2002, reg 4 Sch 2 item 3, effective 29 August 2002. Reg 5.15A formerly read:
REGULATION 5.15A LIMITATION OF APPLICATION OF MEMBER-PROTECTION STANDARDS TO CERTAIN PERSONAL SUPERANNUATION MEMBERS
5.15A
If an existing personal superannuation member (within the meaning of Division 5.6) of a regulated superannuation fund has elected under that Division not to be treated as a protected member, the member-protection standards have only lost-member operation in respect of that member while he or she remains a member of the fund.
Reg 5.15A inserted by SR No 159 of 1995.
REGULATION 5.15B MEMBER-PROTECTION STANDARDS TAKEN NOT TO HAVE APPLIED TO CERTAIN MEMBERS
5.15B(1)
If:
(a)
before 1 July 1995, the trustee of a regulated superannuation fund has formed the intention:
(i)
to apply, on behalf of a member of the fund, to an eligible rollover fund for the issue to the member of a superannuation interest in the latter fund; or
(ii)
not to protect the benefits of a member; and
(b)
the trustee keeps a record of having formed that intention, being a record that identifies the member; and
(c)
the benefits of the member are paid out of the fund before 1 October 1995; and
(d)
the trustee has not charged an exit fee in respect of the payment of those benefits out of the fund;
the member-protection standards are taken not to have applied to the member in respect of his or her membership of the fund during the period ending on the date on which the last of the member's benefits are paid out of the fund.
5.15B(2)
In subregulation (1), a reference to payment of benefits out of a fund includes:
(a)
rolling over or transferring the benefits; and
(b)
cashing the benefits; and
(c)
any combination of rolling over, transferring and cashing the benefits.
History
Reg 5.15B inserted by SR No 159 of 1995.
SECTION 5.15C
REGULATION 5.15C MEMBER-PROTECTION STANDARDS NOT TO APPLY TO PENSIONS
5.15C
The member-protection standards do not apply to any part of a member's benefits which has commenced to be taken in the form of a pension.
History
Reg 5.15C inserted by SR No 384 of 1995.
SECTION 5.15D
REGULATION 5.15D MEMBER-PROTECTION STANDARDS NOT TO APPLY TO TRADITIONAL LIFE INSURANCE POLICIES
5.15D
The member-protection standards do not apply to a part of a member's benefits that is wholly determined by a life insurance policy within the meaning of the Life Insurance Act 1995 if:
(a)
the policy includes an investment component; and
(b)
the premium is not dissected (whether by reference to the investment component or otherwise); and
(c)
the sum insured, together with bonuses (if any), is payable only upon:
(i)
the death of the life insured; or
(ii)
the occurrence of the earlier of the following events:
(A)
the death of the life insured; or
(B)
the attainment by the life insured of the age specified in the policy.
History
Reg 5.15D inserted by SR No 384 of 1995.
REGULATION 5.16 APPLICATION OF MEMBER-PROTECTION STANDARDS TO SUB-FUND
5.16(1)
Subject to subregulation (2), the trustee of a fund may treat a sub-fund within the fund as a fund for the purposes of the member-protection standards if the sub-fund satisfies the following conditions (otherwise than for the purposes of winding up):
(a)
the sub-fund has separately identifiable assets and separately identifiable beneficiaries; and
(b)
the interest of each beneficiary of the sub-fund is determined by reference only to the conditions governing that sub-fund; and
(c)
there is no transfer of assets, benefits or money between the sub-fund and another sub-fund without a transfer of a corresponding beneficial interest; and
(d)
the insurance and administration costs of the sub-fund are attributable only to the sub-fund.
History
Reg 5.16(1) amended by SR No 115 of 1999.
5.16(2)
The trustee may not treat a sub-fund as a fund if the purpose of doing so is to circumvent the member-protection standards.
History
Reg 5.16 inserted by SR No 64 of 1995.
REGULATION 5.17 MEMBER-PROTECTION STANDARDS
5.17(1)
This regulation applies in relation to a member of a fund who, on or after 1 July 1995, is a protected member.
History
Reg 5.17(1) substituted by SR No 200 of 2002, reg 4 and Sch 2 item 4, effective 29 August 2002. Reg 5.17(1) formerly read:
5.17(1)
This regulation applies in relation to a member of a fund:
(a)
who, on or after 1 July 1995, is a protected member; or
(b)
if, on or after 30 June 1996:
(i)
the member:
(A)
is a lost member at the end of a member reporting period, or at an earlier time chosen by the trustee that is within that period; or
(B)
joins the fund as a lost member; and
(ii)
90 days have elapsed since the relevant time mentioned in subparagraph (i); and
(iii)
the member remains a lost member.
Reg 5.17(1) amended by SR No 317 of 1999, SR No 193 of 1998 and SR No 159 of 1995.
5.17(2)
Subject to subregulation (4), the sum charged as administration costs in respect of a relevant member reporting period against the minimum benefit component of the benefits of a member to whom this regulation applies must not exceed the investment return credited to, or debited against, the member's minimum benefits for that period.
5.17(3)
For subregulation (2) and subject to subregulation (4), a member reporting period for a protected member is a relevant member reporting period if:
(a)
the period ends after 30 June 1995; and
(b)
at the end of the period, and subject to any adjustment affecting the member's benefits (net of any exit fee) made by the trustee in respect of the period, the member is a protected member.
History
Reg 5.17(3) substituted by SR No 200 of 2002, reg 4 and Sch 2 item 5, effective 29 August 2002. Reg 5.17(3) formerly read:
5.17(3)
For the purposes of subregulation (2) and subject to subregulations (4) and (5), a member reporting period is a relevant member reporting period if:
(a)
in the case of a protected member:
(i)
at the end of the period, and subject to any adjustment affecting the member's benefits (net of any exit fee) made by the trustee in respect of the period, the member is a protected member; and
(ii)
the period ends after 30 June 1995; or
(b)
in the case of a lost member:
(i)
if the member joins the fund as a lost member - the member is lost at any time in the member reporting period; or
(ii)
in any other case, the period is:
(A)
the first member reporting period beginning after the relevant time mentioned in subparagraph (1)(b)(i); or
(B)
a subsequent member reporting period during a part of which the member remains a lost member.
Reg 5.17(3) amended by SR No 317 of 1999 and SR No 159 of 1995.
5.17(4)
For subregulations (2) and (3), if a member reporting period begins before and ends after 1 July 1995, a trustee may treat only the part of that period beginning on 1 July 1995 as being a relevant member reporting period.
History
Reg 5.17(4) amended by SR No 200 of 2002, reg 4 and Sch 2 item 6, by substituting "For subregulations (2) and (3)," for "For the purposes of subregulation (2) and paragraph (3)(a),", effective 29 August 2002.
5.17(5)
If, under Division 5.6, a member elects to waive member protection, the last relevant member reporting period in relation to that member is taken to end at the end of the day when, under regulation 5.22, the member-protection standards cease to apply to the member.
History
Reg 5.17(5) substituted for reg 5.17(5) and (5A) by SR No 200 of 2002, reg 4 and Sch 2 item 7, effective 29 August 2002. Reg 5.17(5) formerly read:
5.17(5)
For the purposes of subregulation (2) and paragraph (3)(b), if a member ceases to be a lost member during a member reporting period, a trustee may treat only the part of that period ending when the member ceases to be a lost member as being a relevant member reporting period.
5.17(5A)
(Repealed by SR No 200 of 2002)
History
Reg 5.17(5) substituted for reg 5.17(5) and (5A) by SR No 200 of 2002, reg 4 and Sch 2 item 7, effective 29 August 2002. Reg 5.17(5A) formerly read:
5.17(5A)
If, under Division 5.6, a member elects to waive member protection, the last relevant member reporting period in relation to that member is taken to end at the end of the day before the day on which, under regulation 5.22, the member-protection standards have only lost-member operation in respect of the member.
Reg 5.17(5A) inserted by SR No 159 of 1995.
5.17(6)
Subregulation (2) does not apply to a member (except for a member of a fund that is a capital guaranteed fund within the meaning of the Corporations Regulations 2001) if, in a member reporting period:
(a)
the total of the administration costs that would be charged to members of a fund but for this regulation is greater than the total investment return that would be credited to or debited against members of the fund but for this regulation in respect of that period; and
(b)
the apportionment of those costs between members is carried out in a fair and equitable manner.
History
Reg 5.17(6) amended by SR No 21 of 2002, reg 3 and Sch 1 item 35, effective 11 March 2002, by substituting "the Corporations Regulations 2001)" for "subregulation 2.01(1))".
Reg 5.17(6) amended by SR No 117 of 1997 and SR No 159 of 1995.
5.17(7)
(Omitted by SR No 159 of 1995)
5.17(8)
For the purposes of this regulation, an exit fee other than an exit fee of an amount equal to the exit fee applicable to the member's benefit at 30 June 1995 is taken to be charged against the relevant member's minimum benefit.
5.17(9)
For the purposes of paragraph (6)(b), an apportionment of costs is taken to be fair and equitable only if:
(a)
each member of the fund is charged no more than:
(i)
the amount that the member would be charged if all administration costs charged against member's benefits were distributed in direct proportion to:
(A)
the investment return credited to, or debited against, the member's benefits; or
(B)
the member's benefits; or
(ii)
the investment return credited to the member's benefits, plus $10; or
(b)
each protected member of the fund is charged no more than an amount equal to the investment return credited to the member's benefits, plus $10.
History
Reg 5.17(9)(b) amended by SR No 200 of 2002, reg 4 and Sch 2 item 8, by omitting "and lost member" after "protected member" in para (b), effective 29 August 2002.
Reg 5.17(9) amended by SR No 384 of 1995; substituted by SR No 159 of 1995.
5.17(10)
For the purposes of this regulation, a member's benefits are taken to be composed wholly of mandated employer-financed benefits except for:
(a)
the portion (if any) of the benefits that:
(i)
arose in relation to contributions made before 1 July 1995; and
(ii)
the trustee reasonably believes are not mandated employer-financed benefits; and
(b)
the portion (if any) of the benefits that:
(i)
arose in relation to contributions made on or after 1 July 1995; and
(ii)
the trustee knows are not mandated employer-financed benefits.
History
Reg 5.17(10) substituted by SR No 384 of 1995.
5.17(11)
Despite anything in this regulation, a trustee of a fund may protect the benefits of a member from an earlier date than this regulation requires.
History
Reg 5.17 inserted by SR No 64 of 1995.
REGULATION 5.18 COSTS NOT TO BE DEFERRED
5.18
If the trustee of a fund would charge costs to a member in respect of a member reporting period but for regulation 5.17, the trustee must not charge those costs to the member in a future member reporting period, whether in combination with other costs or not.
History
Reg 5.18 amended by SR No 159 of 1995; inserted by SR No 64 of 1995.
Div 5.5 inserted by SR No 64 of 1995.
(Repealed) Division 5.6 - Existing personal superannuation members
History
Div 5.6 repealed by SLI No 86 of 2013, reg 4 and Sch 1 item 9, effective 1 July 2013. Div 5.6 formerly read:
Division 5.6 - Existing personal superannuation members
SECTION 5.19
REGULATION 5.19 INTERPRETATION
5.19
In this Division:
existing personal superannuation member
means a member of a regulated superannuation fund who:
(a)
joined the fund before 1 July 1995; and
(b)
at the time he or she joined the fund, was not a person in respect of whom there was in effect a contribution arrangement of the kind referred to in subsection 16(5) of the Act (which deals with the definition of
standard employer-sponsored member
).
History
Reg 5.19 inserted by SR No 159 of 1995.
SECTION 5.20
REGULATION 5.20 OPERATING STANDARDS - EXISTING PERSONAL SUPERANNUATION MEMBERS
5.20
For the purposes of subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds.
History
Reg 5.20 inserted by SR No 159 of 1995.
REGULATION 5.21 TRUSTEE MAY OFFER ELECTION TO EXISTING PERSONAL SUPERANNUATION MEMBERS
5.21(1)
The trustee of a regulated superannuation fund that has existing personal superannuation members may offer in writing to each of those members the right to elect never to be treated by the fund as if he or she were a protected member.
5.21(2)
If the trustee offers a member the right to elect never to be treated as a protected member, the trustee:
(a)
must also offer the member the right to elect to have the member's benefits paid to an entity of the member's choice; and
(b)
may also offer the member the right to elect to have the member's benefits paid in any other way.
Note:
The trustee also has the power, under Part 24 of the Act, to pay benefits to an eligible rollover fund.
5.21(3)
The trustee may specify an entity (in this regulation called
the default entity
) that will be taken to be the member's choice of entity if:
(a)
a member elects to have benefits paid to another entity but does not specify the entity; or
(b)
a member elects to have benefits paid to another entity but that other entity refuses to accept the benefits.
5.21(4)
The default entity must be:
(a)
an entity to which the member-protection standards relating to the protection of protected members apply; or
(b)
an eligible rollover fund.
5.21(5)
A member to whom a trustee offers the right to make an election under subregulations (1) and (2) is not obliged to elect in favour of any of the courses set out in that subregulation.
5.21(6)
For the purposes of this Division, if:
(a)
a member specifies an entity to which his or her benefits are to be paid, but that entity refuses to accept the payment; or
(b)
the member elects to have his or her benefits paid to another entity, but does not specify the entity;
the member is taken to have elected to have his or her benefits paid to the default entity.
5.21(7)
If a trustee offers members of the fund the right to make an election, the trustee must provide each member to whom the election is offered with the following information:
(a)
the contact details (within the meaning of the Corporations Regulations 2001) of the default entity, if any;
(b)
a statement that:
(i)
states that a member is not obliged to make an election in favour of any of the courses offered; and
(ii)
sets out the effect of not making an election; and
(iii)
sets out the effect of making an election in favour of each of the courses offered; and
(iv)
sets out the circumstances in which the member will be taken to have elected to have his or her benefits paid to the default entity;
(c)
the amount, or, subject to subregulation (8), the approximate amount, of the member's benefits in the fund.
History
Reg 5.21(7)(a) amended by SR No 21 of 2002, reg 3 and Sch 1 item 36, effective 11 March 2002, by substituting "the Corporations Regulations 2001)" for "Part 2)".
5.21(8)
A fund may inform a member under paragraph (7)(c) of the approximate amount of the member's benefits if, at the time the information is to be given, the trustee of the fund cannot determine the exact amount of the member's benefits in the fund.
History
Reg 5.21 inserted by SR No 159 of 1995.
REGULATION 5.22 WHAT HAPPENS IF THE MEMBER WAIVES MEMBER PROTECTION?
5.22(1)
If under regulation 5.21 a member of a fund elects to waive member protection, the member-protection standards cease to apply to the member:
(a)
if the waiver takes place before 1 October 1995 - from 1 July 1995; or
(b)
in any other case - from the date of the waiver.
Note:
See subregulation 5.17(5) in regard to the end of the last relevant member reporting period in this case.
History
Reg 5.22(1) substituted by SR No 200 of 2002, reg 4 and Sch 2 item 9, effective 29 August 2002. Reg 5.22(1) formerly read:
5.22(1)
If under regulation 5.21 a member of a fund elects to waive member protection, the member-protection standards have only lost-member operation in relation to the member:
(a)
if the waiver takes place before 1 October 1995 - from 1 July 1995; or
(b)
in any other case - from the date of the waiver.
Note:
See subregulation 5.17(5A) in regard to the end of the last relevant member reporting period in this case.
5.22(2)
If under regulation 5.21 a member of a fund elects to waive member protection, the waiver ceases to have effect when the member ceases to be a member of the fund.
History
Reg 5.22 inserted by SR No 159 of 1995.
REGULATION 5.23 WHAT HAPPENS IF THE MEMBER ELECTS TO HAVE BENEFITS PAID OUT OF THE FUND?
5.23
If a member of a fund elects to have his or her benefits paid out of the fund under this Division, and the payment takes place before 1 October 1995, the member-protection standards are taken never to have applied in relation to the member's membership of the fund.
History
Reg 5.23 inserted by SR No 159 of 1995.
REGULATION 5.24 WHAT HAPPENS IF THE TRUSTEE PAYS BENEFITS PAID OUT OF THE FUND?
5.24
If:
(a)
the trustee of a fund has written to a member offering the right to elect under regulation 5.21; and
(b)
the member does not elect to waive member protection; and
(c)
the trustee pays benefits of the member out of the fund;
the trustee must not charge an exit fee in respect of the payment.
History
Reg 5.24 inserted by SR No 159 of 1995.
Div 5.6 inserted by SR No 159 of 1995.
PART 6 - PAYMENT STANDARDS
Division 6.1 - Introductory
Subdivision 6.1.1 - General interpretation
REGULATION 6.01
INTERPRETATION
6.01(1)
Subject to subregulation (2), expressions used in this Part that are defined for the purposes of Part 5 have the same meanings respectively as in that Part.
6.01(2)
In this Part and in Schedule 1, unless the contrary intention appears:
cashing restriction
, in relation to a condition of release, means a cashing restriction specified in column 3 of the item in Schedule 1 that mentions the condition of release.
History
Definition of "cashing restriction" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 27, effective 1 July 2007.
changeover day
, in relation to a type B member of a fund, means the changeover day that was fixed for the class of members of the fund in which the member is included.
History
Definition of "changeover day" substituted by SR No 175 of 1998, SR No 344 of 1996 and SR No 57 of 1996.
commencement day
means:
(a)
in relation to a regulated superannuation fund, the later of:
(i)
the first day of the 1994-95 year of income of the fund; or
(ii)
the day on which the trustee or trustees of the fund make an election under section 19 of the Act; and
(b)
in relation to an approved deposit fund:
(i)
if the first day of the 1994-95 year of income of the fund is on or after 1 July 1994 - the first day of that year of income; or
(ii)
if the first day of that year of income is before 1 July 1994 - the earlier of:
(A)
1 July 1994; or
(B)
the day on which the fund became an approved deposit fund.
Commonwealth income support payment
means:
(a)
an income support supplement, service pension or social security pension as defined in subsection 23(1) of the Social Security Act 1991; or
(b)
a social security benefit as defined in that subsection, other than:
(i)
an austudy payment; or
(ii)
a youth allowance paid to a person who is undertaking full-time study; or
(c)
a drought relief payment under the Farm Household Support Act 1992 as in force immediately before the commencement of the Farm Household Support Amendment (Restart and Exceptional Circumstances) Act 1997; or
(d)
an exceptional circumstances relief payment under the Farm Household Support Act 1992; or
(e)
(Repealed by FRLI No F2024L00473)
(f)
a payment of income support for the purposes of the Farm Family Support Scheme.
History
Definition of "Commonwealth income support payment" amended by FRLI No F2024L00473, reg 4 and Sch 1 item 5, by repealing para (e), effective 1 July 2024. For application provision, see note under reg 14.37. Para (e) formerly read:
(e)
a payment of salary or wages made under the employment scheme of the Commonwealth that is known as the Community Development Employment Projects Scheme; or
Definition of "Commonwealth income support payment" amended by SLI No 187 of 2010, reg 3 and Sch 1 items 1 and 2, by substituting "Scheme; or" for "Scheme." in para (e) and inserting para (f), effective 1 July 2010.
Definition of "Commonwealth income support payment" substituted by SR No 177 of 1998, amended by SR No 177 of 1998 and inserted by SR No 152 of 1997.
compassionate ground
, in relation to the release of a member's preserved benefits, or restricted non-preserved benefits, in a superannuation entity, means:
(a)
a ground listed in subregulation 6.19A(1); or
(b)
the ground referred to in subregulation 6.19B(1).
History
Definition of "compassionate ground" substituted by No 22 of 2020, s 3 and Sch 13 item 8, effective 25 March 2020. The definition formerly read:
compassionate ground
, in relation to the release of a member's preserved benefits, or restricted non-preserved benefits, in a superannuation entity, means a ground listed in subregulation 6.19A(1).
Definition of "compassionate ground" inserted by SR No 152 of 1997.
condition of release
means a condition of release specified in Column 2 of Schedule 1 and, subject to regulation 6.01B, a member of a fund is taken to have satisfied a condition of release if the event specified in that condition has occurred in relation to the member.
History
Definition of "condition of release" amended by SLI No 282 of 2008, reg 4 and Sch 2 item 1, by substituting "and, subject to regulation 6.01B," for ", and", effective 1 April 2009.
eligible temporary resident visa
(Repealed by SLI No 282 of 2008)
History
Definition of "eligible temporary resident visa" repealed by SLI No 282 of 2008, reg 5 and Sch 3 item 1, effective 1 July 2009. The definition formerly read:
"eligible temporary resident visa"
means a visa:
(a)
of one of the subclasses mentioned in Part 1 of Schedule 1AB, within the meaning of Part 2 of Schedule 1 to the Migration Regulations 1994; or
(b)
that is a special purpose visa mentioned in Part 2 of Schedule 1AB, declared under subparagraph 33(2)(b)(ii) of the Migration Act 1958;
that is held by a person who is not a New Zealand citizen.
Note:
Some of the visas mentioned in Schedule 1AB no longer exist. However, they remain relevant for regulations 6.20A, 6.20B and 6.24A.
Definition of "eligible temporary resident visa" substituted by SLI No 334 of 2005, reg 3 and Sch 1 item 1, effective 21 December 2005. The definition formerly read:
eligible temporary resident visa
means a visa:
(a)
of one of the subclasses mentioned in Schedule 1AB, within the meaning of Part 2 of Schedule 1 to the Migration Regulations 1994; and
(b)
that is held by a person who is not a New Zealand citizen.
Note:
Some of the subclasses of visa mentioned in Schedule 1AB no longer exist. However, the subclasses remain relevant for regulations 6.20A, 6.20B and 6.24A.
Definition of "eligible temporary resident visa" substituted by SR No 42 of 2003, reg 3 and Sch 1 item 1, effective 27 March 2003. The definition formerly read:
eligible temporary resident visa
means a visa of one of the subclasses mentioned in Schedule 1AB, within the meaning of Part 2 of Schedule 1 to the Migration Regulations 1994.
Note:
Some of the subclasses of visa mentioned in Schedule 1AB no longer exist. However, the subclasses remain relevant for regulations 6.20A, 6.20B and 6.24A.
Definition of "eligible temporary resident visa" amended by SR No 200 of 2002, reg 4 and Sch 2 items 10 and 11, by substituting "Schedule 1AB," for "Schedule 1A," and substituting "Schedule 1AB" for "Schedule 1A" in the note, effective 29 August 2002.
Definition of "eligible temporary resident visa" inserted by SR No 91 of 2002, reg 3 and Sch 1 item 1, effective 1 July 2002.
financial hardship
(Omitted by SR No 189 of 1994)
indexed
, in relation to a benefit, means indexed in accordance with section 159SG of the Tax Act (as in force before 1 July 2007), modified so that subsection (1) reads as follows:
'(1)
The benefit as indexed for each year of income is:
(a)
in relation to the year of income in which occurs the day on which a benefit was required to have been calculated or was received by the fund - the amount of the benefit that was calculated or received; or
(b)
in relation to a later year of income - the amount calculated by multiplying the benefit for the immediately preceding year of income by the indexation factor worked out in accordance with subsection (2) for the later year of income.'
History
Definition of "indexed" amended by SLI No 74 of 2007, reg 5 and Sch 3 item 28, by inserting "(as in force before 1 July 2007)," after "section 159SG of the Tax Act", effective 1 July 2007.
lump sum
, in this Part but not in Schedule 1, includes an asset.
History
Definition of "lump sum" inserted by SR No 189 of 1994.
non-commutable allocated annuity
has the meaning given by regulation 6.01AA.
History
Definition of"non-commutable allocated annuity" substituted by SLI No 278 of 2013, reg 4 and Sch 1 item 24, effective 17 December 2013. The definition formerly read:
non-commutable allocated annuity
means an annuity provided under a contract that:
(a)
meets the standards of subregulation 1.05(4); and
(b)
ensures that payments of benefits are made only in accordance with the rules set out in regulations 6.16, 6.18, 6.19 and 6.22A, as if:
(i)
the annuity were a regulated superannuation fund; and
(ii)
the annuitant were a member of the fund; and
(iii)
the annuity provider were a trustee of the fund; and
(c)
ensures that, if the annuity is commuted, the resulting superannuation lump sum cannot be cashed unless:
(i)
the purpose of the commutation is:
(A)
to cash an unrestricted non-preserved benefit; or
(B)
to pay a superannuation contributions surcharge; or
(C)
to give effect to an entitlement of a non-member spouse under a payment split; or
(D)
to ensure that a payment may be made for the purpose of giving effect to a release authority under:
(I)
section 292-415 of the Income Tax Assessment Act 1997; or
(II)
section 292-80C of the Income Tax (Transitional Provisions) Act 1997; or
(ii)
before commutation, the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; or
(iii)
the purpose of the commutation is to satisfy an obligation to pay an amount to the Commissioner of Taxation under subsection 20F(1) of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
Definition of "non-commutable allocated annuity" amended by SLI No 15 of 2009, reg 3 and Sch 1 item 1, by substituting "Nil; or" for "nil; or" in para (c)(ii), effective 7 February 2009.
Definition of "non-commutable allocated annuity" amended by SLI No 282 of 2008, reg 3 and Sch 1 item 18-19, by substituting "nil; or" for "'Nil'." in para (c)(ii) and inserting para (c)(iii) after (ii), effective 18 December 2008.
Definition of "non-commutable allocated annuity" amended by SLI No 74 of 2007, reg 5 and Sch 3 item 29, by substituting "superannuation lump sum" for "eligible termination payment" in para (c), effective 1 July 2007.
Definition of "non-commutable allocated annuity" amended by SLI No 74 of 2007, reg 3 and Sch 1 item 13, by inserting para (c)(i)(D), effective 3 April 2007.
Definition of "non-commutable allocated annuity" inserted by SLI No 56 of 2005, reg 3 and Sch 1 item 1, effective 1 July 2005.
non-commutable allocated pension
has the meaning given by regulation 6.01AB.
History
Definition of "non-commutable allocated pension" substituted by SLI No 278 of 2013, reg 4 and Sch 1 item 25, effective 17 December 2013. The definition formerly read:
non-commutable allocated pension
means a pension provided under rules of a superannuation fund that:
(a)
meet the standards of subregulation 1.06(4); and
(b)
ensure that, if the pension is commuted, the resulting superannuation lump sum cannot be cashed unless:
(i)
the purpose of the commutation is:
(A)
to cash an unrestricted non-preserved benefit; or
(B)
to pay a superannuation contributions surcharge; or
(C)
to give effect to an entitlement of a non-member spouse under a payment split; or
(D)
to ensure that a payment may be made for the purpose of giving effect to a release authority under:
(I)
section 292-415 of the Income Tax Assessment Act 1997; or
(II)
section 292-80C of the Income Tax (Transitional Provisions) Act 1997; or
(ii)
before commutation, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; or
(iii)
the purpose of the commutation is to satisfy an obligation to pay an amount to the Commissioner of Taxation under subsection 20F(1) of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
Definition of "non-commutable allocated pension" amended by SLI No 15 of 2009, reg 3 and Sch 1 item 2, by substituting "Nil; or" for "nil; or" in para (b)(ii), effective 7 February 2009.
Definition of "non-commutable allocated pension" amended by SLI No 282 of 2008, reg 3 and Sch 1 item 20-21, by substituting "nil; or" for "'Nil'." and inserting para (b)(iii) after (ii), effective 18 December 2008.
Definition of "non-commutable allocated pension" amended by SLI No 74 of 2007, reg 5 and Sch 3 item 30, by substituting "superannuation lump sum" for "eligible termination payment" in para (b), effective 1 July 2007.
Definition of "non-commutable allocated pension" amended by SLI No 74 of 2007, reg 3 and Sch 1 item 14, by inserting para (b)(i)(D), effective 3 April 2007.
Definition of "non-commutable allocated pension" inserted by SLI No 56 of 2005, reg 3 and Sch 1 item 1, effective 1 July 2005.
non-commutable annuity
means an annuity provided under a contract that:
(a)
meets the standards of subregulation 1.05(2), (9) or (10); and
(b)
ensures that payments of benefits are made only in accordance with the rules set out in regulations 6.16, 6.18, 6.19 and 6.22A, as if:
(i)
the annuity were a regulated superannuation fund; and
(ii)
the annuitant were a member of the fund; and
(iii)
the annuity provider were a trustee of the fund; and
(c)
ensures that, if the annuity is commuted under subparagraph 1.05(2)(f)(i), (9)(h)(i) or (10)(d)(i), the resulting superannuation lump sum cannot be cashed unless:
(i)
the purpose of the commutation is to cash an unrestricted non-preserved benefit; or
(ii)
before commutation, the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'.
History
Definition of "non-commutable annuity" amended by SLI No 74 of 2007, reg 5 and Sch 3 item 31, by substituting "superannuation lump sum" for "eligible termination payment" in para (c), effective 1 July 2007.
Definition of "non-commutable annuity" inserted by SLI No 56 of 2005, reg 3 and Sch 1 item 1, effective 1 July 2005.
non-commutable income stream
means a benefit that:
(a)
cannot be commuted; and
(b)
is paid at least monthly; and
(c)
does not have a residual capital value; and
(d)
is such that the total amount paid each month is fixed or varies only:
(i)
for the purpose of complying with the Act and these regulations; and
(ii)
during any period of 12 months by a rate not exceeding either:
(A)
5% per annum; or
(B)
the rate of increase in the last Consumer Price Index (All Capital Cities) for a quarter to be published by the Australian Statistician before the end of that period of 12 months compared with the Consumer Price Index (All Capital Cities) published for the same quarter in the preceding year.
non-commutable pension
(Repealed by SLI No 74 of 2007)
History
Definition of "non-commutable pension" repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 32, effective 1 July 2007. The definition formerly read:
non-commutable pension
means a pension provided under rules of a superannuation fund that:
(a)
meet the standards of subregulation 1.06(2), (7) or (8); and
(b)
ensure that, if the pension is commuted under subparagraph 1.06(2)(e)(i), (7)(g)(i) or (8)(d)(i), the resulting eligible termination payment cannot be cashed unless:
(i)
the purpose of the commutation is to cash an unrestricted non-preserved benefit; or
(ii)
before commutation, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is "Nil".
Definition of "non-commutable pension" inserted by SLI No 56 of 2005, reg 3 and Sch 1 item 1, effective 1 July 2005.
non-commutable pension
means a pension provided under rules of a superannuation fund that:
(a)
meet the standards of subregulation 1.06(2), (7) or 1.06(8); and
(b)
ensure that, if the pension is commuted under subparagraph 1.06(2)(e)(i), (7)(g)(i) or (8)(d)(i), the resulting superannuation lump sum cannot be cashed unless:
(i)
the purpose of the commutation is to cash an unrestricted non-preserved benefit; or
(ii)
before commutation, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'.
History
Definition of "non-commutable pension" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 33, effective 1 July 2007.
permanent departure from Australia
(Omitted by SR No 153 of 1997)
permanent incapacity
(Repealed by SLI No 26 of 2013)
History
Definition of "permanent incapacity" repealed by SLI No 26 of 2013, reg 4 and Sch 3 item 3, effective 1 July 2013. The definition formerly read:
permanent incapacity
, in relation to a member, means ill-health (whether physical or mental), where the trustee is reasonably satisfied that the member is unlikely, because of the ill-health, to engage in gainful employment for which the member is reasonably qualified by education, training or experience.
Definition of "permanent incapacity" substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 34, effective 1 July 2007. The definition formerly read:
"permanent incapacity"
, in relation to a member who has ceased to be gainfully employed, means ill-health (whether physical or mental), where the trustee is reasonably satisfied that the member is unlikely, because of the ill-health, ever again to engage in gainful employment for which the member is reasonably qualified by education, training or experience.
permanent resident
means a holder of a permanent visa under the Migration Act 1958 that has not ceased to be in effect.
History
Definition of "permanent resident" inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 22, effective 18 December 2008.
preservation age
means:
(a)
for a person born before 1 July 1960 - 55 years; or
(b)
for a person born during the year 1 July 1960 to 30 June 1961 - 56 years; or
(c)
for a person born during the year 1 July 1961 to 30 June 1962 - 57 years; or
(d)
for a person born during the year 1 July 1962 to 30 June 1963 - 58 years; or
(e)
for a person born during the year 1 July 1963 to 30 June 1964 - 59 years; or
(f)
for a person born after 30 June 1964 - 60 years.
History
Definition of "preservation age" inserted by SR No 175 of 1998.
restricted non-preserved contributions
means undeducted contributions (within the meaning of subregulation (6)) of a member other than contributions that were preserved in satisfaction of requirements of the Tax Act, the OSS Laws the Superannuation Industry (Supervision) (Transitional Provisions) Regulations, the RSA Regulations or these regulations leading to income tax concessions.
History
Definition of "restricted non-preserved contributions" amended by SR No 293 of 1997.
retirement
has the meaning given by subregulation (7).
RSA changeover day
(Omitted by SR No 175 of 1998)
History
Definition of "RSA changeover day" inserted by SR No 117 of 1997.
severe financial hardship
has the meaning given by subregulation (5).
History
Definition of "severe financial hardship" inserted by SR No 189 of 1994.
student visa
has the same meaning as in the Migration Act 1958.
History
Definition of "student visa" inserted by FRLI No F2020L00431, reg 4 and Sch 1 item 5, effective 17 April 2020.
successor fund
(Omitted by SR No 64 of 1995)
temporary incapacity
, in relation to a member who has ceased to be gainfully employed (including a member who has ceased temporarily to receive any gain or reward under a continuing arrangement for the member to be gainfully employed), means ill-health (whether physical or mental) that caused the member to cease to be gainfully employed but does not constitute permanent incapacity.
temporary resident
means a holder of a temporary visa under the Migration Act 1958.
History
Definition of "temporary resident" inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 23, effective 18 December 2008.
terminal medical condition
has the meaning given by regulation 6.01A.
History
Definition of "terminal medical condition" inserted by SLI No 9 of 2008, reg 3 and Sch 1 item 1, effective 16 February 2008.
transitional period,
in relation to a superannuation fund, means the period beginning at the beginning of the fund's 1994-1995 year of income and ending:
(a)
in the case of a public sector superannuation scheme - at the end of the day when the scheme became an exempt public sector superannuation scheme; or
(b)
in any other case - at the end of the day when the trustee of the fund lodges an election under section 19 of the Act.
History
Definition of "transitional period" inserted by SR No 83 of 1998.
transition to retirement income stream
means:
(a)
an annuity provided under a contract that:
(i)
is a contract to which paragraph 1.05(11A)(a) applies and that meets the standards of subregulation 1.05(11A); and
(ii)
allows total payments (excluding payments by way of commutation, but including payments under a payment split) made in a financial year to amount to no more than 10% of the annuity account balance:
(A)
on 1 July in the financial year in which the payment is made; or
(B)
if that year is the year in which the annuity commences - on the commencement day;
unless the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; and
(iii)
complies with paragraphs (b) and (c) of the definition of
non-commutable allocated annuity
in subregulation 6.01AA(1), as if it were such an annuity; or
(b)
a pension provided from a superannuation fund, the rules of which:
(i)
are rules to which paragraph 1.06(9A)(a) applies and that meet the standards of subregulation 1.06(9A); and
(ii)
allow total payments (excluding payments by way of commutation but including payments under a payment split) made in a financial year to amount to no more than 10% of the pension account balance:
(A)
on 1 July in the financial year in which the payment is made; or
(B)
if that year is the year in which the pension commences - on the commencement day;
unless the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; and
(iii)
comply with paragraph (b) of the definition of
non-commutable allocated pension
in subregulation 6.01AB(1), as if it were such a pension.
History
Definition of "transition to retirement income stream" amended by FRLI No F2017L00704, reg 4 and Sch 1 items 21 and 22, by substituting para (a)(i) and (b)(i), applicable in relation to the following:
(a) a benefit arising under a contract entered into on or after 1 July 2017;
(b) a benefit provided under rules made on or after 1 July 2017.
Para (a)(i) and (b)(i) formerly read:
(a)(i)
is a contract:
(A)
to which paragraph 1.05(11A)(a) applies; and
(B)
that meets the standards of subregulation 1.05(11A); and
(b)(i)
are rules:
(A)
to which paragraph 1.06(9A)(a) applies; and
(B)
that meet the standards of subregulation 1.06(9A); and
Definition of "transition to retirement income stream" amended by SLI No 79 of 2015, reg 4 and Sch 1 items 8 and 9, by inserting "in subregulation 6.01AA(1)" in para (a)(iii) and "in subregulation 6.01AB(1)" in para (b)(iii), effective 2 June 2015.
Definition of "transition to retirement income stream" amended by SLI No 9 of 2008, reg 3 and Sch 1 items 2 and 3, by substituting paras (a)(ii) and (b)(ii), effective 16 February 2008. Paras (a)(ii) and (b)(ii) formerly read:
(ii)
allows total payments (including under a payment split) made in a financial year to amount to no more than 10% of the annuity account balance:
(A)
on 1 July in the financial year in which the payment is made; or
(B)
if that year is the year in which the annuity commences - on the commencement day; and"
"(ii)
allow total payments (including under a payment split) made in a financial year to amount to no more than 10% of the pension account balance:
(A)
on 1 July in the financial year in which the payment is made; or
(B)
if that year is the year in which the pension commences - on the commencement day; and
Definition of "transition to retirement income stream" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 35, effective 1 July 2007.
type A member
means a member of a regulated superannuation fund included in a class of members for which no changeover day, fixed under these regulations as in force before 30 June 1998, was reached before 30 June 1998 in relation to that fund.
History
Definition of "type A member" inserted by SR No 175 of 1998.
type B member
means a member of a regulated superannuation fund included in a class of members for which a changeover day, fixed under these regulations as in force before 30 June 1998, was reached before 30 June 1998 in relation to that fund.
History
Definition of "type B member" inserted by SR No 175 of 1998.
6.01(2A)
(Repealed by SR No 175 of 1998)
History
Reg 6.01(2A) substituted by SR No 344 of 1996; inserted by SR No 57 of 1996.
6.01(2B)
(Repealed by SR No 175 of 1998)
History
Reg 6.01(2B) substituted by SR No 344 of 1996; inserted by SR No 57 of 1996.
6.01(2C)
(Omitted by SR No 344 of 1996)
History
Reg 6.01(2C) inserted by SR No 57 of 1996.
6.01(3)
(Repealed by SR No 175 of 1998)
History
Reg 6.01(3) substituted by SR No 57 of 1996.
6.01(3A)
(Repealed by SR No 175 of 1998)
Hide history note
History
Reg 6.01(3A) substituted by SR No 57 of 1996; inserted by SR No 189 of 1994.
6.01(3B)
(Repealed by SR No 175 of 1998)
History
Reg 6.01(3B) amended by SR No 344 of 1996; inserted by SR No 57 of 1996.
6.01(4)
(Repealed by SR No 175 of 1998)
6.01(5)
[Person deemed in financial hardship]
For the purposes of Schedule 1, a person is taken to be in severe financial hardship if:
(a)
the trustee of a superannuation entity is satisfied:
(i)
based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments, that:
(A)
the person has received Commonwealth income support payments for a continuous period of 26 weeks; and
(B)
the person was in receipt of payments of that kind on the date of the written evidence; and
(ii)
that the person is unable to meet reasonable and immediate family living expenses; or
(b)
the person has reached the age that is the person's preservation age plus 39 weeks and the trustee of a superannuation entity is satisfied:
(i)
based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments - that the person received Commonwealth income support payments for a cumulative period of 39 weeks after the person reached the person's preservation age; and
(ii)
that the person was not gainfully employed on a full-time, or part-time, basis on the date of the application for cashing of his or her preserved benefits, or restricted non-preserved benefits, in the entity.
History
Reg 6.01(5) amended by SR No 175 of 1998, SR No 343 of 1997, SR No 152 of 1997 and SR No 189 of 1994.
6.01(5A)
[Date of evidence provided]
The written evidence provided for by paragraph (5)(a) is of no effect if it is dated more than 21 days before the date of the person's application to the trustee for cashing of his or her preserved benefits or restricted non-preserved benefits.
History
Reg 6.01(5A) inserted by SR No 152 of 1997.
6.01(6)
[Undeducted contributions]
Amounts to the credit of a member (except eligible spouse contributions) in a fund are undeducted contributions if:
(a)
the amounts are undeducted contributions within the meaning that was given, before 1 July 2007, by subsection 27A(1) of the Tax Act; or
(b)
for any other amounts - the amounts comprise member contributions:
(i)
made after 30 June 1983 in order to obtain superannuation benefits (within the meaning of the Tax Act); and
(ii)
in respect of which no deduction is allowable or has been allowed to the member under the former section 82AAT of the Tax Act.
History
Reg 6.01(6) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 36, effective 1 July 2007. Reg 6.01(6) formerly read:
6.01(6)
Amounts to the credit of a member (except eligible spouse contributions) in a fund are undeducted contributions if:
(a)
in relation to amounts which formed the whole or part of an eligible termination payment - those amounts are undeducted contributions within the meaning given by subsection 27A(1) and (7) of the Tax Act for the purposes of Subdivision AA of Division 2 of Part III of that Act; or
(b)
in relation to any other amounts - those amounts comprise:
(i)
member contributions made after 30 June 1983 in order to obtain superannuation benefits (within the meaning of the Tax Act); and
(ii)
in respect of which no deduction is allowable or has been allowed to the member under the Tax Act.
Reg 6.01(6) amended by SR No 175 of 1998, SR No 293 of 1997 and SR No 117 of 1997.
6.01(7)
[Retirement of person]
For the purposes of Schedule 1, the retirement of a person is taken to occur:
(a)
in the case of a person who has reached a preservation age that is less than 60 - if:
(i)
an arrangement under which the member was gainfully employed has come to an end; and
(ii)
the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full-time or a part-time basis; or
(b)
in the case of a person who has attained the age of 60 - an arrangement under which the member was gainfully employed has come to an end, and either of the following circumstances apply:
(i)
the person attained that age on or before the ending of the employment; or
(ii)
the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full-time or a part-time basis.
History
Reg 6.01(7) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 37, by substituting para (b), effective 1 July 2007. Para (b) formerly read:
(b)
in the case of a person who has attained age 60 - an arrangement under which the member was gainfully employed has come to an end on or after the member attained that age.
Reg 6.01(7) amended by SR No 175 of 1998.
6.01(8)
[Interpretation]
A reference in this Part to
preserved benefits
,
restricted non-preserved benefits
,
restricted non-preserved contributions
,
unrestricted non-preserved benefits
and
post-65 employer-financed benefits
includes benefits, or contributions (as the case may be), rolled over, or transferred, from an RSA.
History
Reg 6.01(8) inserted by SR No 117 of 1997.
REGULATION 6.01AA
MEANING OF
NON-COMMUTABLE ALLOCATED ANNUITY
6.01AA(1)
In this Part and Schedule 1,
non-commutable allocated annuity
means an annuity provided under a contract that:
(a)
meets the standards of subregulation 1.05(4); and
(b)
ensures that payments of benefits are made only in accordance with the rules set out in regulations 6.16, 6.18, 6.19 and 6.22A, as if:
(i)
the annuity were a regulated superannuation fund; and
(ii)
the annuitant were a member of the fund; and
(iii)
the annuity provider were a trustee of the fund; and
(c)
ensures that, if the annuity is commuted, the resulting superannuation lump sum cannot be cashed unless:
(i)
the purpose of the commutation is mentioned in subregulation (2); or
(ii)
before commutation, the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is "Nil"; or
(iii)
the purpose of the commutation is to satisfy an obligation to pay an amount to the Commissioner of Taxation under subsection 20F(1) of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 6.01AA(1) amended by SLI No 79 of 2015, reg 4 and Sch 1 item 10, by substituting "Schedule 1" for "Schedule 2" in the definition of "non-commutable allocated annuity", effective 2 June 2015.
6.01AA(2)
For subparagraph (1)(c)(i), the purpose is any of the following:
(a)
to cash an unrestricted non-preserved benefit;
(b)
to pay a superannuation contributions surcharge;
(c)
to give effect to an entitlement of a non-member spouse under a payment split;
(d)
to ensure that a payment may be made under Division 131 or 135 in Schedule 1 to the Taxation Administration Act 1953, or section 292-80C of the Income Tax (Transitional Provisions) Act 1997, for the purpose of giving effect to a release authority.
History
Reg 6.01AA(2) amended by FRLI No F2017L00321, reg 4 and Sch 8 item 14, by substituting para (d), applicable in relation to release authorities given to superannuation providers on or after 1 July 2018. Para (d) formerly read:
(d)
to ensure that a payment may be made for the purpose of giving effect to a release authority under any of the following:
(i)
section 292-415 of the 1997 Tax Act;
(ii)
section 292-80C of the Income Tax (Transitional Provisions) Act 1997;
(iii)
sections 96-20 and 96-25 in Schedule 1 to the Taxation Administration Act 1953;
(iv)
section 135-75 in Schedule 1 to the Taxation Administration Act 1953.
History
Reg 6.01AA inserted by No 278 of 2013, reg 4 and Sch 1 item 26, effective 17 December 2013.
REGULATION 6.01AB
MEANING OF
NON-COMMUTABLE ALLOCATED PENSION
6.01AB(1)
In this Part and Schedule 1,
non-commutable allocated pension
means a pension provided under rules of a superannuation fund that:
(a)
meet the standards of subregulation 1.06(4); and
(b)
ensure that, if the pension is commuted, the resulting superannuation lump sum cannot be cashed unless:
(i)
the purpose of the commutation is mentioned in subregulation (2); or
(ii)
before commutation, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is "Nil"; or
(iii)
the purpose of the commutation is to satisfy an obligation to pay an amount to the Commissioner of Taxation under subsection 20F(1) of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 6.01AB(1) amended by SLI No 79 of 2015, reg 4 and Sch 1 item 11, by substituting "Schedule 1" for "Schedule 2" in the definition of "non-commutable allocated pension", effective 2 June 2015.
6.01AB(2)
For subparagraph (1)(b)(i), the purpose is any of the following:
(a)
to cash an unrestricted non-preserved benefit;
(b)
to pay a superannuation contributions surcharge;
(c)
to give effect to an entitlement of a non-member spouse under a payment split;
(d)
to ensure that a payment may be made under Division 131 or 135 in Schedule 1 to the Taxation Administration Act 1953, or section 292-80C of the Income Tax (Transitional Provisions) Act 1997, for the purpose of giving effect to a release authority.
History
Reg 6.01AB(2) amended by FRLI No F2017L00321, reg 4 and Sch 8 item 15, by substituting para (d), applicable in relation to release authorities given to superannuation providers on or after 1 July 2018. Para (d) formerly read:
(d)
to ensure that a payment may be made for the purpose of giving effect to a release authority under any of the following:
(i)
section 292-415 of the 1997 Tax Act;
(ii)
section 292-80C of the Income Tax (Transitional Provisions) Act 1997;
(iii)
sections 96-20 and 96-25 in Schedule 1 to the Taxation Administration Act 1953;
(iv)
section 135-75 in Schedule 1 to the Taxation Administration Act 1953.
History
Reg 6.01AB inserted by SLI No 278 of 2013, reg 4 and Sch 1 item 26, effective 17 December 2013.
REGULATION 6.01A
6.01A
MEANING OF
TERMINAL MEDICAL CONDITION
For Schedule 1, a
terminal medical condition
exists in relation to a person at a particular time if the following circumstances exist:
(a)
two registered medical practitioners have certified, jointly or separately, that the person suffers from an illness, or has incurred an injury, that is likely to result in the death of the person within a period (the
certification period
) that ends not more than 24 months after the date of the certification;
(b)
at least one of the registered medical practitioners is a specialist practicing in an area related to the illness or injury suffered by the person;
(c)
either:
(i)
if there is one certification period - the certification period has not ended; or
(ii)
otherwise - neither of the certification periods has ended.
History
Reg 6.01A amended by FRLI No F2021L00199, reg 4 and Sch 1 item 4, by substituting para (c), effective 1 April 2021. Reg 6.01A formerly read:
(c)
for each of the certificates, the certification period has not ended.
Reg 6.01A amended by SLI No 110 of 2015, reg 4 and Sch 1 item 3, by substituting "24 months" for "12 months" in para (a), effective 1 July 2015.
Reg 6.01A inserted by SLI No 9 of 2008, reg 3 and Sch 1 item 4, effective 16 February 2008.
REGULATION 6.01B
CONDITIONS OF RELEASE FOR TEMPORARY RESIDENTS
6.01B(1)
This regulation applies to a member who is or was a temporary resident.
6.01B(2)
This regulation does not apply to a member who:
(a)
is an Australian citizen, a New Zealand citizen or a permanent resident; or
(b)
is, at any time, the holder of a Subclass 405 (Investor Retirement) visa or a Subclass 410 (Retirement) visa described in Schedule 2 to the Migration Regulations 1994.
6.01B(3)
The only conditions of release that can be satisfied in respect of a member to whom this regulation applies are:
(a)
a condition of release that was satisfied by the member before 1 April 2009; and
(b)
the conditions of release in items 102, 102A, 103, 103A, 103B, 107A, 109, 111A, 111B, 113A, 202, 202A, 203, 204, 204A, 207AA, 208A and 208B of Schedule 1.
History
Reg 6.01B(3) amended by FRLI No F2020L00431, reg 4 and Sch 1 items 6 and 7, by inserting "107A," and "207AA," in para (b), effective 17 April 2020.
Reg 6.01B(3) amended by FRLI No F2017L00321, reg 4 and Sch 8 items 16 and 17, by omitting "111C, 112, 112A," from para (b) and substituting "208A and 208B" for "208A, 208B, 208C, 209 and 209A" in para (b), applicable in relation to release authorities given to superannuation providers on or after 1 July 2018.
Reg 6.01B(3) amended by SLI No 79 of 2015, reg 4 and Sch 1 items 12 and 13, by inserting "111A, 111B, 111C," and substituting "208A, 208B, 208C, 209 and 209A" for "209, 209A and 212" in para (b), effective 17 December 2013.
Reg 6.01B(3) amended by SLI No 278 of 2013, reg 4 and Sch 1 item 27, by substituting "113A, 202, 202A, 203, 204, 204A, 209, 209A and 212" for "202, 202A, 203, 204, 204A, 209 and 209A" in para (b), effective 17 December 2013.
Reg 6.01B(3) amended by SLI No 203 of 2012, reg 3 and Sch 1 item 1, by substituting para (b), effective 21 August 2012. Para (b) formerly read:
(b)
the conditions of release in items 102, 102A, 103, 103A, 103B, 109, 112, 202, 202A, 203, 204, 204A and 209 of Schedule 1.
Reg 6.01B(3) substituted by SLI No 15 of 2009, reg 4 and Sch 2 item 1, effective 1 April 2009. Reg 6.01B(3) formerly read:
6.01B(3)
The only conditions of release that can apply to the member are:
(a)
a condition of release that was satisfied by the member before 1 April 2009; and
(b)
the conditions of release in items 102, 102A, 103, 103A, 103B, 109, 202, 202A, 203, 204 and 204A of Schedule 1.
Reg 6.01B inserted by SLI No 282 of 2008, reg 4 and Sch 2 item 2, effective 1 April 2009.
Subdivision 6.1.2 - Preserved benefits
REGULATION 6.02
PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS - BEFORE 1 JULY 1999
6.02(1)
Type A members before 1 July 1999; type B members before changeover day.
Subject to regulations 6.06 and 6.12 and to Subdivision 6.1.5, the amount of preserved benefits in a regulated superannuation fund:
(a)
for a type A member at any time during the period commencing on the commencement day and ending immediately before 1 July 1999; or
(b)
for a type B member at any time during the period commencing on the commencement day and ending immediately before the changeover day;
is the amount required to be preserved under the OSS laws as applied in accordance with subregulation (2).
6.02(2)
[Operation of OSS laws]
For subregulation (1), despite the repeal of sections of the Occupational Superannuation Standards Act 1987 by the Occupational Superannuation Standards Amendment Act 1993, the OSS laws are taken to have continued in force, subject to the modifications set out in Schedule 2, in relation to regulated superannuation funds as if the references in the OSS laws (as so modified) to superannuation funds were references to regulated superannuation funds within the meaning of these regulations.
6.02(3)
Type B members on and after changeover day.
Subject to regulation 6.12 and to Subdivision 6.1.5, the amount of a type B member's preserved benefits in a regulated superannuation fund at any time on or after the changeover day and before 1 July 1999 is the amount of the member's total benefits in the fund less the sum of:
(a)
the amount of the member's restricted non-preserved benefits in the fund as defined by regulation 6.07; and
(b)
the amount of the member's unrestricted non-preserved benefits in the fund as defined by regulation 6.10.
History
Reg 6.02 substituted by SR No 175 of 1998.
REGULATION 6.03
6.03
PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS - ON AND AFTER 1 JULY 1999
Subject to regulation 6.12 and to Subdivision 6.1.5, the amount of a member's preserved benefits in a regulated superannuation fund at any time on or after 1 July 1999 is the amount of the member's total benefits in the fund less the sum of:
(a)
the amount of the member's restricted non-preserved benefits in the fund as defined by regulation 6.08; and
(b)
the amount of the member's unrestricted non-preserved benefits in the fund as defined by regulation 6.10.
History
Reg 6.03 amended by SR No 175 of 1998.
6.04
(Repealed) REGULATION 6.04 PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS - ROLLOVER OR TRANSFER BETWEEN FUNDS DURING 1996, 1997 OR 1998
(Repealed by SR No 175 of 1998)
6.04A
(Repealed) REGULATION 6.04A PRESERVED BENEFITS IN RSAs - ROLLOVER OR TRANSFER TO REGULATED SUPERANNUATION FUNDS DURING 1998
(Repealed by SR No 175 of 1998)
History
Reg 6.04A inserted by SR No 117 of 1997.
REGULATION 6.05
6.05
PRESERVED BENEFITS IN APPROVED DEPOSIT FUNDS
The amount of a member's preserved benefits in an approved deposit fund on or after the commencement day is the amount of the member's total benefits in the fund less the amount of the member's unrestricted non-preserved benefits in the fund as defined by regulation 6.11.
REGULATION 6.06
6.06
EFFECT OF ROLLOVER OR TRANSFER ON PRESERVED BENEFITS
Subject to regulation 6.12 and to Subdivision 6.1.5, a member's benefits in a regulated superannuation fund or an approved deposit fund (
the transferee fund
) that were preserved benefits in the source from which they were received continue to be preserved benefits in the transferee fund.
History
Reg 6.06 amended by SR No 175 of 1998 and SR No 189 of 1994.
Subdivision 6.1.3 - Restricted non-preserved benefits
Note: Approved deposit funds do not have restricted non-preserved benefits.
REGULATION 6.07
RESTRICTED NON-PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS - BEFORE 1 JULY 1999
6.07(1)
Type A members before 1 July 1999; type B members before changeover day.
Subject to regulations 6.09 and 6.12 and to Subdivision 6.1.5, the amount of restricted non-preserved benefits in a regulated superannuation fund:
(a)
for a type A member at any time during the period commencing on the commencement day and ending immediately before 1 July 1999; or
(b)
for a type B member at any time during the period commencing on the commencement day and ending immediately before the changeover day;
is the amount of the member's total benefits in the fund, less the sum of:
(c)
the amount of the member's preserved benefits in the fund as defined by regulation 6.02; and
(d)
the amount of the member's unrestricted non-preserved benefits in the fund as defined by regulation 6.10.
6.07(2)
Type B members on and after changeover day.
Subject to regulation 6.12 and to Subdivision 6.1.5, the amount of a type B member's restricted non-preserved benefits in a regulated superannuation fund at any time on or after the changeover day and before 1 July 1999 is the greatest of the following amounts:
(a)
the total of:
(i)
the indexed amount of the member's restricted non-preserved benefits (as defined by subregulation (1)) in the fund that would be payable to the member on the changeover day if the member resigned from employment on that day; and
(ii)
the indexed amount of the member's restricted non-preserved benefits received by the fund from another regulated superannuation fund, an RSA or an EPSSS on or after the changeover day that are subject to indexation in the fund;
(b)
the total of:
(i)
the indexed amount of the member's restricted non-preserved benefits (as defined by subregulation (1)) in the fund on the changeover day that would be payable to the member if the member were retrenched from employment that day; and
(ii)
the indexed amount of the member's restricted non-preserved benefits received by the fund from another regulated superannuation fund, an RSA or an EPSSS on or after the changeover day that are subject to indexation in that other fund, RSA or EPSSS;
(c)
the amount of the member's restricted non-preserved contributions in the fund.
History
Reg 6.07(2) amended by SR No 14 of 1999.
6.07(3)
[Benefits to be indexed]
Subject to regulation 6.12 and to Subdivision 6.1.5, a type B member's benefits in a regulated superannuation fund (the
transferee fund
) that:
(a)
were rolled over or transferred from another regulated superannuation fund, an RSA or an EPSSS; and
(b)
were indexed amounts of restricted non-preserved benefits in that other fund, RSA or EPSSS;
continue to be subject to indexation in the transferee fund.
History
Reg 6.07(3) amended by SR No 14 of 1999.
6.07(4)
[Benefits to be restricted non-preserved contributions]
Subject to regulation 6.12 and to Subdivision 6.1.5, a type B member's benefits in a regulated superannuation fund (the
transferee fund
) that:
(a)
were rolled over or transferred from another regulated superannuation fund, an RSA or an EPSSS; and
(b)
were restricted non-preserved contributions in that other fund, RSA or EPSSS;
continue to be restricted non-preserved contributions in the transferee fund.
History
Reg 6.07(4) amended by SR No 14 of 1999.
6.07(5)
[Indexation]
The references in this regulation to indexation apply subject to regulation 6.14.
History
Reg 6.07 substituted by SR No 175 of 1998 and amended by SR No 117 of 1997.
REGULATION 6.08
RESTRICTED NON-PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS - ON AND AFTER 1 JULY 1999
6.08(1)
[Amount of restricted non-preserved benefits]
Subject to regulations 6.09 and 6.12 and to Subdivision 6.1.5, the amount of a member's restricted non-preserved benefits in a regulated superannuation fund at any time on or after 1 July 1999 is the sum of the following amounts:
(a)
either:
(i)
for a type A member who is a defined benefit member and for whom the trustee of the regulated superannuation fund chooses to apply this subparagraph - the greater of the amounts of restricted non-preserved benefits in the fund, worked out under subregulation 6.07(1), that would be payable to the member on 1 July 1999 if, on 1 July 1999, the member:
(A)
resigned from employment; or
(B)
was retrenched from employment; or
(ii)
for a member to whom subparagraph (i) does not apply - the member's restricted non-preserved benefits in the fund on 30 June 1999, worked out under regulation 6.07; and
(b)
the member's restricted non-preserved benefits received by the fund from another regulated superannuation fund, an RSA or an EPSSS on and after 1 July 1999.
History
Reg 6.08(1) amended by SR No 14 of 1999.
6.08(2)
[Benefits to be preserved benefits]
However, if:
(a)
on or after 1 July 1999, a deduction is allowed for the member under the former section 82AAT of the Income Tax Assessment Act 1936 for a member contribution made before 1 July 1999; and
(b)
the benefits arising from the contribution were previously allocated to restricted non-preserved benefits;
the benefits are taken to be preserved benefits.
History
Reg 6.08(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 38, by substituting "the former section 82AAT" for "section 82AAT" in para (a), effective 1 July 2007.
Reg 6.08 substituted by SR No 175 of 1998.
REGULATION 6.09
6.09
EFFECT OF ROLLOVER OR TRANSFER ON RESTRICTED NON-PRESERVED BENEFITS
Subject to regulation 6.12 and to Subdivision 6.1.5, a member's benefits in a regulated superannuation fund that were restricted non-preserved benefits in the source from which they were received continue to be restricted non-preserved benefits.
History
Reg 6.09 substituted by SR No 175 of 1998.
6.09A
(Repealed) REGULATION 6.09A RESTRICTED NON-PRESERVED BENEFITS IN RSAs - ROLLOVER OR TRANSFER TO REGULATED SUPERANNUATION FUNDS DURING 1998
(Repealed by SR No 175 of 1998)
History
Reg 6.09A inserted by SR No 117 of 1997.
Subdivision 6.1.4 - Unrestricted non-preserved benefits
REGULATION 6.10
UNRESTRICTED NON-PRESERVED BENEFITS - REGULATED SUPERANNUATION FUNDS
6.10(1)
[Amount of unrestricted non-preserved benefits]
Subject to Subdivision 6.1.5, the amount of a member's unrestricted non-preserved benefits in a regulated superannuation fund is the sum of:
(a)
the amount of benefits of the member that have become unrestricted non-preserved benefits in the fund in accordance with regulation 6.12; and
(b)
the amounts specified in subregulation (2) that the fund receives in respect of the member on or after the commencement day, and that were received by the regulated superannuation fund before 1 July 2004; and
(c)
the amount of unrestricted non-preserved benefits received by the fund in respect of the member on or after the commencement day; and
(d)
the amount of any investment earnings for the period before 1 July 1999 on the amounts mentioned in paragraphs (a), (b) and (c).
History
Reg 6.10(1) amended by SR No 148 of 2004, reg 3 and Sch 1 item 2, by substituting ``commencement day, and that were received by the regulated superannuation fund before 1 July 2004;'' for ``commencement day;'' in para (b), effective 1 July 2004.
Reg 6.10(1) amended by SR No 175 of 1998 and SR No 189 of 1994.
6.10(2)
[Amounts specified under subreg (1)(b)]
The amounts mentioned in paragraph (1)(b) are amounts (other than an amount that is a capital gains tax exempt component) that:
(a)
will be taken by section 27D of the Tax Act, as in force before 1 July 2007, to have been expended out of eligible termination payments within the meaning of that section; and
(b)
have been received from sources other than:
(i)
superannuation funds; or
(ii)
approved deposit funds within the meaning of:
(A)the Act; or
(B)
the Occupational Superannuation Standards Act 1987 as in force immediately before the commencement of section 5 of the Occupational Superannuation Standards Amendment Act 1993; or
(iii)
deferred annuities within the meaning of:
(A)
this Part; or
(B)
the Occupational Superannuation Standards Regulations; or
(iv)
RSAs.
History
Reg 6.10(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 39, by inserting ", as in force before 1 July 2007," after "section 27D of the Tax Act" in para (a), effective 1 July 2007.
Reg 6.10(2) amended by SR No 293 of 1997 and SR No 117 of 1997 and inserted by SR No 189 of 1994.
6.10(3)
[Benefits to be preserved benefits]
However, if:
(a)
on or after 1 July 1999, a deduction is allowed for the member under the former section 82AAT of the Income Tax Assessment Act 1936 for a member contribution made before 1 July 1999; and
(b)
the benefits arising from the contribution were previously allocated to restricted non-preserved benefits that became unrestricted non-preserved benefits under subregulation 6.12(2);
the benefits are taken to be preserved benefits.
History
Reg 6.10(3) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 40, by substituting "the former section 82AAT" for "section 82AAT" in para (a), effective 1 July 2007.
Reg 6.10(3) inserted by SR No 175 of 1998.
REGULATION 6.11
UNRESTRICTED NON-PRESERVED BENEFITS - APPROVED DEPOSIT FUNDS
6.11(1)
[Amount of unrestricted non-preserved benefits]
Subject to Subdivision 6.1.5, the amount of a member's unrestricted non-preserved benefits in an approved deposit fund is the sum of:
(a)
the amount of the member's benefits in the fund at the end of the day immediately before the commencement day less the amount of the member's benefits in the fund that were required to be preserved by regulation 21 of the Occupational Superannuation Standards Regulations; and
(b)
the amount of benefits of the member that have become unrestricted non-preserved benefits in the fund in accordance with regulation 6.12; and
(c)
the amounts specified in subregulation (2) that the fund receives in respect of the member on or after the commencement day, and that were received by the approved deposit fund before 1 July 2004; and
(d)
the amount of unrestricted non-preserved benefits received by the fund in respect of the member on or after the commencement day; and
(e)
the amount of any investment earnings for the period before 1 July 1999 on the amounts mentioned in paragraphs (a), (b), (c) and (d).
History
Reg 6.11(1) amended by SR No 148 of 2004, reg 3 and Sch 1 item 3, by substituting ``commencement day, and that were received by the approved deposit fund before 1 July 2004;'' for ``commencement day;'' in para (c), effective 1 July 2004.
Reg 6.11(1) amended by SR No 175 of 1998 and SR No 189 of 1994.
6.11(2)
[Amounts specified under subreg (1)(c)]
The amounts mentioned in paragraph (1)(c) are amounts (other than an amount that is a capital gains tax exempt component) that:
(a)
will be taken by section 27D of the Tax Act, as in force before 1 July 2007, to have been expended out of eligible termination payments within the meaning of that section; and
(b)
have been received from sources other than:
(i)
superannuation funds; or
(ii)
approved deposit funds within the meaning of:
(A)
the Act; or
(B)
the Occupational Superannuation Standards Act 1987 as in force immediately before the commencement of section 5 of the Occupational Superannuation Standards Amendment Act 1993; or
(iii)
deferred annuities within the meaning of:
(A)
this Part; or
(B)
the Occupational Superannuation Standards Regulations; or
(iv)
RSAs.
History
Reg 6.11(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 41, by inserting ", as in force before 1 July 2007," after "section 27D of the Tax Act" in para (a), effective 1 July 2007.
Reg 6.11(2) amended by SR No 293 of 1997 and SR No 117 of 1997 and inserted by SR No 189 of 1994.
REGULATION 6.12
MOVEMENT OF BENEFITS BETWEEN CATEGORIES BY SATISFACTION OF CONDITIONS OF RELEASE
6.12(1)
[Preserved benefits becoming unrestricted non-preserved benefits]
If:
(a)
a member of a regulated superannuation fund or an approved deposit fund satisfies a condition of release; and
(b)
the relevant cashing restriction in respect of preserved benefits is 'Nil';
the member's preserved benefits in the fund at that time cease to be preserved benefits and become unrestricted non-preserved benefits.
6.12(2)
[Restricted non-preserved benefits becoming unrestricted non-preserved benefits]
If:
(a)
a member of a regulated superannuation fund satisfies a condition of release; and
(b)
the relevant cashing restriction in respect of restricted non-preserved benefits is 'Nil';
the member's restricted non-preserved benefits in the fund at that time cease to be restricted non-preserved benefits and become unrestricted non-preserved benefits.
6.12(3)
[Application of Subdiv 6.1.5]
This regulation has effect subject to Subdivision 6.1.5.
REGULATION 6.13
6.13
EFFECT OF ROLLOVER OR TRANSFER ON UNRESTRICTED NON-PRESERVED BENEFITS
Subject to Subdivision 6.1.5, a member's benefits in a regulated superannuation fund or an approved deposit fund (
the transferee fund
) that were unrestricted non-preserved benefits in the source from which they were received continue to be unrestricted non-preserved benefits in the transferee fund.
History
Reg 6.13 substituted by SR No 189 of 1994.
Subdivision 6.1.5 - Miscellaneous
REGULATION 6.14
INDEXATION
6.14(1)
[Aggregation of benefits]
Benefits that are referred to in this Division as indexed may be aggregated for the purpose of that indexation.
6.14(2)
[Cessation of regulation]
This regulation has no effect after 30 June 1999.
History
Reg 6.14(2) inserted by SR No 175 of 1998.
REGULATION 6.15
CONTRIBUTIONS AND BENEFITS TAKEN TO BE PRESERVED BENEFITS
6.15(1)
[Contributions, etc]
Contributions made, or benefits rolled over or transferred, to a regulated superannuation fund or an approved deposit fund are taken to be preserved benefits for the purposes of this Division unless and until the trustee is satisfied that they are not preserved benefits.
6.15(2)
[Benefits under Div 6.7]
Benefits rolled over, transferred or allotted under Division 6.7 to an interest in a regulated superannuation fund held by, or created for, a receiving spouse are taken to be preserved benefits for the purposes of this Division.
History
Reg 6.15 substituted by SLI No 334 of 2005, reg 3 and Sch 2 item 8, effective 1 January 2006. Reg 6.15 formerly read:
CONTRIBUTIONS AND BENEFITS TAKEN TO BE PRESERVED BENEFITS
6.15 Contributions made, or benefits rolled over or transferred, to a regulated superannuation fund or an approved deposit fund are taken to be preserved benefits for the purposes of this Division unless and until the trustee is satisfied that they are not preserved benefits.
REGULATION 6.15A
CERTAIN BENEFITS TAKEN TO BE UNRESTRICTED NON-PRESERVED BENEFITS
6.15A(1)
Benefits in a fund are unrestricted non-preserved benefits if:
(a)
during the transitional period of the fund, there arose in relation to the benefits a circumstance that would have resulted in the satisfaction of a condition of release and a 'Nil' cashing restriction if these regulations applied; or
(b)
both:
(i)
the benefits were rolled over or transferred to the fund from:
(A)
a superannuation fund (
Fund A
) during its transitional period; or
(B)
a regulated superannuation fund or an approved deposit fund to which the benefits were rolled over or transferred from a superannuation fund (
Fund B
) during its transitional period; and
(ii)
the trustee is reasonably satisfied that:
(A)
during the transitional period of Fund A or Fund B, there arose in relation to the benefits a circumstance that would have resulted in the satisfaction of a condition of release and a 'Nil' cashing restriction if these regulations applied; or
(B)
before the benefits were rolled over or transferred to Fund A or Fund B from a regulated superannuation fund or an approved deposit fund, the relevant cashing restriction set out in Schedule 1 in respect of the benefits was 'Nil'.
History
Reg 6.15A renumbered as reg 6.15A(1) by SR No 281 of 2000, reg 3 and Sch 1 item 1, effective 1 July 1999.
6.15A(2)
An investment earning in relation to a benefit of any kind is an unrestricted non-preserved benefit on a day if:
(a)
the benefit was cashed, before that day, in the form of a non-commutable life pension; and
(b)
for a benefit that was commenced under the condition of release mentioned in item 110 or 208 of Schedule 1, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; and
(c)
the pension commenced to be paid before that day.
History
Reg 6.15A(2) amended by SLI No 204 of 2007, reg 3 and Sch 1 item 9, by substituting "110" for "109A", effective 1 July 2007.
Reg 6.15A(2) substituted by SLI No 333 of 2005, reg 3 and Sch 1 item 1, effective 21 December 2005. Reg 6.15A(2) formerly read:
6.15A(2)
An investment earning in relation to a benefit of any kind is an unrestricted non-preserved benefit on a day if:
(a)
the benefit was cashed, before that day, in the form of a non-commutable life pension; and
(b)
the pension has commenced to be paid before that day.
Reg 6.15A(2) inserted by SR No 281 of 2000, reg 3 and Sch 1 item 2, effective 1 July 1999.
6.15A(3)
An investment earning in relation to a benefit of any kind is an unrestricted non-preserved benefit on a day if:
(a)
the benefit was cashed, before that day, in the form of a non-commutable life annuity; and
(b)
for a benefit that was commenced under the condition of release mentioned in item 110 or 208 of Schedule 1, the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; and
(c)
the annuity commenced to be paid before that day.
History
Reg 6.15A(3) amended by SLI No 204 of 2007, reg 3 and Sch 1 item 9, by substituting "110" for "109A" in para (b), effective 1 July 2007.
Reg 6.15A(3) substituted by SLI No 333, reg 3 and Sch 1 item 1, effective 21 December 2005. Reg 6.15A(3) formerly read:
6.15A(3)
An investment earning in relation to a benefit of any kind is an unrestricted non-preserved benefit on a day if:
(a)
the benefit was cashed, before that day, in the form of a non-commutable life annuity; and
(b)
the annuity has commenced to be paid before that day.
Reg 6.15A(3) inserted by SR No 281 of 2000, reg 3 and Sch 1 item 2, effective 1 July 1999.
6.15A(4)
An investment earning in relation to a benefit is an unrestricted non-preserved benefit on a day if:
(a)
the benefit is an unrestricted non-preserved benefit; and
(b)
the benefit was cashed, before that day, in the form of a pension; and
(c)
for a benefit that was commenced under the condition of release mentioned in item 110 or 208 of Schedule 1, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; and
(d)
the pension commenced to be paid before that day.
History
Reg 6.15A(4) amended by SLI No 204 of 2007, reg 3 and Sch 1 item 9, by substituting "110" for "109A" in para (c), effective 1 July 2007.
Reg 6.15A(4) substituted by SLI No 333, reg 3 and Sch1 item 1, effective 21 December 2005. Reg 6.15A(4) formerly read:
6.15A(4)
An investment earning in relation to a benefit is an unrestricted non-preserved benefit on a day if:
(a)
the benefit is an unrestricted non-preserved benefit; and
(b)
the benefit was cashed, before that day, in the form of a pension; and
(c)
the pension has commenced to be paid before that day.
Reg 6.15A(4) inserted by SR No 281 of 2000, reg 3 and Sch 1 item 2, effective 1 July 1999.
6.15A(5)
An investment earning in relation to a benefit is an unrestricted non-preserved benefit on a day if:
(a)
the benefit is an unrestricted non-preserved benefit; and
(b)
the benefit was cashed, before that day, in the form of an annuity; and
(c)
for a benefit that was commenced under the condition of release mentioned in item 110 or 208 of Schedule 1, the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is 'Nil'; and
(d)
the annuity commenced to be paid before that day.
History
Reg 6.15A(5) amended by SLI No 204 of 2007, reg 3 and Sch 1 item 9, by substituting "110" for "109A" in para (c), effective 1 July 2007.
Reg 6.15A(5) substituted by SLI No 333, reg 3 and Sch 1 item 1, effective 21 December 2005. Reg 6.15A(5) formerly read:
6.15A(5)
An investment earning in relation to a benefit is an unrestricted non-preserved benefit on a day if:
(a)
the benefit is an unrestricted non-preserved benefit; and
(b)
the benefit was cashed, before that day, in the form of an annuity; and
(c)
the annuity has commenced to be paid before that day.
Reg 6.15A(5) inserted by SR No 281 of 2000, reg 3 and Sch 1 item 2, effective 1 July 1999.
History
Reg 6.15A inserted by SR No 83 of 1998.
REGULATION 6.16
REDISTRIBUTION OF MEMBER BENEFITS WITHIN A FUND IN CERTAIN CIRCUMSTANCES BY OPERATION OF GOVERNING RULES OR ACTION OF TRUSTEE
6.16(1)
[Categories of benefits]
For the purpose of subregulation (2), the following are categories of benefits:
(a)
preserved benefits, as defined in Subdivision 6.1.2;
(b)
restricted non-preserved benefits, as defined in Subdivision 6.1.3;
(c)
unrestricted non-preserved benefits, as defined in Subdivision 6.1.4.
History
Reg 6.16(1) amended by SR No 175 of 1998.
6.16(2)
[Limits to effects on member's benefits]
For the purposes of this Part, the governing rules of a fund, or the trustee of a fund, may alter the category of any of a member's benefits in the fund but, subject to subregulation (3), not so as to:
(a)
decrease the amount of the member's preserved benefits in the fund; or
(b)
increase the amount of the member's unrestricted non-preserved benefits in the fund.
History
Reg 6.16(2) amended by SR No 83 of 1998 and substituted by SR No 117 of 1997.
6.16(3)
[Trustee may alter category of benefits]
The trustee may alter the category of benefits in a fund from preserved benefits to unrestricted non-preserved benefits if:
(a)
before the commencement of regulation 6.15A and during the transitional period of the fund, there arose in relation to the benefits a circumstance that would have resulted in the satisfaction of a condition of release and a 'Nil' cashing restriction if these regulations applied; or
(b)
before the commencement of regulation 6.15A, both:
(i)
the benefits were rolled over or transferred to the fund from:
(A)
a superannuation fund (
Fund A
) during its transitional period; or
(B)
a regulated superannuation fund or an approved deposit fund to which the benefits were rolled over or transferred from a superannuation fund (
Fund B
) during its transitional period; and
(ii)
the trustee is reasonably satisfied that:
(A)
during the transitional period of Fund A or Fund B, there arose in relation to the benefits a circumstance that would have resulted in the satisfaction of a condition of release and a 'Nil' cashing restriction if these regulations applied; or
(B)
before the benefits were rolled over or transferred to Fund A or Fund B from a regulated superannuation fund or an approved deposit fund, the relevant cashing restriction set out in Schedule 1 in respect of the benefits was 'Nil'.
History
Reg 6.16(3) inserted by SR No 83 of 1998.
REGULATION 6.16A
WHEN NON-PRESERVED BENEFITS MAY BE REDUCED
6.16A(1)
[Application]
This regulation applies if, on or after 1 July 1999, the amount of a negative investment return for a period after 30 June 1999 to be debited against a member's benefits is more than the amount of the member's preserved benefits.
6.16A(2)
[Order of debiting]
The negative investment return must be debited in the following order:
(a)
first, against the member's preserved benefits; and
(b)
second, against the member's restricted non-preserved benefits; and
(c)
third (if required), against the member's unrestricted non-preserved benefits.
History
Reg 6.16A inserted by SR No 175 of 1998.
Division 6.2 - Payment of benefits
REGULATION 6.17
RESTRICTION ON PAYMENT
6.17(1)
For the purposes of subsections 31(1) and 32(1) of the Act, the standards set out in subregulations (2), (2A) and (2B) are applicable to the operation of regulated superannuation funds and approved deposit funds.
History
Reg 6.17(1) amended by SR No 153 of 2004, reg 3 and Sch 1 item 8, by substituting "the standards set out in subregulations (2), (2A) and (2B) are" for "the standard set out in subregulation (2) is", effective 25 June 2004.
6.17(2)
A member's benefits in a fund:
(a)
may be paid:
(i)
by being cashed in accordance with Division 6.3; or
(ii)
by being rolled over or transferred in accordance with Division 6.4, 6.5 or 6.7; or
(iii)
by being allotted under Division 6.7; and
(b)
must notbe paid in that way except when, and to the extent that, the fund is required or permitted under this Part to pay them; and
(c)
must be paid in that way when, and to the extent that, the fund is required under this Part to pay them.
History
Reg 6.17(2) amended by SLI No 334 of 2005, reg 3 and Sch 2 item 9, by substituting para (a)(ii) and (iii) for para (a)(ii), effective 1 January 2006. Para (a)(ii) formerly read:
(ii)
by being rolled over or transferred in accordance with Division 6.4 or 6.5; and
Reg 6.17(2) amended by SR No 251 of 2003, reg 3 and Sch 1 item 6, by substituting "Division 6.4 or 6.5" for "Division 6.4", effective 1 July 2004.
Reg 6.17(2), (2A) and (2B) substituted for reg 6.17(2) by SR No 153 of 2004, reg 3 and Sch 1 item 9, effective 25 June 2004. Reg 6.17(2) formerly read:
6.17(2)
A member's benefits in a fund:
(a)
may be paid only by:
(i)
being cashed in accordance with Division 6.3 or Part 7A; or
(ii)
being rolled over or transferred in accordance with Division 6.4 or Part 7A; and
(b)
must not be paid except when, and to the extent that, the fund is required or permitted under this Part or Part 7A to pay them; and
(c)
must be paid when, and to the extent that, the fund is required under this Part or Part 7A to pay them.
Reg 6.17(2) substituted by SR No 353 of 2001, reg 3 and Sch 1 item 37, effective 28 December 2002. S 6.17(2) formerly read:
6.17(2)
A member's benefits in a fund:
(a)
may only be paid by;
(i)
being cashed in accordance with Division 6.3; or
(ii)
being rolled over or transferred in accordance with Division 6.4 or 6.4A; and
(b)
must not be paid except when, and to the extent, that the fund is required or permitted under this Part to pay them; and
(c)
must be paid when, and to the extent that, the fund is required under this Part to pay them.
Reg 6.17(2) amended by SR No 159 of 1995.
6.17(2A)
A member's benefits in a fund:
(a)
may be paid:
(i)
by being cashed in accordance with Part 7A; or
(ii)
by being rolled over or transferred in accordance with Part 7A; and
(b)
must not be paid in that way except when, and to the extent that, the fund is required or permitted under Part 7A to pay them; and
(c)
must be paid in that way when, and to the extent that, the fund is required under Part 7A to pay them.
History
Reg 6.17(2), (2A) and (2B) substituted for reg 6.17(2) by SR No 153 of 2004, reg 3 and Sch 1 item 9, effective 25 June 2004.
6.17(2B)
A member's benefits in a fund:
(a)
may be paid in a way that is not described in subregulations (2) and (2A):
(i)
as a consequence of the trustee taking action that, because of Part 3 of the Family Law (Superannuation) Regulations 2025, has the effect that a future payment in respect of the superannuation interest of the member spouse would not be a splittable payment; or
(ii)
as a consequence of the operation of a fund's governing rules that, because of Part 3 of the Family Law (Superannuation) Regulations 2025, has the effect that a future payment in respect of the superannuation interest of the member spouse would not be a splittable payment; and
(b)
must not be paid in that way except when, and to the extent that, the fund would be required or permitted under those Regulations to pay them; and
(c)
must be paid in that way when, and to the extent that, the fund would be required under those regulations to pay them.
History
Reg 6.17(2B) amended by FRLI No F2025L00179, reg 4 and Sch 1 item 29, by substituting "Part 3 of the Family Law (Superannuation) Regulations 2025" for "Division 2.2 of the Family Law (Superannuation) Regulations 2001" in para (a)(i) and (ii), effective 1 April 2025.
Reg 6.17(2B) amended by SLI No 332 of 2005, reg 3 and Sch 1 item 14, by substituting para (a), effective 21 December 2005. Para (a) formerly read:
(a)
may be paid in a way:
(i)
that is not described in subregulations (2) and (2A); and
(ii)
that satisfies regulation 14G or 14N of the Family Law (Superannuation) Regulations 2001; and
Reg 6.17(2), (2A) and (2B) substituted for reg 6.17(2) by SR No 153 of 2004, reg 3 and Sch 1 item 9, effective 25 June 2004.
6.17(2C)
This regulation 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 |
History
Reg 6.17(2C) inserted by SLI No 146 of 2011, reg 3 and Sch 1 item 4, effective 9 August 2011.
6.17(3)
For this regulation, a payment to which regulation 7.9.66 or 7.9.68 of the Corporations Regulations 2001 relates is taken to be the payment of a benefit.
History
Reg 6.17(3) inserted by SR No 21 of 2002, reg 3 and Sch 1 item 37, effective 11 March 2002.
REGULATION 6.17A
PAYMENT OF BENEFIT ON OR AFTER DEATH OF MEMBER (ACT, S 59(1A))
6.17A(1)
[Application]
For subsections 31(1) and 32(1) of the Act, the standard set out in subregulation (4) is applicable to the operation of regulated superannuation funds and approved deposit funds.
6.17A(2)
[Governing rules may permit member election]
For subsection 59(1A) of the Act, the governing rules of a fund may permit a member of the fund to require the trustee to provide any benefits in respect of the member, on or after the death of the member, to the legal personal representative or a dependant of the member if the trustee gives to the member information under subregulation (3).
6.17A(3)
[Trustee must give information]
The trustee must give to the member information that the trustee reasonably believes the member reasonably needs for the purpose of understanding the right of that member to require the trustee to provide the benefits.
6.17A(4)
[Trustee must follow election]
Subject to subregulation (4A), and regulations 6.17B, 7A.17 and 7A.18, if the governing rules of a fund permit a member of the fund to require the trustee to provide any benefits in accordance with subregulation (2), the trustee must pay a benefit in respect of the member, on or after the death of the member, to the person or persons mentioned in a notice given to the trustee by the member if:
(a)
the person, or each of the persons, mentioned in the notice is the legal personal representative or a dependant of the member; and
(b)
the proportion of the benefit that will be paid to that person, or to each of those persons, is certain or readily ascertainable from the notice; and
(c)
the notice is in accordance with subregulation (6); and
(d)
the notice is in effect.
History
Reg 6.17A(4) amended by SR No 153 of 2004, reg 3 and Sch 1 item 10, by inserting "subregulation (4A), and" after "Subject to", effective 25 June 2004.
Reg 6.17A(4) amended by SR No 353 of 2001, reg 3 and Sch 1 item 38, by substituting "Subject to regulations 6.17B, 7A.17 and 7A.18," for "Subject to regulation 6.17B,", effective 28 December 2002.
6.17A(4A)
[Court restrictions on payment]
The trustee is not required to comply with subregulation (4) if the trustee:
(a)
is subject to a court order that has the effect of restraining or prohibiting the trustee from paying a benefit in respect of the member in accordance with a notice of the kind described in that subregulation; or
(b)
is aware that the member of the fund is subject to a court order that:
(i)
requires the member to amend or revoke a notice of that kind that the member has given the trustee; or
(ii)
has the effect of restraining or prohibiting the member from giving a notice of that kind.
History
Reg 6.17A(4A) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 11, effective 25 June 2004.
6.17A(5)
[Confirmation, amendment or revocation]
A member who gives notice under subregulation (4) may:
(a)
confirm the notice by giving to the trustee a written notice, signed, and dated, by the member, to that effect; or
(b)
amend, or revoke, the notice by giving to the trustee notice, in accordance with subregulation (6), of the amendment or revocation.
6.17A(6)
[Form of notice]
For paragraphs (4)(c) and (5)(b), the notice:
(a)
must be in writing; and
(b)
must be signed, and dated, by the member in the presence of 2 witnesses, being persons:
(i)
each of whom has turned 18; and
(ii)
neither of whom is a person mentioned in the notice; and
(c)
must contain a declaration signed, and dated, by the witnesses stating that the notice was signed by the member in their presence.
6.17A(7)
[Period of effect]
Unless sooner revoked by the member, a notice under subregulation (4) ceases to have effect:
(a)
at the end of the period of 3 years after the day it was first signed, or last confirmed or amended, by the member; or
(b)
if the governing rules of the fund fix a shorter period - at the end of that period.
History
Reg 6.17A inserted by SR No 115 of 1999.
REGULATION 6.17AA
6.17AA
PAYMENTS PREVENTED UNDER FAMILY LAW ACT 1975
If a trustee of a regulated superannuation fund or an approved deposit fund does not make a payment in accordance with the standard set out in subregulation 6.17(2) because the trustee is prevented from doing so:
(a)
under subsection 90XL(4) or 90YP(4) of the Family Law Act 1975; or
(b)
by an order made under subsection 90XU(1) or 90YZ(1) of the Family Law Act 1975;
the trustee is not in breach of the standard.
Note 1:
Subsections 90XL(4) and 90YP(4) of the Family Law Act 1975 provide that while a payment flag is operating on a superannuation interest, the trustee must not make any splittable payment to any person in respect of the interest.
Note 2:
Subsections 90XU(1) and 90YZ(1) of the Family Law Act 1975 provide that a court may make an order in relation to a superannuation interest directing the trustee not to make a splittable payment in respect of the interest without the leave of the court.
History
Reg 6.17AA amended by FRLI No F2021L01893, reg 4 and Sch 1 items 188-190, by substituting "90XL(4) or 90YP(4)" for "90ML(4)" in para (a), "90XU(1) or 90YZ(1)" for "90MU(1)" in para (b) and substituting notes 1 and 2 for the note, effective 28 September 2022. The note formerly read:
Note: Subsection 90ML(4) of the Family Law Act 1975 provides that while a payment flag is operating on a superannuation interest, the trustee must not make any splittable payment to any person in respect of the interest. Subsection 90MU(1) of the Family Law Act 1975 provides that a court may make an order in relation to a superannuation interest directing the trustee not to make a splittable payment in respect of the interest without the leave of the court.
Reg 6.17AA inserted by SR No 353 of 2002, reg 3 and Sch 1 item 28, effective 28 December 2002.
REGULATION 6.17B
6.17B
DUTY TO SEEK INFORMATION
If an item of information given by a member in a notice under subregulation 6.17A(4) is not sufficiently clear to allow the trustee to pay the benefit, the trustee must seek from the member a written statement to clarify the item as soon as practicable after the trustee receives the notice.
Example: If the proportion of the benefit that will be paid to the person, or to each person, mentioned in the notice is not certain, or is not readily ascertainable from the notice given by the member, the trustee must seek a statement of that proportion from the member.
History
Reg 6.17B inserted by SR No 115 of 1999.
REGULATION 6.17C
6.17C
PAYMENT AND COMMUTATION OF PENSION IN BREACH OF STANDARDS
If a regulated superannuation fund provides a pension under rules which meet the standards of subregulation 1.06(2), (7) or (8), the trustee must not:
(a)
pay the pension in a way that does not meet the standards of the relevant subregulation; or
(b)
allow the pension to be commuted except in accordance with the relevant subregulation.
History
Reg 6.17C inserted by SLI No 74 of 2007, reg 3 and Sch 1 item 15, effective 3 April 2007.
REGULATION 6.17D
BENEFITS TO BE PAID AS SOON AS PRACTICABLE WHERE MEMBER SATISFIES COMPASSIONATE GROUND RELATING TO CORONAVIRUS
6.17D(1)
For the purposes of subsections 31(1) and 32(1) of the Act, the standard set out in subregulation (3) is applicable to the operation of regulated superannuation funds and approved deposit funds.
6.17D(2)
This regulation applies if:
(a)
the Regulator has determined under subregulation 6.19B(3) (about coronavirus) that a specified amount of benefits in the fund may be released on a compassionate ground; and
(b)
the trustee of the fund receives from the Regulator a copy of the determination as referred to in subregulation 6.19B(6).
Note:
See items 107A and 207AA of Schedule 1.
6.17D(3)
The trustee must pay the benefits to the member as soon as practicable after the trustee receives the copy of the determination, without requiring any additional application from the member.
6.17D(4)
However, subregulation (3) does not apply if it would require the trustee to pay benefits from a defined benefit interest.
History
Reg 6.17D inserted by No 22 of 2020, s 3 and Sch 13 item 9, effective 25 March 2020.
Division 6.3 - Cashing of benefits
Subdivision 6.3.1 - Regulated superannuation funds
REGULATION 6.18
VOLUNTARY CASHING OF PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS
6.18(1)
[Condition for cashing benefits]
A member's preserved benefits in a regulated superannuation fund may be cashed on or after the satisfaction by the member of a condition of release.
Note:
For conditions of release for temporary residents, see regulation 6.01B.
History
Reg 6.18(1) amended by SLI No 282 of 2008, reg 4 and Sch 2 item 3, by inserting the note at the end, effective 1 April 2009.
6.18(2)
[Amount that may be cashed]
The amount of preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the sum of:
(a)
the amount of preserved benefits of the member that had accrued at the time when the member satisfied the condition of release; and
(b)
before 1 July 1999 - the amount of any investment earnings accruing on those benefits from the time when the member satisfied the condition of release.
History
Reg 6.18(2) amended by SR No 175 of 1998.
6.18(3)
[Form in which benefits may be cashed]
Subject to subregulation (4), the form in which preserved benefits may be cashed under this regulation is, unless the satisfied condition of release is the death of the member:
(a)
a form (if any) specified in Schedule 1 as a cashing restriction relating to the condition of release; or
(b)
if the specified cashing restriction is 'Nil' - any 1 or more of the following forms:
(i)
1 or more lump sums;
(ii)
1 or more pensions;
(iii)
the purchase of 1 or more annuities.
Note: For the cashing requirement applying on the death of the member, see regulation 6.21.
History
Reg 6.18(3) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 42, effective 1 July 2007. Reg 6.18(3) formerly read:
6.18(3)
Subject to subregulation (4), the form in which preserved benefits may be cashed under this regulation is:
(a)
the form (if any) specified in the cashing restriction for preserved benefits set out in Schedule 1 in relation to the relevant condition of release; or
(b)
if that cashing restriction is "Nil" - any one or more of the following forms:
(i)
a lump sum or 2 or more lump sums;
(ii)
a pension or 2 or more pensions;
(iii)
the purchase of an annuity or 2 or more annuities.
6.18(4)
[Benefits cashed in a lump sum]
A lump sum mentioned in subparagraph (3)(b)(i) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 6.21(2)(a).
REGULATION 6.19
VOLUNTARY CASHING OF RESTRICTED NON-PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS
6.19(1)
[Condition for cashing benefits]
A member's restricted non-preserved benefits in a regulated superannuation fund may be cashed on or after the satisfaction by the member of a condition of release.
Note:
For conditions of release for temporary residents, see regulation 6.01B.
History
Reg 6.19(1) amended by SLI No 282 of 2008, reg 4 and Sch 2 item 4, by inserting the note at the end, effective 1 April 2009.
6.19(2)
[Amount that may be cashed]
The amount of restricted non-preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the amount of:
(a)
the restricted non-preserved benefits of the member that had accrued at the time when the member satisfied the condition of release; and
(b)
before 1 July 1999 - any investment earnings accruing on those benefits from the time when the member satisfied the condition of release.
History
Reg 6.19(2) amended by SR No 175 of 1998.
6.19(3)
[Form in which benefits may be cashed]
Subject to subregulation (4), the form in which restricted non-preserved benefits may be cashed under this regulation is, unless the satisfied condition of release is the death of the member:
(a)
a form (if any) specified in Schedule 1 as a cashing restriction relating to the condition of release; or
(b)
if the specified cashing restriction is 'Nil' - any 1 or more of the following forms:
(i)
1 or more lump sums;
(ii)
1 or more pensions;
(iii)
the purchase of 1 or more annuities.
Note: For the cashing requirement applying on the death of the member, see regulation 6.21.
History
Reg 6.19(3) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 43, effective 1 July 2007. Reg 6.19(3) formerly read:
6.19(3)
Subject to subregulation (4), the form in which restricted non-preserved benefits may be cashed under this regulation is:
(a)
the form (if any) specified in the cashing restriction for restricted non-preserved benefits set out in Schedule 1 in relation to the relevant condition of release; or
(b)
if that cashing restriction is "Nil" - any one or more of the following forms:
(i)
a lump sum or 2 or more lump sums;
(ii)
a pension or 2 or more pensions;
(iii)
the purchase of an annuity or 2 or more annuities.
6.19(4)
[Benefits cashed in a lump sum]
A lump sum mentioned in subparagraph (3)(b)(i) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 6.21(2)(a).
REGULATION 6.19A
RELEASE OF BENEFITS ON COMPASSIONATE GROUNDS
6.19A(1)
A person may apply to the Regulator for a determination that an amount of the person's preserved benefits, or restricted non-preserved benefits, in a specified superannuation entity may be released on the ground that it is required:
(a)
to pay for medical treatment or medical transport for the person or a dependant; or
(b)
to enable the person to make a payment on a loan, to prevent:
(i)
foreclosure of a mortgage on the person's principal place of residence; or
(ii)
exercise by the mortgagee of an express, or statutory, power of sale over the person's principal place of residence; or
(c)
to modify the person's principal place of residence, or vehicle, to accommodate the special needs of the person, or a dependant, arising from severe disability; or
(d)
to pay for expenses associated with the person's palliative care, in the case of impending death; or
(e)
to pay for expenses associated with a dependant's:
(i)
palliative care, in the case of impending death; or
(ii)
death; or
(iii)
funeral; or
(iv)
burial; or
(f)
to meet expenses in other cases where the release is consistent with a ground mentioned in paragraphs (a) to (e), as the Regulator determines.
History
Reg 6.19A(1) amended by FRLI No F2018L00676, reg 4 and Sch 1 item 5, by substituting "in a specified superannuation entity" for "in a superannuation entity", applicable in relation to applications for the release of benefits on compassionate grounds made after 1 July 2018.
Reg 6.19A(1) amended by SR No 239 of 1999, SR No 193 of 1998 and SR No 343 of 1997.
6.19A(2)
The Regulator must determine, in writing, that the person has satisfied, for the purposes of subregulation 6.18(1) or 6.19(1), a condition of release on a compassionate ground if the Regulator is satisfied that:
(a)
the release is required on a ground mentioned in subregulation (1); and
(b)
the person does not have the financial capacity to meet an expense arising from that ground.
History
Reg 6.19A(2) amended by SR No 239 of 1999 and SR No 193 of 1998.
6.19A(3)
The Regulator cannot be satisfied that money is required for medical treatment unless 2 registered medical practitioners (at least one of whom must be a specialist) certify that:
(a)
the medical treatment is necessary to:
(i)
treat a life threatening illness or injury; or
(ii)
alleviate acute, or chronic, pain; or
(iii)
alleviate an acute, or chronic, mental disturbance; and
(b)
the treatment is not readily available to the person, or the dependant, through the public health system.
History
Reg 6.19A(3) amended by SR No 239 of 1999 and SR No 193 of 1998.
6.19A(4)
The Regulator cannot be satisfied that money is required for medical transport unless the medical treatment for which the medical transport is required has been certified, under subregulation (3), as necessary for a reason mentioned in paragraph (3)(a).
History
Reg 6.19A(4) amended by SR No 239 of 1999 and SR No 193 of 1998.
6.19A(5)
The Regulator cannot be satisfied that money is required on the ground mentioned in paragraph (1)(b) unless the person gives to the Regulator a written statement from the mortgagee that:
(a)
payment of an amount is overdue; and
(b)
if the person fails to pay the amount, the mortgagee will:
(i)
foreclose the mortgage on the person's principal place of residence; or
(ii)
exercise its express, or statutory, power of sale over the person's principal place of residence.
History
Reg 6.19A(5) amended by SR No 239 of 1999 and SR No 193 of 1998.
6.19A(6)
A statement under subregulation (5) must include the following information:
(a)
the amount that is equal to 3 months' repayments under the mortgage; and
(b)
the amount that is 12 months' interest on the outstanding balance of the loan at the time the statement is made.
6.19A(6A)
A determination under this regulation must specify the superannuation entity and the amount of the preserved benefits, or restricted non-preserved benefits, that may be released.
History
Reg 6.19A(6A) inserted by FRLI No F2018L00676, reg 4 and Sch 1 item 6, applicable in relation to applications for the release of benefits on compassionate grounds made after 1 July 2018.
6.19A(6B)
If the Regulator makes a determination under this regulation, the Regulator must give a copy of the determination to the person and the trustee of the specified superannuation entity.
History
Reg 6.19A(6B) inserted by FRLI No F2018L00676, reg 4 and Sch 1 item 6, applicable in relation to applications for the release of benefits on compassionate grounds made after 1 July 2018.
6.19A(7)
In this regulation:
medical transport
means transport, for medical attention, by land, water or air.
History
Reg 6.19A inserted by SR No 152 of 1997.
REGULATION 6.19B
RELEASE OF BENEFITS ON COMPASSIONATE GROUND - CORONAVIRUS
6.19B(1)
A person may apply to the Regulator for a determination that an amount of the person's preserved benefits, or restricted non-preserved benefits, in a specified superannuation entity or entities may be released on the ground that it is required to assist the person to deal with the adverse economic effects of the coronavirus known as COVID-19 if:
(a)
unless paragraph (b) applies - subregulation (1A) applies in respect of the person; or
(b)
in a case where regulation 6.01B (temporary residents) applies to the person:
(i)
the person is covered by subregulation (1B); and
(ii)
subregulation (1C) applies in respect of the person.
History
Reg 6.19B(1) substituted by FRLI No F2020L00431, reg 4 and Sch 1 item 8, effective 17 April 2020. Reg 6.19B(1) formerly read:
6.19B(1)
A person may apply to the Regulator for a determination that an amount of the person's preserved benefits, or restricted non-preserved benefits, in a specified superannuation entity or entities may be released on the ground that it is required to assist the person to deal with the adverse economic effects of the coronavirus known as COVID-19 if:
(a)
the person is unemployed; or
(b)
the person is eligible to receive any of the following under the Social Security Act 1991:
(i)
jobseeker payment;
(ii)
parenting payment;
(iii)
special benefit; or
(c)
the person is eligible to receive youth allowance under the Social Security Act 1991 (other than on the basis that the person is undertaking full-time study or is a new apprentice); or
(d)
the person is eligible to receive farm household allowance under the Farm Household Support Act 2014; or
(e)
on or after 1 January 2020 the person was made redundant, or their working hours were reduced by 20% or more (including to zero); or
(f)
for a person who is a sole trader - on or after 1 January 2020 the person's business was suspended or suffered a reduction in turnover of 20% or more.
6.19B(1AA)
For the purposes of subregulation (1), treat a permanent resident of New Zealand as being a permanent resident.
History
Reg 6.19B(1AA) inserted by FRLI No F2020L01610, reg 4 and Sch 1 item 66, effective 15 December 2020 and applies on and after 25 March 2020.
6.19B(1A)
For the purposes of paragraph (1)(a), this subregulation applies in respect of the person if:
(a)
the person is unemployed; or
(b)
the person is eligible to receive any of the following under the Social Security Act 1991:
(i)
jobseeker payment;
(ii)
parenting payment;
(iii)
special benefit; or
(c)
the person is eligible to receive youth allowance under the Social Security Act 1991 (other than on the basis that the person is undertaking full-time study or is a new apprentice); or
(d)
the person is eligible to receive farm household allowance under the Farm Household Support Act 2014; or
(e)
on or after 1 January 2020 the person was made redundant, or their working hours were reduced by 20% or more (including to zero); or
(f)
for a person who is a sole trader - on or after 1 January 2020 the person's business was suspended or suffered a reduction in turnover of 20% or more.
History
Reg 6.19B(1A) inserted by FRLI No F2020L00431, reg 4 and Sch 1 item 8, effective 17 April 2020.
6.19B(1B)
For the purposes of subparagraph (1)(b)(i), this subregulation covers the person if:
(a)
the person is the holder of a student visa; or
(b)
the person is the holder of any of the following visas, as mentioned in the Migration Regulations 1994:
(i)
a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)
a Subclass 482 (Temporary Skill Shortage) visa; or
(c)
the person is a temporary resident, and is not the holder of a visa mentioned in paragraph (a) or (b).
History
Reg 6.19B(1B) inserted by FRLI No F2020L00431, reg 4 and Sch 1 item 8, effective 17 April 2020.
6.19B(1C)
For the purposes of subparagraph (1)(b)(ii), this subregulation applies in respect of the person if:
(a)
in a case where paragraph (1B)(a) applies:
(i)
the person has held a student visa for 12 months or more; and
(ii)
the person is unable to meet his or her immediate living expenses; or
(b)
in a case where paragraph (1B)(b) applies:
(i)
the person is employed; and
(ii)
the person is unable to meet his or her immediate living expenses; or
(c)
in a case where paragraph (1B)(c) applies - the person is unable to meet his or her immediate living expenses.
History
Reg 6.19B(1C) amended by FRLI No F2020L00532, reg 4 and Sch 1 item 2, by substituting para (b), effective 1 May 2020. Para (b) formerly read:
(b)
in a case where paragraph (1B)(b) applies:
(i)
on or after 1 January 2020 the person's working hours were reduced to zero by an employer; and
(ii)
the person is still employed by the employer; or
Reg 6.19B(1C) inserted by FRLI No F2020L00431, reg 4 and Sch 1 item 8, effective 17 April 2020.
6.19B(2)
A person may make one or more applications under subregulation (1) as follows:
(a)
one in the financial year ending 30 June 2020; and
(b)
in a case where paragraph (1)(a) applies - one in the financial year ending 30 June 2021.
However, no application may be made after 31 December 2020.
History
Reg 6.19B(2) amended by FRLI No F2020L01133, reg 4 and Sch 1 item 2, by substituting "31 December 2020" for "24 September 2020", effective 4 September 2020.
Reg 6.19B(2) substituted by FRLI No F2020L00431, reg 4 and Sch 1 item 9, effective 17 April 2020. Reg 6.19B(2) formerly read:
6.19B(2)
A person may make 2 applications under subregulation (1) as follows:
(a)
one in the financial year ending 30 June 2020; and
(b)
one in the financial year ending 30 June 2021.
However, no application may be made after the end of the period of 6 months starting on the day this regulation commences.
Note:
This regulation was inserted by the Coronavirus Economic Response Package Omnibus Act 2020.
6.19B(3)
The Regulator must determine, in writing, that the person has satisfied, for the purposes of subregulation 6.18(1) or 6.19(1), the condition of release on a compassionate ground if the Regulator has not already made a determination under this regulation or regulation 4.22B of the Retirement Savings Account Regulations 1997 in relation to the person in respect of an application made by the person in the financial year.
6.19B(4)
For the purposes of subregulation (3), treat a revoked determination as not having been made.
6.19B(5)
A determination under this regulation must specify the superannuation entity or entities and the amount of the preserved benefits, or restricted non-preserved benefits, that may be released from each specified entity. The sum of the amounts specified in a determination must not exceed $10,000.
6.19B(6)
If the Regulator makes a determination under this regulation, the Regulator must give a copy of the determination to the person and the trustee of each specified superannuation entity.
History
Reg 6.19B inserted by No 22 of 2020, s 3 and Sch 13 item 10, effective 25 March 2020.
REGULATION 6.20
VOLUNTARY CASHING OF UNRESTRICTED NON-PRESERVED BENEFITS IN REGULATED SUPERANNUATION FUNDS
6.20(1)
[Benefits may be cashed any time]
A member's unrestricted non-preserved benefits in a regulated superannuation fund may be cashed at any time.
6.20(2)
[Amount that may be cashed]
The amount of unrestricted non-preserved benefits that may be cashed in accordance with subregulation (1) is the whole or part of the member's unrestricted non-preserved benefits in the fund.
6.20(3)
[Form in which benefits may be cashed]
Subject to subregulation (4), the form in which unrestricted non-preserved benefits may be cashed under this regulation is, unless the cashing occurs in consequence of the death of the member, any one or more of the following forms:
(a)
one or more lump sums;
(b)
one or more pensions;
(c)
the purchase of one or more annuities.
Note:
For the cashing requirement applying on the death of the member, see regulation 6.21.
History
Reg 6.20(3) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 44, effective 1 July 2007. Reg 6.20(3) formerly read:
6.20(3)
Subject to subregulation (4), the form in which unrestricted non-preserved benefits may be cashed under this regulation is any one or more of the following forms:
(a)
a lump sum or 2 or more lump sums;
(b)
a pension or 2 or more pensions;
(c)
the purchase of an annuity or 2 or more annuities.
6.20(4)
[Benefits cashed in a lump sum]
A lump sum mentioned in paragraph (3)(a) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 6.21(2)(a).
History
Reg 6.20(4) amended by SR No 189 of 1994.
REGULATION 6.20A
COMPULSORY CASHING OF BENEFITS IN A REGULATED SUPERANNUATION FUND THAT IS NOT AN UNFUNDED PUBLIC SECTOR SUPERANNUATION SCHEME - TEMPORARY RESIDENTS
6.20A(1)
This regulation applies to a member's benefits in a regulated superannuation fund that is not an unfunded public sector superannuation scheme if:
(a)
the member:
(i)
was a temporary resident; and
(ii)
is not an Australian citizen, New Zealand citizen or permanent resident; and
(iii)
has left Australia; and
(b)
the member's visa has ceased to be in effect.
History
Reg 6.20A(1) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 3, by substituting para (a)(iii), effective 7 February 2009. Para (a)(iii) formerly read:
(iii)
has departed from Australia; and
Reg 6.20A(1) substituted by SLI No 282 of 2008, reg 3 and Sch 1 item 24, effective 18 December 2008. Reg 6.20A(1) formerly read:
6.20A(1)
A member's benefit in a regulated superannuation fund that is not an unfunded public sector superannuation scheme must be cashed if:
(a)
the trustee of the fund receives a request from the member; and
(b)
subregulation (2) or (3) is complied with.
6.20A(1A)
The member's benefits must be cashed if:
(a)
the trustee of the fund receives a request from the member that the benefits be cashed; and
(b)
subregulation (2) or (3) is complied with.
History
Reg 6.20A(1A) inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 24, effective 18 December 2008.
6.20A(2)
If the member's withdrawal benefit in the fund is less than $5 000, the trustee of the fund must receive:
(a)
a copy, or other evidence, of a visa showing that the member was a temporary resident but the member's temporary visa has ceased to be in effect; and
(b)
a copy of the member's passport showing that the member has left Australia.
History
Reg 6.20A(2) amended by FRLI No F2025L00307, reg 4 and Sch 1 item 42, by repealing the note, effective 8 March 2025. The note formerly read:
Note:
For the ways of giving evidence of a visa, see regulation 2.17 of the Migration Regulations 1994.
Reg 6.20A(2) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 4, by substituting "the member has left Australia" for "the member has departed from Australia" in para (b), effective 7 February 2009.
Reg 6.20A(2) amended by SLI No 282 of 2008, reg 3 and Sch 1 item 25, by substituting para (a), effective 18 December 2008. Para (a) formerly read:
(a)
a copy of a visa, or evidence of a visa, showing that the member was the holder of an eligible temporary resident visa that has expired or that has been cancelled; and
6.20A(3)
The trustee of the fund must be satisfied, based on a written statement from the Immigration Department, that:
(a)
the member was a temporary resident but the member's temporary visa has ceased to be in effect; and
(b)
the member has left Australia.
History
Reg 6.20A(3) amended by FRLI No F2017L00321, reg 4 and Sch 8 item 24, by substituting "Immigration Department" for "Department of Immigration and Citizenship", effective 28 March 2017.
Reg 6.20A(3) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 5, by substituting para (b), effective 7 February 2009. Para (b) formerly read:
(b)
the member has departed from Australia.
Reg 6.20A(3) substituted by SLI No 282 of 2008, reg 3 and Sch 1 item 26, effective 18 December 2008. Reg 6.20A(3) formerly read:
6.20A(3)
The trustee of the fund must be satisfied, based on a written statement from the Department of Immigration and Multicultural and Indigenous Affairs, that:
(a)
the member was the holder of an eligible temporary resident visa that has expired or has been cancelled; and
(b)
the member has permanently departed from Australia.
Reg 6.20A(3) amended by SR No 42 of 2003, reg 3 and Sch 1 item 2, by substituting "The trustee" for "If the member's withdrawal benefit in the fund is at least $5,00, the trustee", effective 27 March 2003.
6.20A(3A)
For subregulation (3), the statement may be in electronic form.
History
Reg 6.20A(3A) inserted by SR No 42 of 2003, reg 3 and Sch 1 item 3, effective 27 March 2003.
6.20A(4)
The benefits must be cashed in the period mentioned in subregulation (5):
(a)
as a single lump sum that is at least the amount of the member's withdrawal benefit in the fund; or
(b)
if the fund receives any combination of contributions, transfers and rollovers after cashing the benefits:
(i)
in a way that ensures that an amount that is at least the amount of the member's withdrawal benefit in the fund is cashed; and
(ii)
without requiring an additional application from the member.
6.20A(5)
For subregulation (4), the period is:
(a)
if the trustee of the fund receives a request from the member not later than 31 October 2002 - 3 months after the request is lodged; and
(b)
in any other case - 28 days after the request is lodged.
Note:
A payment made under this regulation is a
departing Australia superannuation payment
within the meaning of section 301-170of the 1997 Tax Act.
History
Reg 6.20A(5) amended by SLI No 282 of 2008, reg 3 and Sch 1 item 27, by substituting the note. The note formerly read:
Note:
A payment made under this regulation is a "departing Australia superannuation payment" within the meaning of subsection 995-1(1) of the 1997 Tax Act.
Reg 6.20A(5) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 45, by substituting the note. The note formerly read:
Note:
A payment made under this regulation is a "departing Australia superannuation payment" for the purposes of the Income Tax Assessment Act 1936.
6.20A(6)
(Repealed by SR No 251 of 2003)
History
Reg 6.20A(6) (except the note) repealed by SR No 251 of 2003, reg 3 and Sch 1 item 7, effective 1 July 2004. Reg 6.20A(6) formerly read:
6.20A(6)
In this regulation:
unfunded public sector superannuation scheme
means a regulated superannuation fund that is declared to be an unfunded defined benefits superannuation scheme under regulation 2A of the Superannuation Contributions Tax (Assessment and Collection) Regulations 1997.
Reg 6.20A inserted by SR No 91 of 2002.
REGULATION 6.20B
VOLUNTARY CASHING OF BENEFITS IN A REGULATED SUPERANNUATION FUND THAT IS AN UNFUNDED PUBLIC SECTOR SUPERANNUATION SCHEME - TEMPORARY RESIDENTS
6.20B(1)
This regulation applies to a member's benefits in a regulated superannuation fund that is an unfunded public sector superannuation scheme if:
(a)
the member:
(i)
was a temporary resident; and
(ii)
is not an Australian citizen, New Zealand citizen or permanent resident; and
(iii)
has left Australia; and
(b)
the member's visa has ceased to be in effect.
History
Reg 6.20B(1) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 6, by substituting para (a)(iii), effective 7 February 2009. Para (a)(iii) formerly read:
(iii)
has departed from Australia; and
Reg 6.20B(1) substituted by SLI No 282 of 2008, reg 3 and Sch 1 item 28, effective 18 December 2008. Reg 6.20B(1) formerly read:
6.20B(1)
A member's benefit in a regulated superannuation fund that is an unfunded public sector superannuation scheme may be cashed if:
(a)
the trustee of the fund receives a request from the member; and
(b)
subregulation (2) or (3) is complied with.
6.20B(1A)
The member's benefits may be cashed if:
(a)
the trustee of the fund receives a request from the member that the benefits be cashed; and
(b)
subregulation (2) or (3) is complied with.
History
Reg 6.20B(1A) inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 28, effective 18 December 2008.
6.20B(2)
If the member's withdrawal benefit in the fund is less than $5 000, the trustee of the fund must receive:
(a)
a copy, or other evidence, of a visa showing that the member was a temporary resident but the member's temporary visa has ceased to be in effect; and
(b)
a copy of the member's passport showing that the member has left Australia.
History
Reg 6.20B(2) amended by FRLI No F2025L00307, reg 4 and Sch 1 item 43, by repealing the note, effective 8 March 2025. The note formerly read:
Note:
For the ways of giving evidence of a visa, see regulation 2.17 of the Migration Regulations 1994.
Reg 6.20B(2) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 7, by substituting "the member has left Australia" for "the member has departed from Australia" in para (b), effective 7 February 2009.
Reg 6.20B(2) amended by SLI No 282 of 2008, reg 3 and Sch 1 item 29, by substituting para (a), effective 18 December 2008. Para (a) formerly read:
(a)
a copy of a visa, or evidence of a visa, showing that the member was the holder of an eligible temporary resident visa that has expired or that has been cancelled; and
6.20B(3)
The trustee of the fund must be satisfied, based on a written statement from the Immigration Department, that:
(a)
the member was a temporary resident but the member's temporary visa has ceased to be in effect; and
(b)
the member has left Australia.
History
Reg 6.20B(3) amended by FRLI No F2017L00321, reg 4 and Sch 8 item 24, by substituting "Immigration Department" for "Department of Immigration and Citizenship", effective 28 March 2017.
Reg 6.20B(3) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 8, by substituting para (b), effective 7 February 2009. Para (b) formerly read:
(b)
the member has departed from Australia.
Reg 6.20B(3) substituted by SLI No 282 of 2008, reg 3 and Sch 1 item 30, effective 18 December 2008. Reg 6.20B(3) formerly read:
6.20B(3)
The trustee of the fund must be satisfied, based on a written statement from the Department of Immigration and Multicultural and Indigenous Affairs, that:
(a)
the member was the holder of an eligible temporary resident visa that has expired or has been cancelled; and
(b)
the member has permanently departed from Australia.
Former reg 6.20B(3) amended by SR No 42 of 2003, reg 3 and Sch 1 item 4, by substituting "The trustee" for "If the member's withdrawal benefit in the fund is at least $5,000, the trustee", effective 27 March 2003.
6.20B(3A)
For subregulation (3), the statement may be in electronic form.
History
S 6.20B(3A) inserted by SR No 42 of 2003, reg 3 and Sch 1 item 5, effective 27 March 2003.
6.20B(4)
If the benefits are cashed, the benefits must be cashed:
(a)
as a single lump sum that is at least the amount of the member's withdrawal benefit in the fund; or
(b)
if the fund receives any combination of contributions, transfers and rollovers after cashing the benefits:
(i)
in a way that ensures that an amount that is at least the amount of the member's withdrawal benefit in the fund is cashed; and
(ii)
without requiring an additional application from the member.
Note:
A payment made under this regulation is a "departing Australia superannuation payment" within the meaning of subsection 995-1(1) of the 1997 Tax Act.
History
Reg 6.20B(4) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 46, by substituting the note, effective 1 July 2007. The note formerly read:
Note:
A payment made under this regulation is a "departing Australia superannuation payment" for the purposes of the Income Tax Assessment Act 1936.
6.20B(5)
(Repealed by SR No 251 of 2003)
History
Reg 6.20B(5) (except the note) repealed by SR No 251 of 2003, reg 3 and Sch 1 item 8, effective 1 July 2004. Reg 6.20B(5) formerly read:
6.20B(5)
In this regulation:
unfunded public sector superannuation scheme
means a regulated superannuation fund that is declared to be an unfunded defined benefits superannuation scheme under regulation 2A of the Superannuation Contributions Tax (Assessment and Collection) Regulations 1997.
Reg 6.20B inserted by SR No 91 of 2002.
REGULATION 6.20C
6.20C
CASHING OF BENEFITS IN A REGULATED SUPERANNUATION FUND - PAYMENT TO COMMISSIONER OF TAXATION
If the trustee of a regulated superannuation fund is required to pay an amount to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999, or chooses to pay an amount to the Commissioner of Taxation under Part 3D of that Act, for a person's superannuation interest in the fund, the amount must be cashed in favour of the Commissioner of Taxation as a lump sum.
Note:
An amount required to be paid under the Superannuation (Unclaimed Money and Lost Members) Act 1999 must be paid by the time required under that Act.
History
Reg 6.20C amended by FRLI No F2021L00412, reg 4 and Sch 1 items 24 and 25, by inserting ", or chooses to pay an amount to the Commissioner of Taxation under Part 3D of that Act," and inserting "required" in the note, effective 2 April 2021.
Reg 6.20C amended by SLI No 15 of 2009, reg 3 and Sch 1 items 9 to 11 by substituting the heading, substituting "a person's superannuation interest" for "a member's superannuation interest" and substituting "a lump sum" for "a single lump sum", effective 7 February 2009.
Reg 6.20C inserted by SLI 282 of 2008, reg 3 and Sch 1 item 31, effective 18 December 2008.
REGULATION 6.21
COMPULSORY CASHING OF BENEFITS IN REGULATED SUPERANNUATION FUNDS
6.21(1)
Subject to subregulation (3), a member's benefits in a regulated superannuation fund must be cashed as soon as practicable after the member dies.
History
Reg 6.21(1) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 47, effective 1 July 2007. Reg 6.21(1) formerly read:
6.21(1)
Subject to subregulation (3), a member's benefits in a regulated superannuation fund (other than the member's post-65 employer-financed benefits) must be cashed as soon as practicable after the occurrence of any of the followingevents:
(a)
the member:
(i)
has attained age 65 but not age 75; and
(ii)
is not gainfully employed to at least a part-time equivalent level;
(b)
the member:
(i)
had, on 30 June 2004, reached age 75; and
(ii)
has not, since 1 July 2004, continued to be gainfully employed for at least 30 hours a week;
(c)
the member has reached age 75, and the member's 75th birthday occurs on or after 1 July 2004;
(d)
the member dies.
Reg 6.21(1) amended by SR No 349 of 2004, reg 3 and Sch 1 item 1, by substituting para (c), effective 1 July 2004. Para (c) formerly read:
(c)
the member has reached age 75, and is not a person to whom paragraph (b) applies;
Reg 6.21(1) amended by SR No 148 of 2004, reg 3 and Sch 1 items 4 and 5, by substituting "to at least a part-time equivalent level;" for "on either a full-time or part-time basis;" in para (a)(ii) and substituting paras (b), (c) and (d) for paras (b) and (c), effective 1 July 2004. Paras (b) and (c) formerly read:
(b)
the member:
(i)
has attained age 75; and
(ii)
is not gainfully employed on a full-time basis;
(c)
the member dies.
Reg 6.21(1) amended by SR No 150 of 2002, reg 3 and Sch 1 item 10, by substituting "75" for "70" in para (a)(i) and (b)(i), effective 1 July 2002.
Reg 6.21(1) amended by SR No 117 of 1997 and SR No 189 of 1994.
6.21(1A)
(Repealed by SLI No 74 of 2007)
History
Reg 6.21(1A) repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 48, effective 1 July 2007. Reg 6.21(1A) formerly read:
6.21(1A)
Subject to subregulation (3), a member's post-65 employer-financed benefits in a regulated superannuation fund must be cashed as soon as practicable after the occurrence of any of the following events:
(a)
where:
(i)
the member has reached age 65 but not age 75; and
(ii)
the member is not gainfully employed to at least a part-time equivalent level; and
(iii)
mandated employer contributions have ceased to be made, and are not liable to be made, in respect of the member to:
(A)
the fund; or
(B)
another regulated superannuation fund; or
(C)
an RSA; or
(D)
an EPSSS;
(b)
where:
(i)
the member has attained age 75; and
(ii)
(Repealed by SR No 148 of 2004)
(iii)
mandated employer contributions have ceased to be made, and are not liable to be made, in respect of the member to:
(A)
the fund; or
(B)
another regulated superannuation fund; or
(C)
an RSA; or
(D)
an EPSSS;
(c)
where the member dies.
Reg 6.21(1A) amended by SR No 148 of 2004, reg 3 and Sch 1 items 6 and 7, by substituting "to at least a part-time equivalent level;" for "on either a full-time or part-time basis;" in para (a)(ii) and repealing para (b)(ii), effective 1 July 2004. Para (b)(ii) formerly read:
(ii)
the member is not gainfully employed on a full-time basis; and
Reg 6.21(1A) amended by SR No 150 of 2002, reg 3 and Sch 1 item 10, by substituting "75" for "70" in para (a)(i) and (b)(i), effective 1 July 2002.
Reg 6.21(1A) amended by SR No 14 of 1999 and inserted by SR No 117 of 1997.
[
CCH Note: MODIFICATION DECLARATION No 24
states that subregulations 6.21(1) and 6.21(1A) of the Regulations are to have effect in relation to trustees and members of superannuation entities as if they were modified by inserting after subregulation 6.21(1A):
(1B)
During the period 1 July 2004 to 30 June 2005, the benefits of a member (including a member's post-65 employer-financed benefits) are not required to be cashed in accordance with paragraph 6.21(1)(a) or 6.21(1A)(a).
(1C)
A trustee's failure to cash a member's benefits (including a member's post-65 employer-financed benefits) in accordance with paragraph 6.21(1)(a) or 6.21(1A)(a) during the period 1 July 2004 to the date of commencement of Modification Declaration No 24 is not a breach of those paragraphs.
This Declaration commences on the date it is signed.
Dated 2 May 2005
Interpretation
In this Declaration
Act
means the Superannuation Industry (Supervision) Act 1993.
APRA
means the Australian Prudential Regulation Authority.
Regulations
means the Superannuation Industry (Supervision) Regulations 1994.
]
[
Modification declaration No 3 of 2006
(No 3 of 2006, registered on and effective from 30 June 2006).
Regulation 6.21 is to have effect in relation to trustees and members of superannuation entities as if it was modified, by inserting after subregulation 6.21(1C) (as inserted by Modification Declaration No 24):
6.21(1D)
During the period 10 May 2006 to 30 June 2007:
(i)
a member's benefits in a regulated superannuation fund (other than the member's post-65 employer-financed benefits) are not required to be cashed in accordance with paragraphs 6.21(1)(a), 6.21(1)(b) or 6.21(1)(c); and
(ii)
a member's post-65 employer-financed benefits are not required to be cashed in accordance with paragraphs 6.21(1A)(a) or 6.21(1A)(b).
6.21(1E)
The cashing of a member's benefits (including the member's post-65 employer-financed benefits) by a trustee during the period 10 May 2006 to the date of registration of this modification declaration is not a breach of regulation 6.21 as modified.
]
6.21(2)
The form in which benefits may be cashed under this regulation is any one or more of the following forms:
(a)
in respect of each person to whom benefits are cashed:
(i)
a single lump sum; or
(ii)
an interim lump sum (not exceeding the amount of the benefits ascertained at the date of the event mentioned in subregulation (1)) and a final lump sum (not exceeding the balance of the benefits as finally ascertained in relation to the event);
(aa)
a series of payments, each of which is a payment of a superannuation lump sum mentioned in paragraph 301-275(1)(b) of the 1997 Tax Act;
(b)
subject to subregulations (2A) and (2B):
(i)
1 or more pensions, each of which is a superannuation income stream that is in the retirement phase;
(ii)
the purchase of 1 or more annuities, each of which is a superannuation income stream that is in the retirement phase.
(c)
(Repealed by SLI No 74 of 2007)
History
Reg 6.21(2) amended by FRLI No F2023L00846, reg 4 and Sch 1 item 4, by inserting para (aa), effective 24 June 2023. For application provision, see s 14.35.
Reg 6.21(2) amended by FRLI No F2017L00321, reg 4 and Sch 1 items 22 and 23, by inserting ", each of which is a superannuation income stream that is in the retirement phase" in para (b)(i) and (ii), applicable on and after 1 July 2017.
Reg 6.21(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 items 49 and 50, by substituting para (a)(ii), and substituting para (b) for paras (b) and (c), effective 1 July 2007. Paras (a)(ii), (b) and (c) formerly read:
(ii)
an interim lump sum (not exceeding the amount of the benefits ascertained at the date of an event mentioned in subregulation (l) or (1A)) and a final lump sum (not exceeding the balance of the benefits as finally ascertained in relation to the event).
(b)
a pension or 2 or more pensions;
(c)
the purchase of an annuity or 2 or more annuities.
Reg 6.21(2) amended by SR No 83 of 1998 and SR No 189 of 1994.
6.21(2A)
If a member dies on or after 1 July 2007, subparagraphs (2)(b)(i) and (ii) apply to an entitled recipient only if, at the time of the member's death, the entitled recipient:
(a)
is a dependant of the member; and
(b)
in the case of a child of the member:
(i)
is less than 18 years of age; or
(ii)
being 18 or more years of age:
(A)
is financially dependent on the member and less than 25 years of age; or
(B)
is a person with disability to whom subregulation (2C) applies.
History
Reg 6.21(2A) amended by FRLI No F2025L00307, reg 4 and Sch 1 item 36, by substituting para (b)(ii)(B), effective 8 March 2025. For transitional provision, see note under reg 14.39. Para (b)(ii)(B) formerly read:
(B)
has a disability of the kind described in subsection 8(1) of the Disability Services Act 1986.
Reg 6.21(2A) inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 51, effective 1 July 2007.
6.21(2B)
If benefits in relation to a deceased member are being paid to a child of the deceased member in the form of a pension or an annuity in accordance with subregulation (2A), the benefits must be cashed as a lump sum on the earlier of:
(a)
the day on which the annuity or pension is commuted, or the term of the annuity or pension expires (unless the benefit is rolled over to commence a new annuity or pension); and
(b)
the day on which the child attains age 25;
unless the child is a person with disability to whom subregulation (2C) applies on the day that would otherwise be applicable under paragraph (a) or (b) of this subregulation.
History
Reg 6.21(2B) amended by FRLI No F2025L00307, reg 4 and Sch 1 item 37, by substituting "is a person with disability to whom subregulation (2C) applies on the day that would otherwise be applicable under paragraph (a) or (b) of this subregulation" for all the words from and including "has a disability" to and including "paragraph (2B)(a) or (b)", effective 8 March 2025. For transitional provision, see note under reg 14.39.
Reg 6.21(2B) inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 51, effective 1 July 2007.
6.21(2C)
This subregulation applies to a person with disability that:
(a)
is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of such impairments; and
(b)
is permanent or likely to be permanent; and
(c)
results in:
(i)
a substantially reduced capacity of the person for communication, learning or mobility; and
(ii)
the need for ongoing support services.
History
Reg 6.21(2C) inserted by FRLI No F2025L00307, reg 4 and Sch 1 item 38, effective 8 March 2025.
6.21(3)
For the purposes of subregulation (1), it is sufficient if, instead of being cashed, the benefits are rolled over as soon as practicable for immediate cashing.
History
Reg 6.21(3) inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 52, by substituting "subregulation (1)" for "subregulations (1) and (1A)", effective 1 July 2007.
Reg 6.21(3) amended by SR No 117 of 1997 and inserted by SR No 189 of 1994.
6.21(3A)
(Repealed by SLI No 74 of 2007)
History
Reg 6.21(3A) repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 53, effective 1 July 2007. Reg 6.21(3A) formerly read:
6.21(3A)
For subregulations (1) and (1A), after the member turns 65 years:
(a)
the trustee of the fund must make reasonable attempts to keep itself informed about the member's ongoing employment status; and
(b)
if the trustee of the fund cannot find out the member's ongoing employment status, the member is taken not to be gainfully employed.
Reg 6.21(3A) inserted by SR No 175 of 1998.
6.21(4)
In this regulation:
service
includes a service consisting of the supplying of goods, whether or not accompanied by the provision of other services.
History
Reg 6.21(4) inserted by FRLI No F2025L00307, reg 4 and Sch 1 item 39, effective 8 March 2025.
Reg 6.21(4) repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 53, effective 1 July 2007. Reg 6.21(4) formerly read:
6.21(4)
Benefits in a regulated superannuation fund that were post-65 employer-financed benefits in the source from which they were received continue to be post-65 employer-financed benefits in that fund.
Reg 6.21(4) inserted by SR No 117 of 1997.
6.21(5)
(Repealed by SLI No 74 of 2007)
History
Reg 6.21(5) repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 53, effective 1 July 2007. Reg 6.21(5) formerly read:
6.21(5)
In this regulation:
"post-65 employer-financed benefits"
, in relation to a member of a regulated superannuation fund as at a particular date, means the sum of:
(a)
the amount of the mandated employer contributions made to the fund in respect of the member in respect of the period commencing when the member reached age 65 and ending on that date; and
(b)
the amount of the mandated employer contributions made to another regulated superannuation fund or to an EPSSS or an RSA in respect of the member in respect of that period, if the benefits arising in respect of those contributions were transferred or rolled over to the fund during that period; and
(c)
the amount of the investment earnings on those amounts during that period;
less the costs applicable to those amounts during that period.
Reg 6.21(5) amended by SR No 14 of 1999 and inserted by SR No 117 of 1997.
6.21(6)
(Repealed by SLI No 74 of 2007)
History
Reg 6.21(6) repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 53, effective 1 July 2007. Reg 6.21(6) formerly read:
6.21(6)
In this regulation a person is gainfully employed at a
part-time equivalent level
if the person was gainfully employed for at least 240 hours during the financial year that ended on the last occurring 30 June.
Reg 6.21(6) inserted by SR No 148 of 2004, reg 3 and Sch 1 item 8, effective 1 July 2004.
REGULATION 6.22
LIMITATION ON CASHING OF BENEFITS IN REGULATED SUPERANNUATION FUNDS IN FAVOUR OF PERSONS OTHER THAN MEMBERS OR THEIR LEGAL PERSONAL REPRESENTATIVES
6.22(1)
Subject to subregulation (6) and regulations 6.22B, 7A.13, 7A.17 and 7A.18, a member's benefits in a regulated superannuation fund must not be cashed in favour of a person other than the member or the member's legal personal representative:
(a)
unless:
(i)
the member has died; and
(ii)
the conditions of subregulation (2) or (3) are satisfied; or
(b)
unless the conditions of subregulation (4) or (5) are satisfied.
History
Reg 6.22(1) amended by SLI No 146 of 2011, reg 3 and Sch 1 item 5, by inserting "subregulation (6) and" after "Subject to", effective 9 August 2011.
Reg 6.22(1) amended by SLI 282 of 2008, reg 3 and Sch 1 item 32, by substituting para (b), effective 18 December 2008. Para (b) formerly read:
(b)
unless the conditions of subregulation (4) are satisfied.
Reg 6.22(1) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 54, effective 1 July 2007. Reg 6.22(1) formerly read:
6.22(1)
Subject to regulations 6.22B, 7A.13, 7A.17 and 7A.18, a member's benefits in a regulated superannuation fund must not be cashed in favour of a person other than the member or the member's legal personal representative unless:
(a)
the member has died; and
(b)
the conditions of subregulation (2) or (3) are satisfied.
Reg 6.22(1) amended by SR No 353 of 2001, SR No 117 of 1997 and SR No 189 of 1994.
6.22(2)
The conditions of this subregulation are satisfied if the benefits are cashed in favour of either or both of the following:
(a)
the member's legal personal representative;
(b)
one or more of the member's dependants.
6.22(3)
The conditions of this subregulation are satisfied if:
(a)
the trustee has not, after making reasonable enquiries, found either a legal personal representative, or a dependant, of the member; and
(b)
the person in whose favour benefits are cashed is an individual.
History
Reg 6.22(3) amended by SR No 189 of 1994.
6.22(4)
The conditions of this subregulation are satisfied if:
(a)
the superannuation provider has been issued a release authority in respect of the member under section 131-15 or 135-40 in Schedule 1 to the Taxation Administration Act 1953; and
(b)
the benefits are cashed in favour of the Commissioner of Taxation in accordance with the authority.
History
Reg 6.22(4) amended by FRLI No F2017L00321, reg 4 and Sch 8 item 18, by substituting para (a), applicable in relation to release authorities given to superannuation providers on or after 1 July 2018. Para (a) formerly read:
(a)
the superannuation provider has received a release authority in respect of the member under:
(i)
section 292-410 or 292-420 of the 1997 Tax Act; or
(ii)
section 96-10, 135-40 or 135-45 in Schedule 1 to the Taxation Administration Act 1953; and
Reg 6.22(4) amended by SLI No 278 of 2013, reg 4 and Sch 1 item 28, by substituting para (a), effective 17 December 2013. Para (a) formerly read:
(a)
the trustee has received a release authority under section 292-410 or 292-420 of the Income Tax Assessment Act 1997 in respect of the member; and
Reg 6.22(4) amended by SLI No 203 of 2012, reg 3 and Sch 1 item 2, by inserting "or 292-420" after "292-410" in para (a), effective 21 August 2012.
Reg 6.22(4) inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 55, effective 1 July 2007.
6.22(5)
The conditions of this subregulation are satisfied if the member's benefits are cashed in favour of the Commissioner of Taxation to pay an amount to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 6.22(5) substituted by SLI No 15 of 2009, reg 3 and Sch 1 item 12, effective 7 February 2009. Reg 6.22(5) formerly read:
6.22(5)
The conditions of this subregulation are satisfied if the member's benefits are paid to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999.
Reg 6.22(5) inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 33, effective 18 December 2008.
6.22(6)
This regulation 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 |
History
Reg 6.22(6) inserted by SLI No 146 of 2011, reg 3 and Sch 1 item 6, effective 9 August 2011.
REGULATION 6.22A
PRIORITY IN CASHING BENEFITS IN CERTAIN CASES - REGULATED SUPERANNUATION FUNDS
6.22A(1)
[Cashing restriction in condition of release]
This regulation applies to a trustee of a regulated superannuation fund if:
(a)
a member of the fund has satisfied a condition of release; and
(b)
there is a cashing restriction (other than a 'nil' restriction) in respect of that condition.
6.22A(2)
[Order of priority]
In cashing benefits in accordance with the restriction, the trustee must give priority to benefits in the following order:
(a)
first - to unrestricted non-preserved benefits;
(b)
second - to restricted non-preserved benefits;
(c)
third - to preserved benefits.
History
Reg 6.22A inserted by SR No 189 of 1994.
REGULATION 6.22B
6.22B
WHEN BENEFITS IN REGULATED SUPERANNUATION FUNDS MAY BE CASHED IN FAVOUR OF PERSONS EXCEPT MEMBERS
A member's benefits in a regulated superannuation fund may be cashed in favour of a person other than the member if:
(a)
the cashing is expressly permitted by the Regulator in a written approval for the purposes of subparagraph 62(1)(b)(v) of the Act; and
(b)
the benefits are cashed only to the extent of that approval.
History
Reg 6.22B amended by SR No 239 of 1999 and SR No 193 of 1998; inserted by SR No 117 of 1997.
Subdivision 6.3.2 - Approved deposit funds
REGULATION 6.23
VOLUNTARY CASHING OF PRESERVED BENEFITS IN APPROVED DEPOSIT FUNDS
6.23(1)
[Conditions for cashing benefits]
Subject to regulation 6.27, a member's preserved benefits in an approved deposit fund may be cashed on or after the satisfaction by the member of a condition of release.
Note:
For conditions of release for temporary residents, see regulation 6.01B.
History
Reg 6.23(1) amended by SLI No 282 of 2008, reg 4 and Sch 2 item 5, by inserting the note at the end, effective 1 April 2009.
6.23(2)
[Amount that may be cashed]
The amount of preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the amount of:
(a)
the preserved benefits of the member that had accrued at the time when the member satisfied the condition of release; and
(b)
before 1 July 1999 - any investment earnings accruing on those benefits from the time when the member satisfied the condition of release.
History
Reg 6.23(2) amended by SR No 175 of 1998.
6.23(3)
[Form in which benefits may be cashed]
Subject to subregulation (4), the form in which preserved benefits may be cashed under this regulation is:
(a)
the form (if any) specified in the cashing restriction for preserved benefits set out in Schedule 1 in relation to the relevant condition of release; or
(b)
if that cashing restriction is 'Nil' - a lump sum or 2 or more lump sums.
6.23(4)
[Benefits cashed in a lump sum]
A lump sum mentioned in paragraph (3)(b) must be payable not later than the time for the payment of a lump sum mentioned in subregulation 6.25(2).
REGULATION 6.24
VOLUNTARY CASHING OF UNRESTRICTED NON-PRESERVED BENEFITS IN APPROVED DEPOSIT FUNDS
6.24(1)
[Benefits may be cashed at any time]
Subject to regulation 6.27, a member's unrestricted non-preserved benefits in an approved deposit fund may be cashed at any time.
6.24(2)
[Amount that may be cashed]
The amount of unrestricted non-preserved benefits that may be cashed in accordance with subregulation (1) is the whole or part of the member's unrestricted non-preserved benefits in the fund.
6.24(3)
[Form in which benefits may be cashed]
Subject to subregulation (4), the form in which unrestricted non-preserved benefits may be cashed under this regulation is a lump sum or 2 or more lump sums.
6.24(4)
[Benefits cashed in a lump sum]
A lump sum mentioned in subregulation (3) must be payable not later than the time for the payment of a lump sum mentioned in subregulation 6.25(2).
REGULATION 6.24A
COMPULSORY CASHING OF BENEFITS IN APPROVED DEPOSIT FUNDS - TEMPORARY RESIDENTS
6.24A(1)
This regulation applies to a member's benefits in an approved deposit fund if:
(a)
the member:
(i)
was a temporary resident; and
(ii)
is not an Australian citizen, New Zealand citizen or permanent resident; and
(iii)
has left Australia; and
(b)
the member's visa has ceased to be in effect.
History
Reg 6.24A(1) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 13, by substituting para (a)(iii), effective 7 February 2009. Para (a)(iii) formerly read:
(iii)
has departed from Australia; and
Reg 6.24A(1) substituted by SLI No 282 of 2008, reg 3 and Sch 1 item 34, effective 18 December 2008. Reg 6.24A(1) formerly read:
6.24A(1)
A member's benefit in an approved deposit fund must be cashed if:
(a)
the trustee of the fund receives a request from the member; and
(b)
subregulation (2) or (3) is complied with.
6.24A(1A)
The member's benefits must be cashed if:
(a)
the trustee of the fund receives a request from the member that the benefits be cashed; and
(b)
subregulation (2) or (3) is complied with.
History
Reg 6.24A(1A) inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 34, effective 18 December 2008.
6.24A(2)
If the member's withdrawal benefit in the fund is less than $5 000, the trustee of the fund must receive:
(a)
a copy, or other evidence, of a visa showing that the member was a temporary resident but the member's temporary visa has ceased to be in effect; and
(b)
a copy of the member's passport showing that the member has left Australia.
History
Reg 6.24A(2) amended by FRLI No F2025L00307, reg 4 and Sch 1 item 44, by repealing the note, effective 8 March 2025. The note formerly read:
Note:
For the ways of giving evidence of a visa, see regulation 2.17 of the Migration Regulations 1994.
Reg 6.24A(2) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 14, by substituting "the member has left Australia" for "the member has departed from Australia" in para (b), effective 7 February 2009.
Reg 6.24A(2) amended by SLI No 282 of 2008, reg 3 and Sch 1 item 35, by substituting para (a), effective 18 December 2008. Para (a) formerly read:
(a)
a copy of a visa, or evidence of a visa, showing that the member was the holder of an eligible temporary resident visa that has expired or that has been cancelled; and
6.24A(3)
The trustee of the fund must be satisfied, based on a written statement from the Immigration Department, that:
(a)
the member was a temporary resident but the member's temporary visa has ceased to be in effect; and
(b)
the member has left Australia.
History
Reg 6.24A(3) amended by FRLI No F2017L00321, reg 4 and Sch 8 item 24, by substituting "Immigration Department" for "Department of Immigration and Citizenship", effective 28 March 2017.
Reg 6.24A(3) amended by SLI No 15 of 2009, reg 3 and Sch 1 item 15, by substituting para (b), effective 7 February 2009. Para (b) formerly read:
(b)
the member has departed from Australia.
Reg 6.24A(3) substituted by SLI No 282 of 2008, reg 3 and Sch 1 item 36, effective 18 December 2008. Reg 6.24A(3) formerly read:
6.24A(3)
The trustee of the fund must be satisfied, based on a written statement from the Department of Immigration and Multicultural and Indigenous Affairs, that:
(a)
the member was the holder of an eligible temporary resident visa that has expired or has been cancelled; and
(b)
the member has permanently departed from Australia.
Former reg 6.24A(3) amended by SR No 42 of 2003, reg 3 and Sch 1 item 6, by substituting "The trustee" for "If the member's withdrawal benefit in the fund is at least $5,000, the trustee", effective 27 March 2003.
6.24A(3A)
For subregulation (3), the statement may be in electronic form.
History
Reg 6.24A(3A) inserted by SR No 42 of 2003, reg 3 and Sch 1 item 7, effective 27 March 2003.
6.24A(4)
The benefits must be cashed in the period mentioned in subregulation (5):
(a)
as a single lump sum that is at least the amount of the member's withdrawal benefit in the fund; or
(b)
if the fund receives any combination of transfers and rollovers after cashing the benefits:
(i)
in a way that ensures that an amount that is at least the amount of the member's withdrawal benefit in the fund is cashed; and
(ii)
without requiring an additional application from the member.
6.24A(5)
For subregulation (4), the period is:
(a)
if the trustee of the fund receives a request from the member not later than 31 October 2002 - 3 months after the request is lodged; and
(b)
in any other case - 28 days after the request is lodged.
Note:
A payment made under this regulation is a
departing Australia superannuation payment
within the meaning of section 301-170 of the 1997 Tax Act.
History
Reg 6.24A(5) amended by SLI No 282 of 2008, reg 3 and Sch 1 item 37, by substituting the note, effective 18 December 2008. The note formerly read:
Note:
A payment made under this regulation is a "departing Australia superannuation payment" within the meaning of subsection 995-1(1) of the 1997 Tax Act.
Reg 6.24A(5) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 56, by substituting the note, effective 1 July 2007. The note formerly read:
Note:
A payment made under this regulation is a "departing Australia superannuation payment" for the purposes of the Income Tax Assessment Act 1936.
Reg 6.24A inserted by SR No 91 of 2002.
REGULATION 6.24B
6.24B
CASHING OF BENEFITS IN APPROVED DEPOSIT FUNDS - PAYMENT TO COMMISSIONER OF TAXATION
If the trustee of an approved deposit fund is required to pay an amount to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999, or chooses to pay an amount to the Commissioner of Taxation under Part 3D of that Act, for a person's superannuation interest in the fund, the amount must be cashed in favour of the Commissioner of Taxation as a lump sum.
Note: An amount required to be paid under the Superannuation (Unclaimed Money and Lost Members) Act 1999 must be paid by the time required under that Act.
History
Reg 6.24B amended by FRLI No F2021L00412, reg 4 and Sch 1 items 26 and 27, by inserting ", or chooses to pay an amount to the Commissioner of Taxation under Part 3D of that Act," and inserting "required" in the note, effective 2 April 2021.
Reg 6.24B amended by SLI No 15 of 2009, reg 3 and Sch 1 items 16 to 18 by substituting the heading, substituting "a person's superannuation interest" for "a member's superannuation interest" and substituting "a lump sum" for "a single lump sum", effective 7 February 2009.
Reg 6.24B inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 38, effective 18 December 2008.
REGULATION 6.25
COMPULSORY CASHING OF BENEFITS IN APPROVED DEPOSIT FUNDS
6.25(1)
[Death]
Subject to subregulation (3), a member's benefits in an approved deposit fund must be cashed as soon as practicable after the member dies.
History
Reg 6.25(1) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 57, effective 1 July 2007. Reg 6.25(1) formerly read:
6.25(1)
Subject to subregulation (3), a member's benefits in an approved deposit fund fund must be cashed as soon as practicable after the occurrence of any of the following events:
(a)
the member attains age 65;
(b)
the member dies.
Reg 6.25(1) amended by SR No 189 of 1994.
6.25(2)
[Form in which benefits may be cashed]
The form in which benefits may be cashed under this regulation is, in respect of each person to whom benefits are cashed:
(a)
a single lump sum; or
(b)
an interim lump sum (not exceeding the amount of the benefits ascertained at the date of an event mentioned in subregulation (1)) and a final lump sum (not exceeding the balance of the benefits as finally ascertained in relation to the event).
History
Reg 6.25(2) substituted by SR No 83 of 1998 and amended by SR No 189 of 1994.
6.25(3)
[Benefits rolled over]
Subregulation (1) is satisfied if, instead of being cashed, the benefits are rolled over as soon as practicable for immediate cashing.
History
Reg 6.25(3) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 58, effective 1 July 2007. Reg 6.25(3) formerly read:
6.25(3)
For the purposes of subregulation (1), it is sufficient if, instead of being cashed, the benefits are rolled over as soon as practicable:
(a)
in the case of a member who is gainfully employed on a full-time or part-time basis - to a regulated superannuation fund or to an EPSSS or an RSA, or for immediate cashing; or
(b)
in any other case - for immediate cashing.
Reg 6.25(3) amended by SR No 14 of 1999 and SR No 117 of 1997; inserted by SR No 189 of 1994.
REGULATION 6.26
LIMITATION ON CASHING OF BENEFITS IN APPROVED DEPOSIT FUNDS IN FAVOUR OF PERSONS OTHER THAN MEMBERS OR THEIR LEGAL PERSONAL REPRESENTATIVES
6.26(1)
Subject to this regulation and regulations 7A.13, 7A.17 and 7A.18, a member's benefits in an approved deposit fund must not be cashed in favour of a person other than the member or the member's legal personal representative unless:
(a)
the member has died; and
(b)
either:
(i)
the benefits are cashed in favour of the member's legal personal representative; or
(ii)
the trustee has not, after making reasonable enquiries, found a legal personal representative of the member; and
(c)
either:
(i)
the person in whose favour benefits are cashed is a dependant of the member; or
(ii)
if, after making reasonable enquiries, the trustee has not found a dependant of the member, the person in whose favour benefits are cashed is an individual.
History
Reg 6.26(1) amended by SLI 282 of 2008, reg 3 and Sch 1 item 39, by inserting "this regulation and" after "Subject to", effective 18 December 2008.
Reg 6.26(1) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 59, by substituting "(1) Subject to regulations 7A.13, 7A.17 and 7A.18," for "Subject to regulations 7A.13, 7A.17 and 7A.18,", effective 1 July 2007.
6.26(2)
A member's benefits in an approved deposit fund may be cashed if:
(a)
the superannuation provider has been issued a release authority in respect of the member under section 131-15 or 135-40 in Schedule 1 to the Taxation Administration Act 1953; and
(b)
the benefits are cashed in favour of the Commissioner of Taxation in accordance with the authority.
History
Reg 6.26(2) amended by FRLI No F2017L00321, reg 4 and Sch 8 item 18, by substituting para (a), applicable in relation to release authorities given to superannuation providers on or after 1 July 2018. Para (a) formerly read:
(a)
the superannuation provider has received a release authority in respect of the member under:
(i)
section 292-410 or 292-420 of the 1997 Tax Act; or
(ii)
section 96-10, 135-40 or 135-45 in Schedule 1 to the Taxation Administration Act 1953; and
Reg 6.26(2) amended by SLI No 278 of 2013, reg 4 and Sch 1 item 29, by substituting para (a), effective 17 December 2013. Para (a) formerly read:
(a)
the trustee has received a release authority under section 292-410 or 292-420 of the Income Tax Assessment Act 1997 in respect of the member; and
Reg 6.26(2) amended by SLI No 203 of 2012, reg 3 and Sch 1 item 3, by inserting "or 292-420" after "292-410" in para (a), effective 21 August 2012.
Reg 6.26(2) amended by SLI 282 of 2008, reg 3 and Sch 1 item 40, by substituting "A" for "In addition to subregulation (1), a", effective 18 December 2008.
Reg 6.26(2) inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 60, effective 1 July 2007.
Reg 6.26 amended by SR No 353 of 2001.
Reg 6.26 amended by SR No 189 of 1994.
6.26(3)
A member's benefits in an approved deposit fund may be cashed if the benefits are cashed in favour of the Commissioner of Taxation to pay an amount to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 6.26(3) substituted by SLI No 15 of 2009, reg 3 and Sch 1 item 19, effective 7 February 2009. Reg 6.26(3) formerly read:
6.26(3)
A member's benefits in an approved deposit fund may be cashed if the benefits are paid to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999.
Reg 6.26(3) inserted by SLI No 282 of 2008, reg 3 and Sch 1 item 41, effective 18 December 2008.
REGULATION 6.27
6.27
LIMITATION ON CASHING BENEFITS IN APPROVED DEPOSIT FUNDS OF LESS THAN $500
The trustee of an approved deposit fund must not cash an amount of a member's benefits in the fund that is less than $500 unless the purpose of cashing the amount is:
(a)
to close the member's account; or
(b)
to cash the amount under Division 131 or 135 in Schedule 1 to the Taxation Administration Act 1953, or section 292-80C of the Income Tax (Transitional Provisions) Act 1997, to give effect to a release authority in respect of the member; or
(c)
to pay an amount under the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 6.27 amended by FRLI No F2017L00321, reg 4 and Sch 8 item 19, by substituting para (b), applicable in relation to release authorities given to superannuation providers on or after 1 July 2018. Para (b) formerly read:
(b)
to cash the amount to give effect to a release authority under:
(i)
section 292-415 of the Income Tax Assessment Act 1997; or
(ia)
section 292-420 of the Income Tax Assessment Act 1997; or
(ii)
section 292-80C of the Income Tax (Transitional Provisions) Act 1997; or
(iii)
sections 96-20 and 96-25 in Schedule 1 to the Taxation Administration Act 1953; or
(iv)
section 135-75 in Schedule 1 to the Taxation Administration Act 1953;
in respect of the member; or
Reg 6.27 amended by SLI No 278 of 2013, reg 4 and Sch 1 item 30, by inserting para (b)(iii) and (iv), effective 17 December 2013.
Reg 6.27 amended by SLI No 203 of 2012, reg 3 and Sch 1 item 4, by inserting para (b)(ia), effective 21 August 2012.
Reg 6.27 amended by SLI No 282 of 2008, reg 3 and Sch 1 item 42-43, by substituting "the member; or" for "the member." in para (b) and inserting para (c), effective 18 December 2008.
Reg 6.27 substituted by SLI No 74 of 2007, reg 3 and Sch 1 item 16, effective 3 April 2007. Reg 6.27 formerly read:
REGULATION 6.27 LIMITATION ON CASHING BENEFITS IN APPROVED DEPOSIT FUNDS OF LESS THAN $500
6.27
The trustee of an approved deposit fund must not cash an amount of a member's benefits in the fund that is less than $500 except to close the member's account.
REGULATION 6.27A
PRIORITY IN CASHING BENEFITS IN CERTAIN CASES - APPROVED DEPOSIT FUNDS
6.27A(1)
[Cashing restriction in condition of release]
This regulation applies to a trustee of an approved deposit fund if:
(a)
a member of the fund has satisfied a condition of release; and
(b)
there is a cashing restriction (other than a 'nil' restriction) in respect of that condition.
6.27A(2)
[Order of priority]
In cashing benefits in accordance with the restriction, the trustee must give priority to benefits in the following order:
(a)
first - to unrestricted non-preserved benefits;
(b)
second - to preserved benefits.
History
Reg 6.27A inserted by SR No 189 of 1994.
Division 6.4 - General rules for rollover and transfer of benefits in regulated superannuation funds and approved deposit funds
Note: See also Parts 22 and 24 of the Act.
History
Div 6.4 heading substituted by SR No 251 of 2003, reg 3 and Sch 1 item 9, effective 1 July 2004. Div 6.4 heading formerly read:
Division 6.4 - Rollover and transfer of benefits in regulated superannuation funds and approved deposit funds
Note substituted by SR No 159 of 1995, reg 30.1, effective 1 July 1995. The Note formerly read: ``[NOTE: Rollovers are also permitted and required by provisions of Parts 22 and 24 of the Act.]''
REGULATION 6.27B
6.27B
DEFINITION
In this Division:
consent
means:
(a)
written consent; or
(b)
any other form of consent determined by the Regulator as sufficient in the circumstances.
History
Definition of "consent" amended by SR No 239 of 1999 and SR No 193 of 1998.
Reg 6.27B inserted by SR No 117 of 1997.
REGULATION 6.28
ROLLOVER - REGULATED SUPERANNUATION FUNDS AND APPROVED DEPOSIT FUNDS
6.28(1)
[Conditions allowing rollover]
Except as otherwise provided by the Act, the Corporations Act 2001, the Corporations Regulations 2001 or these regulations, a member's benefits in a regulated superannuation fund or an approved deposit fund must not be rolled over from the fund unless:
(a)
the member has given to the trustee the member's consent to the rollover; or
(b)
the trustee of the fund believes, on reasonable grounds, that:
(i)
the trustee of the regulated superannuation fund, the approved deposit fund or the EPSSS; or
(ii)
the RSA institution providing the RSA;
into which the benefits are to be rolled over has received, from the member, consent to the rollover.
6.28(2)
[Receiving fund]
The fund to which the money is to be rolled over must not be a registrable superannuation entity that:
(a)
is a regulated superannuation fund or an approved deposit fund; and
(b)
has not been registered under Part 2B of the Act.
History
Reg 6.28(2) amended by SLI No 113 of 2004, reg 3 and Sch 2 items 6 and 7, by substituting para (a) and repealing the note, effective 1 July 2006. Para (a) and the note formerly read:
(a)
is a regulated superannuation fund or an approved deposit fund:
(i)
that came into existence on or after the start of the licensing transitionperiod; and
(ii)
for which there is an RSE licensee; and
Note:
Licensing transition period
is defined in subsection 10(1) of the Act.
History
Reg 6.28 amended by SR No 113 of 2004, reg 3 and Sch 1 items 8 and 9, by renumbering reg 6.28 as 6.28(1) and inserting reg 6.28(2), effective 1 July 2004.
Reg 6.28 amended by SR No 21 of 2002, reg 3 and Sch 1 item 38, effective 11 March 2002, by inserting ", the Corporations Act 2001, the Corporations Regulations 2001" after "the Act".
Reg 6.28 amended by SR No 14 of 1999, SR No 117 of 1997 and SR No 159 of 1995; substituted by SR No 142 of 1995.
REGULATION 6.29
TRANSFER - FUNDS
6.29(1)
Except as otherwise provided by the Act, the Corporations Act 2001, the Corporations Regulations 2001 or these regulations, a member's benefits in a fund must not be transferred from the fund unless:
(a)
the member has given to the trustee the member's consent to the transfer; or
(b)
the trustee of the fund believes, on reasonable grounds, that:
(i)
the trustee of the fund or the EPSSS; or
(ii)
the RSA institution providing the RSA;
into which the benefits are to be transferred, has received, from the member, consent to the transfer; or
(ba)
in the case of an eligible rollover fund - the trustee of the fund believes, on reasonable grounds, that:
(i)
the member has a superannuation interest in the fund, an interest in the EPSSS, or an RSA interest in the RSA, into which the benefits are to be transferred; and
(ii)
the trustee of the fund or EPSSS, or the RSA institution providing the RSA, has received at least one contribution or rollover in respect of the member within the 12 month period ending when the transfer is to be made; or
(c)
the transfer is to a successor fund; or
(d)
for section 29SAA, 29SAB, 387, 388 or 394 of the Act the trustee of the fund is required by a prudential standard made under section 34C of the Act to transfer the benefits.
History
Reg 6.29(1) amended by FRLI No F2016L00710, reg 4 and Sch 1 item 2, by inserting para (ba), applicable to transfers of benefits made on or after 10 May 2016.
Reg 6.29(1) amended by SLI No 26 of 2013, reg 4 and Sch 3 item 4, by inserting para (d), effective 1July 2013.
6.29(1A)
Paragraph (1)(c) does not apply to a transfer to a successor fund that is an eligible rollover fund if the transfer takes place on or after the later of:
(a)
1 May 2021; and
(b)
the seventh day after Schedule 1 to the Treasury Laws Amendment (Reuniting More Superannuation) Act 2021 commences.
History
Reg 6.29(1A) inserted by FRLI No F2021L00412, reg 4 and Sch 1 item 28, effective 2 April 2021.
6.29(2)
The fund to which the money is to be transferred must not be a registrable superannuation entity that:
(a)
is a regulated superannuation fund or an approved deposit fund; and
(b)
has not been registered under Part 2B of the Act.
History
Reg 6.29(2) amended by SLI No 113 of 2004, reg 3 and Sch 2 items 8 and 9, by substituting para (a) and repealing the note, effective 1 July 2006. Para (a) and the note formerly read:
(a)
is a regulated superannuation fund or an approved deposit fund:
(i)
that came into existence on or after the start of the licensing transition period; and
(ii)
for which there is an RSE licensee; and
Note:
Licensing transition period
is defined in subsection 10(1) of the Act.
History
Reg 6.29 amended by SR No 113 of 2004, reg 3 and Sch 1 items 10 and 11, by renumbering reg 6.29 as reg 6.29(1) and inserting reg 6.29(2), effective 1 July 2004.
Reg 6.29 amended by SR No 21 of 2002, reg 3 and Sch 1 item 39, effective 11 March 2002, by inserting ", the Corporations Act 2001, the Corporations Regulations 2001" after "the Act".
Reg 6.29 amended by SR No 14 of 1999, SR No 117 of 1997 and SR No 159 of 1995; substituted by SR No 142 of 1995.
(Repealed) Division 6.4A - Certain beneficiaries at 30 June 1995
History
Div 6.4A repealed by SR No 14 of 1999 and inserted by SR No 159 of 1995.
6.29A
(Repealed) REGULATION 6.29A INTERPRETATION
(Repealed by SR No 14 of 1999)
History
Reg 6.29A inserted by SR No 159 of 1995.
6.29B
(Repealed) REGULATION 6.29B TRUSTEE OF FUND MAY APPLY ON BENEFICIARY'S BEHALF TO ELIGIBLE ROLLOVER FUND - CERTAIN BENEFICIARIES OF FUNDS ON 30 JUNE 1995
(Repealed by SR No 14 of 1999)
History
Reg 6.29B inserted by SR No 159 of 1995.
Division 6.5 - Compulsory rollover and transfer of superannuation benefits in regulated superannuation funds and approved deposit funds
History
Div 6.5 substituted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004. Div 6.5 formerly read:
Division 6.5 - Additional standards for eligible rollover funds
REGULATION 6.30 OBLIGATIONS OF TRUSTEES
6.30(1)
The trustee of an eligible rollover fund must comply, as soon as practicable, with a request by a member:
(a)
to pay benefits of the member in the fund; or
(b)
for payment of any benefit to be in the form of a lump sum.
6.30(2)
(Omitted by SR No 64 of 1995)
Reg 6.30(2) amended by SR No 189 of 1994.
REGULATION 6.30
APPLICATION
6.30(1)
This Division applies:
(a)
to a regulated superannuation fund, other than a fund mentioned in paragraph (2)(a); and
(b)
to an approved deposit fund.
History
Reg 6.30(1) amended by FRLI No F2018L01373, reg 4 and Sch 2 item 1, by omitting "or (b)" after "paragraph (2)(a)" from para (a), effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019.
6.30(2)
This Division does not apply:
(a)
to an unfunded public sector superannuation scheme; and
(b)
(Repealed by FRLI No F2018L01373)
(c)
in respect of a defined benefit component of a superannuation interest in a defined benefit fund, if the member who holds the interest is an employee of an employer-sponsor of the fund; and
(d)
to benefits that are being paid as a pension (other than an account-based pension, allocated pension or market linked pension).
History
Reg 6.30(2) amended by FRLI No F2018L01373, reg 4 and Sch 2 item 2, by repealing para (b), effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019. Para (b) formerly read:
(b)
to a self-managed superannuation fund; and
Reg 6.30(2) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 1, by substituting "account-based pension, allocated pension or market linked pension" for "allocated pension", effective 19 February 2013.
6.30(3)
(Repealed by SLI No 142 of 2005)
History
Reg 6.30(3) repealed by SLI No 142 of 2005, reg 3 and Sch 1 item 1, effective 1 July 2005. Reg 6.30(3) formerly read:
6.30(3)
This Division does not apply in respect of a member who holds a superannuation interest in a superannuation fund at a particular time if, in the 6 months before that time, the fund has received an employer contribution, or an allocated surplus amount, for the benefit of the member.
Reg 6.30(3) amended by SR No 153 of 2004, reg 3 and Sch 2 item 1, by inserting ", or an allocated surplus amount," after "employer contribution", effective 1 July 2004.
6.30(4)
(Repealed by SLI No 142 of 2005)
History
Reg 6.30(4) repealed by SLI No 142 of 2005, reg 3 and Sch 1 item 1, effective 1 July 2005. Reg 6.30(4) formerly read:
6.30(4)
In this regulation:
allocated surplus amount
, in relation to a member of a superannuation fund in relation to a financial year, means an amount that is allocated by the relevant superannuation provider for the benefit of the member in respect of the financial year (other than an amount paid for or by the member to the provider) to the extent to which the allocated amount exceeds an amount that, in the opinion of an eligible actuary according to Australian actuarial practice, is reasonable having regard to:
(a)
the amounts paid by or for the member to the provider; and
(b)
the fund's investment earnings relating to the member's interest in the fund; and
(c)
any other relevant matters.
Reg 6.30(4) inserted by SR No 153 of 2004, reg 3 and Sch 2 item 2, effective 1 July 2004.
Reg 6.30 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004. For former wording of former reg 6.30, see note under Div 6.5 heading.
REGULATION 6.31
DEFINITIONS FOR DIVISION 6.5
Defined benefit component
6.31(1)
[
defined benefit component
]
Subject to subregulation (2), a
defined benefit component
of a superannuation interest is a component of the interest in which the benefits are defined by reference to 1 or more of the following:
(a)
the amount of:
(i)
the member's salary at the date of the termination of the member's employment, the date of the member's retirement, or another date; or
(ii)
the member's salary averaged over a period; or
(iii)
salary, or allowance in the nature of salary, payable to another person (for example, a judicial officer, a member of the Commonwealth or a State Parliament, a member of the Legislative Assembly of a Territory);
(b)
a specified amount;
(c)
specified conversion factors.
6.31(2)
[Death or disability]
A component of a superannuation interest is not a defined benefit component if the only benefits defined by reference to any of the amounts or factors mentioned in subregulation (1) are benefits payable on death or disability.
Illiquid investment
6.31(3)
["illiquid investment"]
An investment is an
illiquid investment
in relation to a member's interest in a superannuation fund if it is of a nature that produces either of the following outcomes:
(a)
it cannot be converted to cash in less than the time required to rollover or transfer a withdrawal benefit under subregulation 6.34(3) or regulation 6.34A;
(b)
converting it to cash within the time period specified in subregulation 6.34(3) or regulation 6.34A would be likely to have a significant adverse impact on the realisable value of the investment.
History
Reg 6.31(3) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 2, by substituting "subregulation 6.34(3) or regulation 6.34A" for "subregulation 6.34(5)" wherever occurring, effective 19 February 2013.
Reg 6.31(3) inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 62, effective 1 July 2007.
Reg 6.31 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.32
6.32
SUPERANNUATION DATA AND PAYMENT MATTERS
For subsection 34K(1) of the Act, regulations 6.33 to 6.38 prescribe matters to be complied with.
History
Reg 6.32 substituted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013. Reg 6.32 formerly read:
REGULATION 6.32 OPERATING STANDARDS
6.32(1)
For subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds.
6.32(2)
For subsection 32(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of approved deposit funds.
Reg 6.32 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.33
REQUEST FOR ROLLOVER OR TRANSFER OF WITHDRAWAL BENEFIT
6.33(1)
A member of a regulated superannuation fund or approved deposit fund (the
transferring fund
) may request, in writing, that the whole or a part of the member's withdrawal benefit in the transferring fund be rolled over or transferred to any of the following (the
receiving fund
):
(a)
a regulated superannuation fund;
(b)
an approved deposit fund;
(c)
an RSA provider.
Note:
A member may also request that his or her withdrawal benefit be rolled over or transferred to an EPSSS.
6.33(2)
The member:
(a)
may make the request to the transferring fund or the receiving fund; and
(b)
if the request is to rollover or transfer an amount that is the whole of the member's withdrawal benefit - may use the approved form to make the request.
History
Reg 6.33(2) amended by FRLI No F2018L01373, reg 4 and Sch 2 items 3 and 4, by substituting "The" for "If the receiving fund is not a self managed superannuation fund, the" and "may use the approved form to make the request" for "may usethe form specified in Schedule 2A to make the request" in para (b), effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019.
6.33(3)
(Repealed by FRLI No F2018L01373)
History
Reg 6.33(3) repealed by FRLI No F2018L01373, reg 4 and Sch 2 item 5, effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019. Reg 6.33(3) formerly read:
6.33(3)
If the receiving fund is a self managed superannuation fund, the member:
(a)
must make the request to the transferring fund; and
(b)
if the request is to rollover or transfer an amount that is the whole of the member's withdrawal benefit - may use the form specified in Schedule 2B to make the request.
Note:
The forms in Schedules 2A and 2B deal with information about tax file numbers that is required in accordance with Part 25A of the Act, and approvals under that Part.
History
Reg 6.33 substituted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013. Reg 6.33 formerly read:
REGULATION 6.33 REQUEST FOR ROLLOVER OR TRANSFER OF WITHDRAWAL BENEFIT
Request from member
6.33(1)
A member of a regulated superannuation fund or an approved deposit fund may, in writing, ask the trustee of the fund to roll over or transfer an amount that is the whole or part of the member's withdrawal benefit.
6.33(2)
A request under subregulation (1) to roll over or transfer an amount that is the whole of the member's withdrawal benefit may be made:
(a)
using the form specified in Schedule 2A; or
(b)
in another manner.
6.33(3)
A request under subregulation (1) to roll over or transfer an amount that is part of the member's withdrawal benefit may include:
(a)
the information that would be required by the form specified in Schedule 2A; and
(b)
any other information that is reasonably required by the trustee of the fund to process the request.
Note:
The form in Schedule 2A deals with information about tax file numbers that is required in accordance with Part 25A of the Act, and approvals under that Part.
It is recommended that applicants use the form of request in Schedule 2A to allow trustees to roll over or transfer whole balance amounts as quickly and efficiently as possible. Making the request in another way may require a trustee to seek further information from the member under regulation 6.33A.
Request through Commissioner of Taxation
6.33(4)
The Commissioner of Taxation, under the scheme established under Part 6A, may give to the trustee of a regulated superannuation fund or an approved deposit fund a request made by a member to roll over or transfer an amount that is the whole of the member's withdrawal benefit.
Reg 6.33 substituted by SLI No 14 of 2013, reg 3 and Sch 1 item 3, effective 19 February 2013. Reg 6.33 formerly read:
REGULATION 6.33 REQUEST FOR ROLLOVER OR TRANSFER OF WITHDRAWAL BENEFIT
6.33(1)
A member of a regulated superannuation fund or an approved deposit fund may, in writing, ask the trustee of the fund to roll over or transfer an amount that is the whole or part of the member's withdrawal benefit.
6.33(2)
If the trustee of the fund requires further information that is mandatory information in the form in Schedule 2A (whether or not the request is made using the form):
(a)
the trustee must, within 10working days after receiving the request, ask the member for the information; and
(b)
if the trustee has not received the information within 10 working days after making the request, the trustee must make reasonable further inquiries of the member to obtain the information.
Note: If a request does not include all of the mandatory information in the form in Schedule 2A (whether or not the request is made using the form) the trustee may still roll over or transfer the amount without asking for the rest of the mandatory information.
History
Reg 6.33(2), (3) and (4) substituted for reg 6.33(2) by SLI No 74 of 2007, reg 5 and Sch 3 item 63, effective 1 July 2007. Reg 6.33(2) formerly read:
6.33(2)
If the trustee of a fund requires further information in relation to the request, the trustee must, as soon as practicable after receiving the request, ask the member for the information.
6.33(3)
If the trustee of the fund requires further information in relation to a request for a partial transfer:
(a)
the trustee must, within 10 working days after receiving the request, ask the member for the information; and
(b)
if the trustee has not received the information within 10 working days after making the request, the trustee must make reasonable further inquiries of the member to obtain the information.
History
Reg 6.33(2), (3) and (4) substituted for reg 6.33(2) by SLI No 74 of 2007, reg 5 and Sch 3 item 63, effective 1 July 2007.
6.33(4)
If the trustee of the fund requires the information under subregulation 6.34(3):
(a)
the trustee must, within 10 working days after receiving the request, ask the member for the information; and
(b)
if the trustee has not received the information within 10 working days after making the request, the trustee must make reasonable further inquiries of the member to obtain the information.
History
Reg 6.33(2), (3) and (4) substituted for reg 6.33(2) by SLI No 74 of 2007, reg 5 and Sch 3 item 63, effective 1 July 2007.
Reg 6.33 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.33A
ACTION BY RECEIVING FUND ON RECEIPT OF REQUEST
6.33A(1)
This regulation applies to the trustee of a fund (the
receiving fund
) if the receiving fund receives a written request from a member to roll over or transfer, to the receiving fund, the whole or part of the member's:
(a)
withdrawal benefit from a regulated superannuation fund or approved deposit fund; or
(b)
withdrawal benefit in an RSA provided by an RSA provider.
History
Reg 6.33A(1) substituted by SLI No 61 of 2013, reg 4 and Sch 2 item 6, effective 1 July 2013. Reg 6.33A(1) formerly read:
6.33A(1)
This regulation applies to the trustee of a fund (the
receiving fund
) if the receiving fund receives a written request from a member to rollover or transfer the whole or part of the member's withdrawal benefit from a regulated superannuation fund, approved deposit fund or RSA provider (the
transferring fund
) to the receiving fund.
6.33A(2)
The trustee of the receiving fund must tell the regulated superannuation fund, approved deposit fund or RSA provider (the
transferring fund
) about the request and give the following details to the transferring fund:
(a)
the member's full name;
(b)
the member's date of birth;
(c)
the member's sex;
(d)
the member's residential address;
(e)
the member's membership number, or account number, with the transferring fund;
(f)
the receiving fund's name and ABN;
(g)
the receiving fund's unique superannuation identifier for the rollover or transfer;
(h)
the transferring fund's name and ABN;
(i)
the transferring fund's unique superannuation identifier or unique RSA identifier for the rollover or transfer.
History
Reg 6.33A(2) amended by SLI No 61 of 2013, reg 4 and Sch 2 items 7-8, by substituting "The trustee of the receiving fund must tell the regulated superannuation fund, approved deposit fund or RSA provider (the
transferring fund
) about the request and give the following details to the transferring fund:" for "The trustee must tell the transferring fund about the request and give the following details to the transferring fund:" and inserting "or unique RSA identifier" in para (i), effective 1 July 2013.
6.33A(3)
However, subsection (2) does not apply if the trustee does not have all of the details mentioned in subsection (2).
6.33A(4)
The trustee must also tell the transferring fund:
(a)
whether the request is to rollover or transfer the whole or a part of the member's withdrawal benefit; and
(b)
if the request is to rollover or transfer a part of the member's withdrawal benefit - the amount to be rolled over or transferred.
6.33A(5)
The trustee must also give the tax file number to the transferring fund, unless, before the rollover or transfer, the member gives the trustee a written statement requesting the trustee not to inform any RSA provider or any other trustee of the member's tax file number.
Note:
Standards made under subsection 34K(3) of the Act may set out how the information in subregulations (2) and (4) is to be given to the transferring fund (for example, electronically), and may set out additional information that must be given.
6.33A(6)
Before the trustee gives the information to the transferring fund, the trustee must reasonably believe that the member:
(a)
is aware that the member may ask the trustee of the transferring fund for information that the member reasonably requires for the purpose of understanding any benefit entitlements that the member may have, including:
(i)
information about any fees or charges that may apply to the proposed rollover or transfer; and
(ii)
information about the effect of the proposed rollover or transfer on any benefit entitlements the member may have; and
(b)
either:
(i)
has obtained any information the member reasonably requires; or
(ii)
does not require such information.
Note:
Under section 1017C of the Corporations Act 2001, a trustee of a fund must, on request by a member of the fund, give the member the information and documents mentioned in subsections 1017C(3) and (5). See also regulations 7.9.02, 7.9.45 and 7.9.47 of the Corporations Regulations 2001.
History
Reg 6.33A substituted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013. Reg 6.33A formerly read:
REGULATION 6.33A TRUSTEE MAY REQUEST INFORMATION OR DOCUMENTATION
General
6.33A(1)
If:
(a)
a trustee of a fund requires further information to roll over or transfer a withdrawal benefit after receiving a request under regulation 6.33; and
(b)
the request relates to the whole transfer of the member's withdrawal benefit; and
(c)
the trustee requires further information that is mandatory information in the form in Schedule 2A;
the trustee must ask the member for the mandatory information within 10 working days after receiving the request.
6.33A(2)
If:
(a)
a trustee of a fund requires further information to roll over or transfer a withdrawal benefit after receiving a request under regulation 6.33; and
(b)
the request relates to the partial transfer of the member's withdrawal benefit; and
(c)
the trustee requires further information that is reasonably required to process the request;
the trustee must ask the member for the information within 10 working days after receiving the request.
6.33A(3)
If the trustee does not receive the information requested under subregulation (1) or (2) within 10 working days after making the request, the trustee must make reasonable further inquiries of the member to obtain the information.
Note:
If a request under regulation 6.33 does not include all of the mandatory information in the form in Schedule 2A (whether or not the request is made using the form) the trustee may still roll over or transfer the amount without asking for the rest of the mandatory information.
Transfers to a self managed superannuation fund
6.33A(4)
If:
(a)
a request under regulation 6.33 is made by a member (
member 1
) to roll over or transfer an amount that is the whole or part of the member's withdrawal benefit to a self managed superannuation fund; and
(b)
the trustee of the transferring superannuation fund is aware that:
(i)
another request has been made to roll over or transfer an amount to the same self managed superannuation fund; and
(ii)
the other request was made by another member who is not a relative of member 1, within the meaning of subsection 17A(9) of the Act; and
(iii)
the other request:
(A)
has been processed; or
(B)
is currently with the trustee of the transferring superannuation fund to be processed;
the trustee may require member 1 to provide with the request a copy of documentation, complying with the requirements of certification in the form in Schedule 2A, that shows that member 1 is a member or trustee of the self managed superannuation fund before the trustee processes member 1's request.
Examples of documents showing that a member is a member or trustee of a self managed superannuation fund
1 A trust deed.
2 The member's contribution statement.
3 The annual return of the self managed superannuation fund.
6.33A(5)
If a trustee of a fund requires a copy of documentation under subregulation (4):
(a)
the trustee must, within 10 working days after receiving the request under regulation
6.33, ask the member for a copy of the documentation; and
(b)
if the trustee has not received a copy of the documentation within 10 working days after making the request, the trustee must make reasonable further inquiries of the member to obtain a copy of the documentation.
Reg 6.33A inserted by SLI No 14 of 2013, reg 3 and Sch 1 item 3, effective 19 February 2013.
REGULATION 6.33B
TRANSFERRING FUND MUST ELECTRONICALLY RECEIVE REQUEST
6.33B(1)
This regulation applies to a regulated superannuation fund or approved deposit fund (the
transferring fund
) if a member of the fund makes a request for the whole or part of the member's withdrawal benefit in the transferring fund to be rolled over or transferred to another regulated superannuation fund, approved deposit fund or RSA provider (the
receiving fund
).
6.33B(2)
The transferring fund must be able to electronically receive information in relation to the rollover or transfer sent to the transferring fund:
(a)
by the receiving fund, in accordance with regulation 6.33A and any applicable Standards made under subsection 34K(3) of the Act; or
(b)
by the receiving fund in accordance with any applicable Standards made under subsection 45B(3) of the RSA Act; or
(c)
by the member, in accordance with any Standards made under subsection 34K(3) of the Act or subsection 45B(3) of the RSA Act that apply in relation to requests for rollovers or transfers of withdrawal benefits; or
(d)
by the Commissioner of Taxation under regulation 6A.03.
History
Reg 6.33B inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.33C
TRUSTEE MAY REQUEST INFORMATION IF NOT PROVIDED
6.33C(1)
Subregulation (2) applies if:
(a)
a trustee of a regulated superannuation fund or approved deposit fund (the
transferring fund
) receives:
(i)
a request to roll over or transfer a member's withdrawal benefit to another regulated superannuation fund or approved deposit fund, an RSA provider or an EPSSS; or
(ii)
the information mentioned in subregulation 6.33A(2) from a receiving fund; and
(b)
the request is to rollover or transfer the whole of the member's withdrawal benefit; and
(c)
the trustee requires further information in order to process the request; and
(d)
the further information is information in the approved form referred to in paragraph 6.33(2)(b).
Note:
If a request does not include all of the information in the approved form (whether or not the request is made using the form) the trustee may still roll over or transfer the amount without asking for the rest of the information.
History
Reg 6.33C(1) amended by FRLI No F2018L01373, reg 4 and Sch 2 item 6, by substituting para (d), effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019. Para (d) formerly read:
(d)
one of the following applies:
(i)
for a request to rollover or transfer to a self managed superannuation fund - the further information is mandatory information in the form in Schedule 2B;
(ii)
in any other case - the further information is mandatory information in the form in Schedule 2A.
Note:
If a request does not include all of the mandatory information in the form in Schedule 2A or 2B (whether or not the request is made using the form) the trustee may still roll over or transfer the amount without asking for the rest of the mandatory information.
6.33C(2)
The trustee must ask the member for the information not later than 5 business days after receiving the request.
History
Reg 6.33C(2) amended by FRLI No F2018L01373, reg 4 and Sch 2 item 7, by omitting "mandatory" after "must ask the member for the", effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019.
6.33C(3)
If:
(a)
a trustee of a transferring fund receives:
(i)
a request to roll over or transfer a member's withdrawal benefit to another regulated superannuation fund or approved deposit fund, an RSA provider or an EPSSS; or
(ii)
the information mentioned in subregulation 6.33A(2) from a receiving fund; and
(b)
the request is to rollover or transfer part of the member's withdrawal benefit; and
(c)
the trustee requires further information that is necessary to process the request;
the trustee must ask the member for the information not later than 5 business days after receiving the request.
6.33C(4)
If the trustee does not receive the information requested in subregulation (2) or (3) not later than 10 business days after making the request, the trustee must make reasonable further inquiries of the member to obtain the information.
History
Reg 6.33C inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.33D
VALIDATION OF MEMBER'S DETAILS BY TRANSFERRING FUND
6.33D(1)
Subregulation (2) applies to the trustee of a regulated superannuation fund or approved deposit fund (the
transferring fund
) if:
(a)
the transferring fund receives:
(i)
a request under regulation 6.33 to rollover or transfer the whole or a part of a member's withdrawal benefit from the transferring fund to another regulated superannuation fund or approved deposit fund, or an RSA provider; or
(ii)
a request to rollover or transfer the whole or a part of a member's withdrawal benefit from the transferring fund to an EPSSS; and
(b)
the request was not given to the trustee by the Commissioner of Taxation; and
(c)
the transferring fund has the member's tax file number.
History
Reg 6.33D(1) amended by FRLI No F2018L01373, reg 4 and Sch 2 item 8, by omitting "(other than a self managed superannuation fund)" after "another regulated superannuation fund" from para (a)(i), effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019.
6.33D(2)
The trustee of the transferring fund must ask the Commissioner of Taxation, using an electronic interface provided by the Commissioner, for a notice under subsection 299TD(2) of the Act in relation to the member.
6.33D(3)
However, subregulation (2) does not apply if the Commissioner has previously given the trustee a notice under subsection 299TD(2) of the Act stating that the Commissioner was able to validate the member's information given by the trustee.
6.33D(4)
The trustee may ask the member for any proof of identity information in the approved form referred to in paragraph 6.33(2)(b) that the trustee reasonably requires to process the request if:
(a)
the Commissioner of Taxation gives the trustee a notice under subsection 299TD(2) of the Act stating that the Commissioner is not able to validate the information mentioned in subsection (2); or
(b)
the trustee does not have the member's tax file number.
History
Reg 6.33D(4) amended by FRLI No F2018L01373, reg 4 and Sch 2 item 9, by substituting "in the approved form referred to in paragraph 6.33(2)(b)" for "on the form in Schedule 2B", effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019.
6.33D(5)
The trustee must ask for the proof of identity information under subregulation (4) not later than:
(a)
for a trustee to whom paragraph (4)(a) applies - 5 business days after receiving the Commissioner's notice; and
(b)
for a trustee to whom paragraph (4)(b) applies - 5 business days after receiving the request to rollover or transfer the whole or a part of the member's withdrawal benefit.
History
Reg 6.33D(5) amended by SLI No 61 of 2013, reg 4 and Sch 2 item 9, by substituting "5 business days" for "5 days" in para (b), effective 1 July 2013.
6.33D(6)
If the trustee does not receive the information requested under subregulation (4) within 10 business days after making the request, the trustee must make reasonable further inquiries of the member to obtain the information.
History
Reg 6.33D(6) amended by SLI No 61 of 2013, reg 4 and Sch 2 item 10, by substituting "within" for "not later than", effective 1 July 2013.
History
Reg 6.33D inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.33E
VERIFICATION OF SELF MANAGED SUPERANNUATION FUND AND MEMBER'S DETAILS
6.33E(1)
This regulation applies to the trustee of a regulated superannuation fund or approved deposit fund (the
transferring fund
) if the transferring fund receives a request under regulation 6.33 to rollover or transfer the whole or a part of a member's withdrawal benefit from the transferring fund to a self managed superannuation fund (the
receiving fund
).
6.33E(2)
The trustee of the transferring fund must:
(a)
use an electronic service provided by the Australian government to verify:
(i)
the ABN and name of the receiving fund; and
(ii)
that the receiving fund is a regulated superannuation fund; and
(iii)
at least one unique superannuation identifier (within the meaning of Part 3B) for the receiving fund; and
(iv)
for each unique superannuation identifier - one set of bank details that is sufficient to enable an electronic payment to be made; and
(v)
for each unique superannuation identifier - either one internet protocol address, or one other kind of digital address approved by the Commissioner for the receipt of electronic communications; and
(b)
use an electronic service provided by the Commissioner of Taxation to validate that the member is a member of the receiving fund.
History
Reg 6.33E(2) amended by FRLI No F2018L01373, reg 4 and Sch 2 item 10, by inserting para (a)(iii), (iv) and (v), effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019.
6.33E(3)
If the trustee is unable to verify the information mentioned in paragraph (2)(a) or is unable to validate the information mentioned in paragraph (2)(b), using the electronic service, the trustee must ask the Commissioner of Taxation to verify or validate the information.
History
Reg 6.33E(3) amended by SLI No 127 of 2014, reg 4 and Sch 1 item 1, by substituting "Commissioner of Taxation to verify or validate the information" for all the words after "ask the", effective 27 August 2014. The words formerly read:
member for written evidence to verify:
(a)
the name of the receiving fund; and
(b)
that the receiving fund is a regulated superannuation fund; and
(c)
that the member is a member of the receiving fund.
6.33E(4)
The trustee must make the request under subregulation (3) not later than 5 business days after the trustee has been unable to verify or validate the information under subsection (2).
History
Reg 6.33E(4) amended by SLI No 127 of 2014, reg 4 and Sch 1 item 2, by substituting "make the request" for "ask for the evidence", effective 27 August 2014.
6.33E(5)
If the Commissioner of Taxation is unable to verify or validate the information, the trustee must, within 10 days of being advised of that by the Commissioner, tell the member of the outcome of the Commissioner's enquiries.
History
Reg 6.33E(5) substituted by SLI No 127 of 2014, reg 4 and Sch 1 item 3, effective 27 August 2014. Reg 6.33E(5) formerly read:
6.33E(5)
If the trustee does not receive the evidence requested under subregulation (3) within 10 business days after making the request the trustee must make reasonable further inquiries of the member to obtain the information.
Reg 6.33E(5) amended by SLI No 61 of 2013, reg 4 and Sch 2 item 11, by substituting "subregulation (3)" for "subregulation (4)", effective 1 July 2013.
History
Reg 6.33E inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.34
ROLLOVER OR TRANSFER OF WITHDRAWAL BENEFIT
Application of regulation
6.34(1)
This regulation applies to the trustee of a regulated superannuation fund or approved deposit fund (the
transferring fund
) if:
(a)
the transferring fund receives a request to rollover or transfer the whole or part of a member's withdrawal benefit from the transferring fund to another regulated superannuation fund or approved deposit fund, an RSA provider or an EPSSS (the
receiving fund
); and
(b)
for a request to rollover or transfer the whole of member's withdrawal benefit - the transferring fund receives all information that is required in the approved form referred to in paragraph 6.33(2)(b); and
(c)
for a request to roll over or transfer part of the member's withdrawal benefit - the transferring fund receives:
(i)
all the information that is required in the approved form referred to in paragraph 6.33(2)(b); and
(ii)
any other information that is reasonably required by the trustee of the fund to give effect to the rollover or transfer; and
(d)
for a request to which subregulation 6.33D(4) applies - the trustee has received sufficient information, following the request, to reasonably enable the trustee to give effect to the rollover or transfer; and
(e)
for a request to which subregulation 6.33E(3) applies, the trustee has received sufficient information, following the request, to reasonably enable the trustee to give effect to the rollover or transfer.
Note for paragraph (a):
The request could come from the member, the receiving fund or the Commissioner of Taxation.
History
Reg 6.34(1) amended by FRLI No F2018L01373, reg 4 and Sch 2 items 11 and 12, by substituting para (b) and (c)(i), effective 29 September 2018 and applicable to rollovers and transfers requested on or after 30 November 2019. Para (b) and (c)(i) formerly read:
(b)
for a request to rollover or transfer the whole of member's withdrawal benefit - the transferring fund receives all information that is mandatory information in the form in Schedule 2A (if the receiving fund is not a self managed superannuation fund) or Schedule 2B (in any other case); and
(c)(i)
the information that would be required by the form specified in Schedule 2A (if the receiving fund is not a self managed superannuation fund) or Schedule 2B (in any other case); and
Reg 6.34(1) amended by SLI No 61 of 2013, reg 4 and Sch 2 items 12-15, by substituting "to roll over" for "for rollover" in para (c), "subregulation 6.33D(4)" for "paragraph 6.33D(4)(a) or (b)" and "the request" for "a request under subregulation 6.33D(4)" in para (d), and "the request" for "a request under subregulation 6.33E(4)" in para (e), effective 1 July 2013.
Trustee must rollover or transfer
6.34(2)
Subject to regulations 6.35 and 6.38, the trustee must roll over or transfer the amount in accordance with the request.
Note:
Standards made under subsection 34K(3) of the Act may set out how the amount is to be rolled over or transferred, and information that must accompany the rollover or transfer.
6.34(3)
The trustee must assign a payment reference number to the rollover or transfer, and include the payment reference number in the rollover or transfer.
6.34(4)
The payment reference number must be unique to:
(a)
the rollover or transfer; or
(b)
a number of rollovers or transfers made together on the same day by the transferring fund.
Note:
Standards made under subsection 34K(3) of the Act may set out how the payment reference number is to be determined.
6.34(5)
Before the trustee rolls over or transfers the amount, the trustee must, unless the trustee received the request from the receiving fund under regulation 6.33A or the Commissioner for Taxation under Part 6A, reasonably believe that the member:
(a)
is aware that the member may ask the trustee for information that the member reasonably requires for the purpose of understanding any benefit entitlements that the member may have, including:
(i)
information about any fees or charges that may apply to the proposed rollover or transfer; and
(ii)
information about the effect of the proposed rollover or transfer on any benefit entitlements the member may have; and
(b)
either:
(i)
has obtained any information the member reasonably requires; or
(ii)
does not require such information.
Note:
Under section 1017C of the Corporations Act 2001, a trustee of a fund must, on request by a member of the fund, give the member the information and documents mentioned in subsections 1017C(3) and (5). See also regulations 7.9.02, 7.9.45, and 7.9.47 of the Corporations Regulations 2001.
History
Reg 6.34 substituted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013. Reg 6.34 formerly read:
REGULATION 6.34 ROLLOVER OR TRANSFER OF WITHDRAWAL BENEFIT
General
6.34(1)
Subject to regulations 6.35 and 6.38, if a trustee of a regulated superannuation fund or an approved deposit fund receives a request under regulation 6.33, the trustee must roll over or transfer the amount in accordance with the request.
6.34(2)
Before the trustee rolls over or transfers an amount, the trustee must be satisfied that the member:
(a)
is aware that the member may ask the trustee for information that the member reasonably requires for the purpose of understanding any benefit entitlements that the member may have, including:
(i)
information about any fees or charges that may apply to the proposed rollover or transfer; and
(ii)
information about the effect of the proposed rollover or transfer on any benefit entitlements the member may have; and
(b)
does not require such information.
Note:
Under section 1017C of the Corporations Act 2001, a trustee of a fund must, on request by a member of the fund, give the member the information and documents mentioned in subsections 1017C(3) and (5). See also regulations 7.9.02, 7.9.45 and 7.9.47 of the Corporations Regulations 2001.
6.34(3)
Subject to subregulations (4) and (5), the trustee must roll over or transfer the amount (or the part of the amount requested to be transferred) as soon as practicable, and in any case within 30 days, after:
(a)
the trustee receives a request under regulation 6.33; or
(b)
if the trustee requires information or documentation - the time when the trustee receives the information or documentation in accordance with regulation 6.33A; or
(c)
if there is a suspension or variation under regulation 6.36 or 6.37 - the end of the period of the suspension or variation.
Illiquid investment before 1 July 2007
6.34(4)
For an investment that was made before 1 July 2007, a trustee is not required to roll over or transfer the whole amount of a member's interest in the fund (or the part of the amount requested to be transferred) within the 30 day period mentioned in subregulation (3) if:
(a)
any part of the member's interest was an illiquid investment immediately before 1 July 2007; and
(b)
the trustee informed the member, before 1 July 2008, of the nature of the illiquid investment, the impact of the investment on the portability of the member's interest, and the period within which the investment can be rolled over to another fund.
Illiquid investment on or after 1 July 2007
6.34(5)
If, on or after 1 July 2007, a member makes an investment choice under regulation 4.02, and the investment strategy chosen is an illiquid investment, the trustee is not required to roll over or transfer the whole of the member's withdrawal benefit (or a partial amount requested to be transferred) within the 30 day period mentioned in subregulation (3) if the trustee:
(a)
informs the member of:
(i)
the effect of this subregulation before the member makes the investment choice; and
(ii)
the reasons why the investment is illiquid; and
(iii)
the maximum period in which a transfer must be effected; and
(b)
obtains written consent that the member understands and accepts that a period longer than the 30 days mentioned in subregulation (3) is required (in respect of the whole or part of the requested transfer amount) because of the illiquid nature of the investment.
Note:
The trustee may effect a roll over or transfer in more than one transaction to ensure that only the illiquid investment is rolled over or transferred outside the 30 day period.
Reg 6.34 substituted by SLI No 14 of 2013, reg 3 and Sch 1 item 3, effective 19 February 2013. Reg 6.34 formerly read:
REGULATION 6.34 ROLLOVER OR TRANSFER OF WITHDRAWAL BENEFIT
General
6.34(1)
Subject to regulations 6.35 and 6.38, if a trustee of a regulated superannuation fund or an approved deposit fund receives a request under regulation 6.33, the trustee must roll over or transfer the amount in accordance with the request.
6.34(2)
Subject to subregulation (3):
(a)
a request to roll over or transfer an amount that is the whole of the member's withdrawal benefit may be made:
(i)
using the form specified in Schedule 2A; or
(ii)
in another manner; and
(b)
a request to roll over or transfer an amount that is part of the member's withdrawal benefit may include:
(i)
the information that would be required by the form specified in Schedule 2A; and
(ii)
any other information that the trustee of the transferring superannuation fund advises the member to be necessary to process the request.
Note: The form in Schedule 2A deals with information about tax file numbers that is required in accordance with Part 25A of the Act, and approvals under that Part.
It is recommended that applicants use the form of request in Schedule 2A to allow trustees to roll over or transfer whole balance amounts as quickly and efficiently as possible. Making the request in another way may require a trustee to seek further information from the member under subregulation 6.33(2).
If subregulation (3) applies, the form of request may need to be supplemented by the documentation mentioned in the applicable subregulation.
6.34(3)
In addition to the information that is, or would be, required in accordance with subregulation (2), if:
(a)
a request is made by a member (
member 1
) to roll over or transfer an amount that is the whole or part of the member's withdrawal benefit to a self managed superannuation fund; and
(b)
the trustee of the transferring superannuation fund is aware that:
(i)
another request has been made to roll over or transfer an amount to the same self managed superannuation fund; and
(ii)
the other request was made by another member who is not a relative of member 1, within the meaning of subsection 17A(9) of the Act; and
(iii)
the other request:
(A)
has been processed; or
(B)
is currently with the trustee of the transferring superannuation fund to be processed;
the trustee may also require member 1 to provide with the request a copy of documentation, complying with the requirements of certification in the form in schedule 2A, that shows that member 1 is a member or trustee of the self managed superannuation fund before the trustee processes member 1's request.
Examples of documents showing that a member is a member or trustee of a self managed superannuation fund
1 A trust deed.
2 The member's contribution statement.
3 The annual return of the self managed superannuation fund.
6.34(4)
Before the trustee rolls over or transfers an amount, the trustee must be satisfied that the member:
(a)
is aware that the member may ask the trustee for information that the member reasonably requires for the purpose of understanding any benefit entitlements that the member may have, including:
(i)
information about any fees or charges that may apply to the proposed rollover or transfer; and
(ii)
information about the effect of the proposed rollover or transfer on any benefit entitlements the member may have; and
(b)
does not require such information.
Note: Under section 1017C of the Corporations Act 2001, a trustee of a fund must, on request by a member of the fund, give the member the information and documents mentioned in subsections 1017C(3) and (5). See also regulations 7.9.02, 7.9.45, 7.9.46 and 7.9.83 of the Corporations Regulations 2001.
6.34(5)
Subject to subregulations (6) and (7), the trustee must roll over or transfer the amount (or the part of the amount requested to be transferred) as soon as practicable, and in any case within 30 days, after:
(a)
the trustee receives a request made under subregulation 6.33(1); or
(b)
if the trustee requires further information - the time when the trustee receives all of the information that would be required in accordance with subregulations 6.33(2), (3) and (4); or
(c)
if there is a suspension under regulation 6.36 or 6.37 - the end of the period of the suspension.
6.34(6)
Illiquid investment before 1 July 2007.
For an investment that was made before 1 July 2007, a trustee is not required to rollover or transfer the whole amount of a member's interest in the fund (or the part of the amount requested to be transferred) within the 30 day period mentioned in subregulation (5) if:
(a)
any part of the member's interest was an illiquid investment immediately before 1 July 2007; and
(b)
either:
(i)
the trustee informs the member, before 1 July 2008, of the nature of the illiquid investment, the impact of the investment on the portability of the member's interest, and the period within which the investment can be rolled over to another fund; or
(ii)
if the member makes a request under regulation 6.33 before the trustee has complied with subparagraph (i) - the trustee informs the member, within 30 days after receiving the request, of the nature of the illiquid investment, the impact of the investment on the portability of the member's interest, and the period within which the investment can be rolled over to the other fund.
6.34(7)
Illiquid investment on or after 1 July 2007.
If, on or after 1 July 2007, a member makes an investment choice under regulation 4.02, and the investment strategy chosen is an illiquid investment, the trustee is not required to rollover or transfer the whole of the member's withdrawal benefit (or a partial amount requested to be transferred) within the 30 day period mentioned in subregulation (5) if the trustee:
(a)
informs the member of:
(i)
the effect of this subregulation before the member makes the investment choice; and
(ii)
the reasons why the investment is illiquid; and
(iii)
the maximum period in which a transfer must be effected; and
(b)
obtains written consent that the member understands and accepts that a period longer than the 30 days mentioned in subregulation (5) is required (in respect of the whole or part of the requested transfer amount) because of the illiquid nature of the investment.
Note: The trustee may effect a rollover or transfer in more than 1 transaction to ensure that only the illiquid investment is rolled over or transferred outside the 30 day period.
Reg 6.34 substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 64, effective 1 July 2007. Reg 6.34 formerly read:
REGULATION 6.34 ROLLOVER OR TRANSFER OF WITHDRAWAL BENEFIT
6.34(1)
Subject to regulations 6.35 and 6.38, if a trustee of a regulated superannuation fund or an approved deposit fund receives a request under regulation 6.33, the trustee must roll over or transfer the amount in accordance with the request.
6.34(2)
Before a trustee of a regulated superannuation fund or an approved deposit fund rolls over or transfers the amount, the trustee must be satisfied that the member:
(a)
is aware that the member may ask the trustee for information that the member reasonably requires for the purpose of understanding any benefit entitlements that the member may have, including:
(i)
information about any fees or charges that may apply to the proposed rollover or transfer; and
(ii)
information about the effect of the proposed rollover or transfer on any benefit entitlements the member may have; and
(b)
does not require such information.
Note: Under section 1017C of the Corporations Act 2001, a trustee of a fund must, on request by a member of the fund, give the member the information and documents mentioned in subsections 1017C(3) and (5). See also regulations 7.9.02, 7.9.45, 7.9.46 and 7.9.83 of the Corporations Regulations 2001.
6.34(3)
The trustee must roll over or transfer the amount as soon as practicable, and in any case within 90 days, after:
(a)
receiving the request; or
(b)
if the trustee required further information in relation to the request - receiving the further information; or
(c)
if there is a suspension under regulation 6.36 or 6.37 - the end of the period of the suspension.
Reg 6.34 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.34A
TIMEFRAMES FOR ROLLOVERS AND TRANSFERS
6.34A(1)
This regulation applies if a trustee of a transferring fund is required to rollover or transfer an amount to a receiving fund under regulation 6.34.
Timeframe - standard
6.34A(2)
Subject to subregulations (3) to (6), a trustee required to roll over or transfer an amount under subregulation 6.34(2) must do so as soon as practicable, but in any case not later than 3 business days after:
(a)
the trustee received the rollover or transfer request; or
(b)
if the trustee seeks further information under regulation 6.33C or subregulation 6.33D(4) or 6.33E(3) - the date the trustee receives the information; or
(c)
if there is a suspension or variation under regulation 6.36 or 6.37 - the end of the period of the suspension or variation.
Timeframe - non-standard
6.34A(3)
If the receiving fund is unable to receive the rollover or transfer in accordance with any applicable Standards made under subsection 34K(3) of the Act or subsection 45B(3) of the RSA Act, the trustee is required, subject to subregulations (4) to (6), to rollover or transfer the amount as soon as practicable, but in any case not later than 30 days after:
(a)
the trustee received the rollover or transfer request; or
(b)
if the trustee seeks further information under regulation 6.33C or subregulation 6.33D(4) or 6.33E(3) - the date the trustee receives the information; or
(c)
if there is a suspension or variation under regulation 6.36 or 6.37 - the end of the period of the suspension or variation.
6.34A(4)
If a member makes an investment choice between 1 July 2007 and 30 June 2013 under regulation 4.02, or after 1 July 2013 under regulation 4.02A or 4.02AA:
(a)
the trustee is not required to rollover or transfer the amount within the period mentioned in subregulation (2) if:
(i)
the trustee takes steps to redeem the investment as soon as practicable but in any case not later than 3 business days; and
(ii)
the rollover or transfer is made as soon as practicable, and in any event not later than 3 business days, after the trustee receives the proceeds of the redemption; but
(b)
the trustee must rollover or transfer the amount as soon as practicable and in any case not later than 30 days after:
(i)
the trustee received the request; or
(ii)
if the trustee seeks further information under regulation 6.33C, or subregulation 6.33D(4) or 6.33E(3) - the time the trustee receives the information; or
(iii)
if there is a suspension or variation under regulation 6.36 or 6.37 - the end of the period of the suspension or variation.
History
Reg 6.34A(4) amended by SLI No 127 of 2014, reg 4 and Sch 2 item 1, by substituting "If a member makes an investment choice between 1 July 2007 and 30 June 2013 under regulation 4.02, or after 1 July 2013 under regulation 4.02A or 4.02AA" for "If, on or after 1 July 2007, a member makes an investment choice under regulation 4.02", applicable on and after 1 July 2013.
Timeframe - illiquid investments
6.34A(5)
For an investment made before 1 July 2007, the trustee is not required to rollover or transfer the amount within the period mentioned in subregulation (2), (3) or (4) if:
(a)
any part of the member's interest was an illiquid investment immediately before 1 July 2007; and
(b)
the trustee informed the member, before 1 July 2008, of the nature of the illiquid investment, the impact of the investment on the portability of the member's interest, and the period within which the investment can be rolled over to another fund.
6.34A(6)
If a member makes an investment choice between 1 July 2007 and 30 June 2013 under regulation 4.02, or after 1 July 2013 under regulation 4.02A or 4.02AA, the trustee is not required to rollover or transfer the amount within the period mentioned in subregulation (2), (3) or (4) if:
(a)
for an investment choice made before 1 July 2013 where the investment strategy chosen is an illiquid investment - the trustee, before the member made the investment choice:
(i)
informed the member of the effect of subregulation 6.34(5) of these Regulations as in force immediately before 1 July 2013, and of the maximum period in which a transfer was required to be effected under that subregulation; and
(ii)
informed the member of the reasons why the investment is illiquid; and
(iii)
obtained written consent that the member understands and accepts that a period longer than 30 days is required (in respect of the whole or part of the requested transfer amount) because of the illiquid nature of the investment; or
(b)
for an investment choice made on or after 1 July 2013, where the investment strategy chosen is an illiquid investment - the trustee has, before the member made the investment choice:
(i)
informed the member of the effect of paragraph 6.34A(4)(b) and of the maximum period in which a transfer is required to be effected under that paragraph; and
(ii)
informed the member of the reasons why the investment is illiquid; and
(iii)
obtained written consent that the member understands and accepts that a period longer than 30 days is required (in respect of the whole or part of the requested transfer amount) because of the illiquid nature of the investment.
Note:
The trustee may effect a rollover or transfer in more than 1 transaction to ensure that only the illiquid investment is rolled over or transferred outside the 3 day period.
History
Reg 6.34A(6) amended by SLI No 127 of 2014, reg 4 and Sch 2 item 2, by substituting "If a member makes an investment choice between 1 July 2007 and 30 June 2013 under regulation 4.02, or after 1 July 2013 under regulation 4.02A or 4.02AA" for "If, on or after 1 July 2007, a member makes an investment choice under regulation 4.02", applicable on and after 1 July 2013.
History
Reg 6.34A inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.34B
MEMBER DETAILS FOR ROLLOVER OR TRANSFER
6.34B(1)
A trustee of a transferring fund who rolls over or transfers the whole or part of a member's withdrawal benefit under regulation 6.34 to a regulated superannuation fund, approved deposit fund or RSA provider (the
receiving fund
) must give the following information to the receiving fund in relation to the rollover or transfer:
(a)
the member's full name;
(b)
the member's date of birth;
(c)
the member's sex;
(d)
the member's residential address;
(e)
the payment reference number included with the rollover or transfer.
Note:
See section 299M of the Act for requirements relating to the provision of the member's tax file number.
6.34B(2)
However, the trustee is not required to give the information to the receiving fund if the member has not given the information to the transferring fund.
6.34B(3)
The trustee must give the information to the receiving fund on the same day as the trustee makes the rollover or transfer.
Note:
Standards made under subsection 34K(3) of the Act may set out how the information in subregulation (1) is to be given to the receiving fund (for example, electronically), and may require additional information to be given.
History
Reg 6.34B inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.34C
RECEIVING FUND MUST ELECTRONICALLY RECEIVE INFORMATION AND PAYMENT
6.34C(1)
This regulation applies to a regulated superannuation fund or approved deposit fund (the
receiving fund
) if:
(a)
another regulated superannuation fund or approved deposit fund, or an RSA provider (the
transferring fund
) gives to the receiving fund in relation to a rollover or transfer:
(i)
the information mentioned in subregulation 6.34B(1); and
(ii)
a payment of the whole or a part of a member's withdrawal benefit being rolled over or transferred to the receiving fund; and
(b)
the information is given, and the payment made, in accordance with the applicable Standards (if any) made under subsection 34K(3) of the Act or subsection 45B(3) of the RSA Act.
6.34C(2)
The receiving fund must be able to receive the information and payment electronically.
Note:
Standards made under subsection 34K(3) may set out additional requirements for how the fund is to receive the information and payment.
History
Reg 6.34C inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.34D
RECEIVING FUND MUST ALLOCATE AMOUNT TO MEMBER
6.34D(1)
This regulation applies to the trustee of a regulated superannuation fund or approved deposit fund (the
receiving fund
) if:
(a)
the receiving fund receives a rollover or transfer of an amount that is the whole or a part of a member's withdrawal benefit from:
(i)
a regulated superannuation fund or approved deposit fund; or
(ii)
an RSA provider; or
(iii)
the Commissioner of Taxation; and
(b)
for a rollover or transfer received from a regulated superannuation fund or approved deposit fund (the
transferring fund
):
(i)
the transferring fund made the rollover or transfer in accordance with any applicable Standards specified under subsection 34K(3) of the Act; and
(ii)
the information required by subregulation 6.34B(1), and any applicable Standards specified under subsection 34K(3) of the Act, was sent in relation to the rollover or transfer; and
(iii)
the information was sent in the way required by any applicable Standards made under subsection 34K(3) of the Act; and
(c)
for a rollover or transfer received from the Commissioner of Taxation - the Commissioner made the rollover or transfer in accordance with any applicable Standards specified under subsection 34K(3) of the Act that would apply if the rollover or transfer were being made by a regulated superannuation fund or approved deposit fund; and
(d)
for a rollover or transfer received from an RSA provider:
(i)
the RSA provider made the rollover or transfer in accordance with any applicable Standards specified under subsection 45B(3) of the RSA Act; and
(ii)
the information required by subregulation 4.35L(1) of the RSA Regulations and any applicable Standards made under subsection 45B(3) of the RSA Act, was sent in relation to the rollover or transfer; and
(iii)
the information was sent in the way required by any applicable Standards made under subsection 45B(3) of the RSA Act.
History
Reg 6.34D(1) amended by SLI No 61 of 2013, reg 4 and Sch 2 item 16, by inserting "subregulation 4.35L(1) of the RSA Regulations and" in para (d)(ii), effective 1 July 2013.
6.34D(2)
If the receiving fund accepts the rollover or transfer, and receives it in accordance with any applicable Standards made under subsection 34K(3) of the Act, the receiving fund must allocate the amount transferred or rolled over to the member's account as soon as possible, but in any case not later than 3 business days after the receiving fund has received:
(a)
the rollover or transfer of the amount; and
(b)
either:
(i)
the information mentioned in subparagraph (1)(b)(ii), sent in accordance with any applicable Standards made under subsection 34K(3) of the Act; or
(ii)
the information mentioned in subparagraph (1)(d)(ii), sent in accordance with any applicable Standards made under subsection 45B(3) of the RSA Act.
History
Reg 6.34D inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 1, effective 1 July 2013.
REGULATION 6.35
WHEN A TRUSTEE MAY REFUSE TO ROLL OVER OR TRANSFER AN AMOUNT
6.35(1)
A trustee may refuse to roll over or transfer an amount under regulation 6.34 if:
(a)
the fund or RSA to which the member has requested the amount be rolled over or transferred will not accept the amount; or
(b)
the amount to be rolled over or transferred is part only of the member's interest in the fund, and the effect of rolling over or transferring the amount would be that the member's interest in the fund from which the amount is to be rolled over or transferred would be less than $6,000; or
(c)
the trustee has, under regulation 6.34, rolled over or transferred an amount of the member's interest within 12 months before the request is received; or
(d)
the amount to be rolled over or transferred is a superannuation death benefit (within the meaning of the 1997 Tax Act) in the form of a pension and the roll over or transfer would be inconsistent with the governing rules of the fund applying in respect of the benefit.
History
Reg 6.35(1) amended by FRLI No F2019L00539, reg 4 and Sch 1 item 30, by substituting "$6,000" for "$5 000" in para (b), applicable in relation to requests to roll over or transfer an amount under regulation 6.34 of these Regulations made on or after 6 April 2019.
Reg 6.35(1) amended by SLI No 14 of 2013, reg 3 and Sch 1 items 4-5, by substituting "received; or" for "received." in para (c) and inserting para (d), effective 19 February 2013.
6.35(2)
If a trustee refuses to roll over or transfer an amount under subregulation (1), the trustee must tell the member of the refusal in writing.
History
Reg 6.35 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.36
SUSPENSION OR VARIATION OF OBLIGATION TO ROLL OVER OR TRANSFER AMOUNTS BY APRA
6.36(1)
[Application]
This regulation applies if APRA believes, on reasonable grounds, that a rollover or transfer of an amount by the trustee of a regulated superannuation fund or approved deposit fund under regulation 6.34 would have a significant adverse effect on:
(a)
the financial position of the fund; or
(b)
the interests of other members of the fund.
6.36(2)
[APRA may suspend or vary]
APRA may, by notice in writing to the trustee, suspend or vary an obligation of the trustee under regulation 6.34.
6.36(3)
[Communication of suspension period]
A suspension or variation under subregulation (2) applies for the period specified by APRA in the notice.
History
Reg 6.36 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.37
SUSPENSION OR VARIATION OF OBLIGATION TO ROLL OVER OR TRANSFER AMOUNTS BY APRA - APPLICATION BY TRUSTEE
6.37(1)
[Application to APRA]
This regulation applies if the trustee of a regulated superannuation fund or approved deposit fund applies to APRA for a suspension or variation of the trustee's obligation to roll over or transfer amounts under regulation 6.34.
6.37(2)
[Required information]
The application must contain information about the fund's financial position and the effect of any rollovers or transfers of amounts under regulation 6.34 on:
(a)
the financial position of the fund; or
(b)
the interests of other members of the fund.
6.37(3)
[Request for further information]
APRA may ask the trustee to provide further information in relation to the application within the period specified by APRA.
6.37(4)
[If request for further information not met]
If the trustee does not provide the further information within the specified period, APRA may treat the application as if it had been withdrawn by the trustee.
6.37(5)
[APRA's decision: timing]
APRA must consider the application and notify the trustee of its decision in writing, within 30 days after the later of:
(a)
the day APRA receives the application; and
(b)
the day APRA receives the further information.
6.37(6)
[APRA's decision: grounds and notice]
If APRA believes, on reasonable grounds, that a rollover or transfer of an amount under regulation 6.34 would have a significant adverse effect on:
(a)
the financial position of the fund; or
(b)
the interests of other members of the fund;
APRA may, by notice in writing to the trustee, suspend or vary an obligation of the trustee under regulation 6.34.
6.37(7)
[Application of variation, etc]
A suspension or variation under subregulation (6) applies for the period specified by APRA in the notice.
History
Reg 6.37 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.38
TRUSTEE'S OBLIGATIONS IF APRA SUSPENDS OR VARIES OBLIGATION TO ROLL OVER OR TRANSFER AMOUNTS
6.38(1)
[Effect of suspension]
If, under regulation 6.36 or 6.37, APRA suspends a trustee's obligation to roll over or transfer amounts under regulation 6.34, the trustee must not roll over or transfer an amount under regulation 6.34 for the period of the suspension.
6.38(2)
[Effect of variation]
If, under regulation 6.36 or 6.37, APRA varies a trustee's obligation to roll over or transfer amounts under regulation 6.34, the trustee may roll over or transfer an amount under regulation 6.34 only in accordance with the variation.
History
Reg 6.38 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
Division 6.6 - Additional standards for eligible rollover funds
History
Div 6.6 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
REGULATION 6.39
6.39
OBLIGATIONS OF TRUSTEES
The trustee of an eligible rollover fund must comply, as soon as practicable, with a request by a member:
(a)
to pay a benefit of the member in the fund; or
(b)
to pay a benefit in the form of a lump sum.
History
Reg 6.39 inserted by SR No 251 of 2003, reg 3 and Sch 1 item 10, effective 1 July 2004.
Division 6.7 - Spouse contributions-splitting amounts
History
Div 6.7 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
REGULATION 6.40
6.40
INTERPRETATION
In this Division:
allocated surplus contribution amount
means an amount that is allocated from a regulated superannuation fund surplus, by a trustee, to meet an employer's liability to make contributions.
applicant
means a member who makes an application under subregulation 6.44(1).
concessional contributions
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "concessional contributions" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 65, effective 1 July 2007.
concessional contributions cap
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "concessional contributions cap" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 65, effective 1 July 2007.
contributions segment
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "contributions segment" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 65, effective 1 July 2007.
contributions-splitting superannuation benefit
means a payment made in accordance subregulation 6.45(2).
History
Definition of "contributions-splitting superannuation benefit" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 65, effective 1 July 2007.
crystallised segment
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "crystallised segment" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 65, effective 1 July 2007.
defined benefit component
has the meaning given by regulation 6.31.
directed termination payment
has the meaning given by section 82-10F of the Income Tax (Transitional Provisions) Act 1997.
History
Definitions of "directed termination payment", "element taxed in the fund", "element untaxed in the fund" and "foreign superannuation fund" substituted for definition of "eligible non-resident non-complying superannuation fund" by SLI No 74 of 2007, reg 5 and Sch 3 item 66, effective 1 July 2007.
element taxed in the fund
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definitions of "directed termination payment", "element taxed in the fund", "element untaxed in the fund" and "foreign superannuation fund" substituted for definition of "eligible non-resident non-complying superannuation fund" by SLI No 74 of 2007, reg 5 and Sch 3 item 66, effective 1 July 2007.
element untaxed in the fund
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definitions of "directed termination payment", "element taxed in the fund", "element untaxed in the fund" and "foreign superannuation fund" substituted for definition of "eligible non-resident non-complying superannuation fund" by SLI No 74 of 2007, reg 5 and Sch 3 item 66, effective 1 July 2007.
eligible non-resident non-complying superannuation fund
(Repealed by SLI No 74 of 2007)
History
Definitions of "directed termination payment", "element taxed in the fund", "element untaxed in the fund" and "foreign superannuation fund" substituted for definition of "eligible non-resident non-complying superannuation fund" by SLI No 74 of 2007, reg 5 and Sch 3 item 66, effective 1 July 2007. The definition of "eligible non-resident non-complying superannuation fund" formerly read:
eligible non-resident non-complying superannuation fund
has the meaning given by section 27A of the Income Tax Assessment Act 1936.
foreign superannuation fund
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "foreign superannuation fund" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 66, effective 1 July 2007.
maximum splittable amount
, in relation to a financial year, means:
(a)
for taxed splittable contributions - the lesser of:
(i)
85% of the concessional contributions for that financial year; and
(ii)
the concessional contributions cap for that financial year; and
(b)
for untaxed splittable contributions - 100% of the amount of the untaxed splittable contributions made in the financial year; and
(c)
for untaxed splittable employer contributions - 100% of the concessional contributions cap for that financial year.
History
Definition of "maximum splittable amount" amended by SLI No 74 of 2007, reg 5 and Sch 3 items 67 and 68, by substituting paras (a) and (c), effective 1 July 2007. Paras (a) and (c) formerly read:
(a)
for taxed splittable contributions - 85% of the amount of the taxed splittable contributions made in the financial year; and
(c)
for untaxed splittable employer contributions - 100% of the amount of the untaxed splittable employer contributions made in the financial year.
Definition of "maximum splittable amount" amended by SLI No 189 of 2006, reg 3 and Sch 1 items 1 and 2, by inserting para (c), effective 18 July 2006.
post-June 83 component
(Repealed by SLI No 74 of 2007)
History
Definition of "post-June 83 component" repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 69, effective 1 July 2007. The definition formerly read:
post-June 83 component
, in relation to an ETP, has the meaning given by section 27A of the Income Tax Assessment Act 1936.
preservation age
has the meaning given by regulation 6.01.
relevant financial year
, in relation to an application made under:
(a)
paragraph 6.44(1)(a), means the last financial year that ended before the date of the application; or
(b)
paragraph 6.44(1)(b), means the financial year in which the application is made.
splittable contribution
has the meaning given by regulation 6.42.
superannuation benefit
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "superannuation benefit" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 70, effective 1 July 2007.
superannuation lump sum
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "superannuation lump sum" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 70, effective 1 July 2007.
superannuation interest
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "superannuation interest" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 70, effective 1 July 2007.
taxable component
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
History
Definition of "taxable component" inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 70, effective 1 July 2007.
taxed splittable contribution
has the meaning given by regulation 6.41.
undeducted contributions
(Repealed by SLI No 74 of 2007)
History
Definition of "undeducted contributions" repealed by SLI No 74 of 2007, reg 5 and Sch 3 item 71, effective 1 July 2007. The definition formerly read:
undeducted contributions
, in relation to an ETP, has the meaning given by section 27A of the Income Tax Assessment Act 1936.
untaxed splittable contribution
has the meaning given by regulation 6.41.
untaxed splittable employer contribution
has the meaning given by regulation 6.41.
History
Definition of "untaxed splittable employer contribution" inserted by SLI No 189 of 2006, reg 3 and Sch 1 item 3, effective 18 July 2006.
History
Reg 6.40 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
REGULATION 6.41
MEANING OF
TAXED SPLITTABLE CONTRIBUTION
,
UNTAXED SPLITTABLE CONTRIBUTION
AND
UNTAXED SPLITTABLE EMPLOYER CONTRIBUTION
History
Heading substituted by SLI No 189 of 2006, reg 3 and Sch 1 item 4, effective 18 July 2006.
6.41(1)
[Contributions that are taxed splittable contributions]
Subject to subregulation (2), a
taxed splittable contribution
is:
(a)
a contribution that will be included in the assessable income of an entity as:
(i)
a taxable contribution for section 274 of the Tax Act; or
(ii)
a contribution under Subdivision 295-C of the 1997 Tax Act; or
(b)
(Repealed by SLI No 189 of 2006)
(c)
an allocated surplus contribution amount.
History
Reg 6.41(1) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 72, by substituting para (a), effective 1 July 2007. Para (a) formerly read:
(a)
a contribution that is a taxable contribution for section 274 of the Income Tax Assessment Act 1936; or
Reg 6.41(1) amended by SLI No 189 of 2006, reg 3 and Sch 1 item 5, by omitting para (b), effective 18 July 2006. Para (b) formerly read:
(b)
a contribution that, but for the Commonwealth's inability to tax the property of a State, would be a taxable contribution for section 274 of the Income Tax Assessment Act 1936; or
6.41(2)
[Contributions that are not taxed splittable contributions]
Each of the following is not a
taxed splittable contribution
:
(a)
a roll-over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(b)
an amount allotted under this Division;
(c)
a superannuation lump sum that is paid from a foreign superannuation fund.
History
Reg 6.41(2) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 73, effective 1 July 2007. Reg 6.41(2) formerly read:
6.41(2)
Each of the following is not a
taxed splittable contribution
:
(a)
an amount that has been rolled over, transferred or allotted;
(b)
a lump sum payment from an eligible non-resident non-complying superannuation fund.
6.41(3)
[Contributions that are untaxed splittable contributions]
Subject to subregulation (4), an
untaxed splittable contribution
:
(a)
is a contribution made by a fund member or by another person to a regulated superannuation fund; but
(b)
does not include a contribution of that kind that:
(i)
is made after 5 April 2007; and
(ii)
will not be included in the assessable income of an entity as:
(A)
a taxable contribution for section 274 of the Tax Act; or
(B)
a contribution under Subdivision 295-C of the 1997 Tax Act.
History
Reg 6.41(3) substituted by SLI No 74 of 2007, reg 4 and Sch 2 item 1, effective 5 April 2007. Reg 6.41(3) formerly read:
6.41(3)
Subject to subregulation (4), an
untaxed splittable contribution
is a contribution made by a fund member or by another person to a regulated superannuation fund where that contribution is not a taxable contribution under section 274 of the Income Tax Assessment Act 1936.
6.41(4)
[Contributions that are not untaxed splittable contributions]
Each of the following is not an
untaxed splittable contribution
:
(a)
a payment made to a superannuation fund by an employer, or by another person under an agreement to which the employer is a party, for the purpose of providing superannuation benefits for, or for dependants of, an employee of the employer;
(b)
a roll-over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(c)
an amount allotted under this Division;
(d)
superannuation lump sum that is paid from a foreign superannuation fund.
History
Reg 6.41(4) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 74, effective 1 July 2007. Reg 6.41(4) formerly read:
6.41(4)
Each of the following is not an
untaxed splittable contribution
:
(a)
a payment made to a superannuation fund by an employer, or by another person under an agreement to which the employer is a party, for the purpose of providing superannuation benefits for, or for dependants of, an employee of the employer;
(b)
an amount that has been rolled over, transferred or allotted;
(c)
a lump sum payment from an eligible non-resident non-complying superannuation fund.
6.41(5)
["untaxed splittable employer contribution"]
Subject to subregulation (6), an untaxed splittable employer contribution:
(a)
is a contribution made by the Commonwealth, a State or a Territory to a public sector superannuation scheme; but
(b)
does not include a contribution of that kind that will be included in the assessable income of an entity as:
(i)
a taxable contribution for section 274 of the Tax Act; or
(ii)
a contribution under Subdivision 295-C of the 1997 Tax Act.
History
Reg 6.41(5)(b) amended by SLI No 204 of 2007, reg 3 and Sch 1 item 10, by substituting "be included" for "not be included" in para (b), effective 1 July 2007.
Reg 6.41(5) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 74, effective 1 July 2007. Reg 6.41(5) formerly read:
6.41(5)
Subject to subregulation (6), an
untaxed splittable employer contribution
is a contribution by the Commonwealth, a State or a Territory to a public sector superannuation scheme that is not a taxable contribution for section 274 of the Income Tax Assessment Act 1936.
Reg 6.41(5) inserted by SLI No 189 of 2006, reg 3 and Sch 1 item 6, effective 18 July 2006.
6.41(6)
[Contributions that are not untaxed splittable employer contributions]
Each of the following is not an untaxed splittable employer contribution:
(a)
a roll-over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(b)
an amount allotted under this Division;
(c)
a superannuation lump sum that is paid from a foreign superannuation fund.
History
Reg 6.41(6) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 74, effective 1 July 2007. Reg 6.41(6) formerly read:
6.41(6)
Each of the following is not an untaxed splittable employer contribution:
(a)
an amount that has been rolled over, transferred or allotted;
(b)
a lump sum payment from an eligible non-resident non-complying superannuation fund.
Reg 6.41(6) inserted by SLI No 189 of 2006, reg 3 and Sch 1 item 6, effective 18 July 2006.
History
Reg 6.41 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
REGULATION 6.42
MEANING OF
SPLITTABLE CONTRIBUTION
6.42(1)
[Contributions that are splittable contributions]
Subject to subregulations (2) and (3), a
splittable contribution
is:
(a)
a contribution to a regulated superannuation fund on or after 1 January 2006; or
(b)
an allocated surplus contribution amount that is allocated on or after 1 January 2006.
History
Reg 6.42(1) amended by SLI No 189 of 2006, reg 3 and Sch 1 item 7, by substituting "subregulations (2) and (3)," for "subregulation (2),", effective 18 July 2006.
6.42(2)
[Contributions that are not splittable contributions]
Each of the following, received for a member of a regulated superannuation fund, is not a
splittable contribution
:
(a)
a roll-over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(b)
an amount allotted under this Division;
(c)
a superannuation lump sum that is paid from a foreign superannuation fund;
(d)
a directed termination payment or an amount that would form part of the contributions segment of the superannuation interest.
History
Reg 6.42(2) substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 75, effective 1 July 2007. Reg 6.42(2) formerly read:
6.42(2)
Each of the following, received for a member of a regulated superannuation fund, is not a
splittable contribution
:
(a)
an amount that has been rolled over or transferred;
(b)
an amount allotted under this Division;
(c)
a lump sum payment from an eligible non-resident non-complying superannuation fund;
(d)
an amount or payment mentioned in paragraph (a) or (jaa) of the definition of
eligible termination payment
in subsection 27A(1) of the Income Tax Assessment Act 1936.
6.42(3)
[Certain Commonwealth, State or Territory contributions]
A contribution by the Commonwealth, a State or a Territory to a public sector superannuation scheme in relation to a benefit that accrued in a financial year that commenced before 1 July 2005 is not a splittable contribution.
History
Reg 6.42(3) inserted by SLI No 189 of 2006, reg 3 and Sch 1 item 8, effective 18 July 2006.
Reg 6.42 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
REGULATION 6.42A
TRANSITIONAL ARRANGEMENTS FOR SPLITTABLE CONTRIBUTIONS
6.42A(1)
Subject to subregulation (2), if a regulated superannuation fund (the receiving fund) receives before 1 July 2006 an amount rolled over or transferred by another regulated superannuation fund (the transferring fund), and that amount includes an amount that was a splittable contribution in the transferring fund, the amount that was a splittable contribution is taken to be a splittable contribution in the receiving fund.
6.42A(2)
Subregulation (1) does not apply where:
(a)
the transferring fund is a self managed superannuation fund; or
(b)
the amount is rolled over or transferred pursuant to regulation 6.45; or
(c)
the trustee of a transferring fund has given effect to an application under subregulation 6.44(1) from the member in respect of whom the rollover or transfer was received.
History
Reg 6.42A inserted by Modification Declaration No 1 of 2006, registered on and effective from 1 April 2006.
REGULATION 6.43
APPLICATION OF DIVISION 6.7
6.43(1)
This Division applies to:
(a)
an accumulation interest; and
(b)
a defined benefit interest that is not a defined benefit component.
6.43(2)
This Division does not apply to an interest:
(a)
that is subject to a payment split; or
(b)
on which a payment flag (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975) is operating.
History
Reg 6.43(2) amended by FRLI No F2021L01893, reg 4 and Sch 1 item 191, by inserting "or VIIIC" in para (b), effective 28 September 2022.
History
Reg 6.43 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
REGULATION 6.44
APPLICATION TO ROLL OVER, TRANSFER OR ALLOT AN AMOUNT OF CONTRIBUTIONS
6.44(1)
A member of a regulated superannuation fund may, in a financial year, apply to the trustee of the fund to roll over, transfer or allot an amount of benefits, for the benefit of the member's spouse, that is equal to an amount of the splittable contributions made to that fund by, for, or on behalf of the member in:
(a)
the last financial year that ended before the application; or
(b)
the financial year in which the application is made - where the member's entire benefit is to be rolled over, transferred or cashed in that year.
Note: This arrangement applies at the request of the member, and is not an arrangement by which the member's superannuation interest is subject to a payment split under Part VIIIB or VIIIC of the Family Law Act 1975. Part 7A of these Regulations deals with those payment splitting arrangements.
History
Reg 6.44(1) amended by FRLI No F2021L01893, reg 4 and Sch 1 item 192, by inserting "or VIIIC" in the note, effective 28 September 2022.
Reg 6.44(1) amended by SLI No 189 of 2006, reg 3 and Sch 1 items 9 and 10, by inserting "to that fund" after "made" and substituting "rolled over, transferred or cashed" for "rolled over or transferred" in para (b), effective 18 July 2006.
6.44(2)
However, the application is taken to be invalid:
(a)
if in the financial year in which it is made:
(i)
the member has already made an application in respect of the relevant financial year; and
(ii)
the trustee:
(A)
is considering the application; or
(B)
has given effect to that application; or
(b)
if the amount of benefits to which the application relates exceeds the maximum splittable amount; or
(c)
subject to subregulation (3), if, at the time of application:
(i)
the member's spouse is aged 65 years or more; or
(ii)
both:
(A)
the member's spouse is aged between the relevant preservation age and 65 years; and
(B)
the member's spouse satisfies the condition of release specified in item 101 of Schedule 1.
History
Reg 6.44(2) amended by SLI No 189 of 2006, reg 3 and Sch 1 items 11 and 12, by substituting "the" for "a" in para (a)(i) and substituting para (c), effective 18 July 2006. Para (c) formerly read:
(c)
subject to subregulation (3), if:
(i)
the member's spouse is aged 65 years or more; or
(ii)
both:
(A)
the member's spouse is aged between the relevant preservation age and 65 years; and
(B)
the member's spouse satisfies item 101 conditions of release, set out in Schedule 1, at the time of application.
6.44(3)
Despite paragraph (2)(c), an application is not taken to be invalid under that paragraph if the application includes a statement by the member's spouse to the effect that, at the time of application, the spouse:
(a)
is aged less than the relevant preservation age; or
(b)
both:
(i)
is aged between the relevant preservation age and 65 years; and
(ii)
does not satisfy the condition of release specified in item 101 of Schedule 1.
History
Reg 6.44(3) substituted by SLI No 189 of 2006, reg 3 and Sch 1 item 13, effective 18 July 2006. Reg 6.44(3) formerly read:
6.44(3)
Despite paragraph (2)(c), an application is not taken to be invalid under that paragraph if the application includes a statement by the member's spouse to the effect that the spouse:
(a)
is aged less than the relevant preservation age; and
(b)
both:
(i)
is aged between the relevant preservation age and 65 years; and
(ii)
does not satisfy item 101 conditions of release, set out in Schedule 1.
6.44(4)
The applicant must specify, in the application, the amount of the benefit from the following:
(a)
the member's taxed splittable contributions;
(b)
the member's untaxed splittable contributions;
(c)
the member's untaxed splittable employer contributions;
that the member seeks to split for the benefit of the member's spouse.
Note: An amount rolled over, transferred or allotted under this Division is a contributions-splitting superannuation benefit.
History
Reg 6.44(4) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 76, by substituting the note, effective 1 July 2007. The note formerly read:
Note: An amount rolled over, transferred or allotted under this Division is a contributions-splitting amount (within the meaning of the Income Tax Assessment Act 1936) - see the definition of
contributions-splitting ETP
in subsection 27A(1) of that Act and regulation 98B of the Income Tax Regulations 1936.
Reg 6.44(4) amended by SLI No 189 of 2006, reg 3 and Sch 1 item 14, by inserting para (c), effective 18 July 2006.
Reg 6.44 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
REGULATION 6.45
DECISION ON APPLICATION
6.45(1)
[Conditions for acceptance]
A trustee may accept an application made under subregulation 6.44(1) if all of the following conditions are satisfied:
(a)
the application complies with regulation 6.44;
(b)
the trustee has no reason to believe that the statement mentioned in subregulation 6.44(3) is untrue;
(c)
the amount to which the application relates is not more than the maximum splittable amount for the relevant financial year.
Note: A superannuation fund trustee may voluntarily provide a service that allows a member to rollover, transfer or allot an amount to the applicant's spouse (a
splittable contribution
). The fund is not required to offer the service.
6.45(2)
[Timing]
A trustee that accepts an application in accordance with subregulation (1) must as soon as practicable, and in any case within 30 days after receiving the application, roll over, transfer or allot the amount of benefits for the benefit of the receiving spouse.
History
Reg 6.45(2) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 6, by substituting "30 days" for "90 days", effective 19 February 2013.
6.45(3)
[Application to split untaxed splittable contributions]
If the application requests a split of untaxed splittable contributions, the trustee may give effect to the application only if the amount specified in the application is no more than the crystallised segment that would form part of the superannuation interest that would be payable if the member withdrew the member's entire benefits at the time of the trustee giving effect to the application.
History
Reg 6.45(3) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 77, by substituting "crystallised segment that would form part of the superannuation interest" for "undeducted contributions that would form part of the ETP", effective 1 July 2007.
Reg 6.45(3), (4) and (5) substituted for reg 6.45(3) and (4) by SLI No 189 of 2006, reg 3 and Sch 1 item 15, effective 18 July 2006. Reg 6.45(3) formerly read:
6.45(3)
If the application requests a split of untaxed splittable contributions the trustee can only give effect to the application where the amount specified in the application is less than or equal to the undeducted contributions that would form part of the ETP that would be payable if the member withdrew the member's entire benefits at the time of the trustee giving effect to the application.
6.45(4)
[Application to split taxed splittable contributions]
If the application requests a split of taxed splittable contributions, the trustee may give effect to the application only if the amount specified in the application is no more than the element taxed in the fund of the taxable component that would form part of the superannuation benefit that would be payable if the member withdrew the member's entire benefits at the time of the trustee giving effect to the application.
History
Reg 6.45(4) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 78, by substituting "element taxed in the fund of the taxable component that would form part of the superannuation benefit" for "taxed element of the post-June 83 component that would form part of the ETP", effective 1 July 2007.
Reg 6.45(3), (4) and (5) substituted for reg 6.45(3) and (4) by SLI No 189 of 2006, reg 3 and Sch 1 item 15, effective 18 July 2006. Reg 6.45(4) formerly read:
6.45(4)
If the application requests a split of taxed splittable contributions the trustee can only give effect to the application where the amount specified in the application is less than or equal to the taxed element of the post-June 83 component that would form part of the ETP that would be payable if the member withdrew the member's entire benefits at the time of the trustee giving effect to the application.
6.45(5)
[Application to split untaxed splittable employer contributions]
If the application requests a split of untaxed splittable employer contributions, the trustee may give effect to the application only if the amount specified in the application is no more than the element untaxed in the fund of the taxable component that would form part of the superannuation benefit that would be payable if the member withdrew the member's entire benefits at the time of the trustee giving effect to the application.
History
Reg 6.45(5) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 79, by substituting "element untaxed in the fund of the taxable component that would form part of the superannuation benefit" for "untaxed element of the post-June 83 component that would form part of the ETP", effective 1 July 2007.
Reg 6.45(3), (4) and (5) substituted for reg 6.45(3) and (4) by SLI No 189 of 2006, reg 3 and Sch 1 item 15, effective 18 July 2006.
History
Reg 6.45 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
REGULATION 6.46
6.46
RECEIVING SPOUSE
For this Part, if a trustee accepts an application made under subregulation 6.44(1), the applicant's spouse is a
receiving spouse
.
History
Reg 6.46 inserted by SLI No 334 of 2005, reg 3 and Sch 2 item 10, effective 1 January 2006.
Division 6.8 - Conditions for the use of tax file numbers to facilitate consolidation or rollover
History
Div 6.8 inserted by SLI No 278 of 2011, reg 3 and Sch 1 item 1, effective 1 January 2012.
REGULATION 6.47
6.47
DEFINITIONS FOR DIVISION 6.8
In this Division:
beneficiary
means a person who quotes his or her tax file number to a trustee in accordance with subsection 299LA(1) of the Act, and that is:
(a)
a beneficiary of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme; or
(b)
an applicant to become such a beneficiary.
RSA provider or superannuation entity
means an RSA provider, eligible superannuation entity or regulated exempt public sector superannuation scheme.
trustee
means a trustee of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme.
History
Reg 6.47 inserted by SLI No 278 of 2011, reg 3 and Sch 1 item 1, effective 1 January 2012.
REGULATION 6.48
6.48
CONDITIONS FOR USE OF TAX FILE NUMBERS
For subsection 299LA(2) of the Act, this Division contains the conditions for the use of tax file numbers quoted by a beneficiary to a trustee in accordance with subsection 299LA(1) of the Act.
History
Reg 6.48 inserted by SLI No 278 of 2011, reg 3 and Sch 1 item 1, effective 1 January 2012.
REGULATION 6.49
6.49
CONSENT TO USE BENEFICIARY'S TAX FILE NUMBER
A trustee must obtain the consent of the beneficiary to use the beneficiary's tax file number in order to facilitate the consolidation of amounts for a beneficiary by undertaking either or both of the procedures in regulation 6.50.
History
Reg 6.49 inserted by SLI No 278 of 2011, reg 3 and Sch 1 item 1, effective 1 January 2012.
REGULATION 6.50
6.50
PROCEDURE FOR SEARCHING FOR AMOUNTS TO FACILITATE CONSOLIDATION BY ROLLOVER
In order to facilitate the consolidation of amounts for a beneficiary, a trustee must use either or both of the following procedures to determine whether amounts are held for the beneficiary by another RSA provider or superannuation entity:
(a)
seeking superannuation information relating to the beneficiary using a facility provided by the Australian Taxation Office;
(b)
contacting an RSA provider or superannuation entity to seek superannuation information relating to the beneficiary.
History
Reg 6.50 inserted by SLI No 278 of 2011, reg 3 and Sch 1 item 1, effective 1 January 2012.
PART 6A - PORTABILITY FORMS
History
Pt 6A inserted by SLI No 14 of 2013, reg 3 and Sch 1 item 7, effective 19 February 2013.
REGULATION 6A.01
ESTABLISHMENT OF SCHEME
6A.01(1)
The purpose of this Part is to establish a scheme under which:
(a)
a member of a regulated superannuation fund or approved deposit fund may give the Commissioner of Taxation a request to roll over or transfer the member's withdrawal benefit held by the fund; and
(b)
the Commissioner of Taxation may pass the request mentioned in paragraph (a) to the trustee of the fund.
6A.01(2)
This Part is made for section 34A of the Act.
6A.01(3)
Words and expressions in this Part have the same meaning as in Part 6.
History
Reg 6A.01 inserted by SLI No 14 of 2013, reg 3 and Sch 1 item 7, effective 19 February 2013.
REGULATION 6A.02
REQUEST TO ROLLOVER OR TRANSFER WITHDRAWAL BENEFIT
6A.02(1)
A member of a regulated superannuation fund or an approved deposit fund may give the Commissioner of Taxation a request to roll over or transfer the member's withdrawal benefit held by the fund if:
(a)
Division 6.5 of Part 6 applies to the fund and withdrawal benefit; and
(b)
the Commissioner of Taxation holds information about the member's interest in the regulated superannuation fund or approved deposit fund; and
(c)
the request is to roll over or transfer an amount that is the whole of the member's withdrawal benefit to a complying superannuation fund.
6A.02(2)
The request to the Commissioner of Taxation must:
(a)
be in the approved form; and
(b)
contain the information required by the Commissioner.
History
Reg 6A.02 inserted by SLI No 14 of 2013, reg 3 and Sch 1 item 7, effective 19 February 2013.
REGULATION 6A.03
VERIFICATION OF DATA
6A.03(1)
The Commissioner of Taxation must:
(a)
confirm the identity of the member and his or her membership of the complying superannuation fund to which the roll over or transfer is to be made; and
(b)
confirm the ownership of the withdrawal benefit; and
(c)
identify the account in the complying superannuation fund to which the roll over or transfer is to be made; and
(d)
then give the request to the trustee of the fund that holds the member's withdrawal benefit.
6A.03(2)
Despite subregulation (1), the Commissioner may decline to give the request to the trustee if:
(a)
the request does not comply with the requirements mentioned in regulation 6A.02; or
(b)
it appears to the Commissioner that conduct has been, is being, or is proposed to be, engaged in by a trustee or an investment manager of the complying superannuation fund to which the roll over or transfer is to be made that is likely to adversely affect the values of the interests of beneficiaries of that fund.
History
Reg 6A.03(2) amended by SLI No 317 of 2012, reg 4 and Sch 2 items 2-3, by repealing para (b) and renumbering para (c) to para (b), effective 1 July 2013. Former para (b) formerly read:
(b)
the trustee does not have the capacity to receive the request electronically; or
History
Reg 6A.03 inserted by SLI No 14 of 2013, reg 3 and Sch 1 item 7, effective 19 February 2013.
PART 7 - CONTRIBUTION AND BENEFIT ACCRUAL STANDARDS (REGULATED SUPERANNUATION FUNDS)
Division 7.1 - General
History
Division 7.1 heading inserted by SR No 84 of 2004, reg 3 and Sch 1 item 4, effective 12 May 2004.
REGULATION 7.01
INTERPRETATION
7.01(1)
In this Division, a reference to the accrual of benefits in a fund does not include:
(a)
allocations of investment earnings or charging of costs; or
(b)
benefits rolled over or transferred into the fund.
7.01(1A)
(Repealed by FRLI No F2022L00241)
History
Reg 7.01(1A) repealed by FRLI No F2022L00241, reg 4 and Sch 1 item 12, effective 1 April 2022. For application provision, see reg 14.32. Reg 7.01(1A) formerly read:
7.01(1A)
In this Division:
child
means an individual who is under age 18.
Reg 7.01(1A) inserted by SR No 150 of 2002, reg 3 and Sch 1 item 11, effective 1 July 2002.
7.01(2)
Expressions used in this Division that are defined for the purposes of Part 5 have the same meanings respectively as in that Part.
7.01(3)
(Repealed by FRLI No F2022L00241)
History
Reg 7.01(3) (including the note) repealed by FRLI No F2022L00241, reg 4 and Sch 1 item 13, effective 1 April 2022. For application provision, see reg 14.32. Reg 7.01(3) (including the note) formerly read:
7.01(3)
In this Part, a person is gainfully employed on a part-time basis during a financial year if the person was gainfully employed for at least 40 hours in a period of not more than 30 consecutive days in that financial year.
Note:
Gainfully employed
is defined in regulation 1.03
Reg 7.01(3) amended by SLI No 74 of 2007, reg 3 and Sch 1 items 17 and 18, by substituting "was gainfully employed" for "has worked" and inserting the note, effective 3 April 2007.
Reg 7.01(3) inserted by SR No 148 of 2004, reg 3 and Sch 1 item 9, effective 1 July 2004.
History
Reg 7.01 amended by SR No 84 of 2004, reg 3 and Sch 1 item 5, by substituting "this Division" for each mention of "this Part", effective 12 May 2004.
REGULATION 7.02
7.02
APPLICATION OF DIVISION 7.1
This Division applies only to regulated superannuation funds.
History
Reg 7.02 amended by SR No 84 of 2004, reg 3 and Sch 1 item 7, by substituting "Division" for "Part", effective 12 May 2004.
Reg 7.02 substituted by SR No 117 of 1997.
REGULATION 7.03
RESTRICTION ON ACCEPTING CONTRIBUTIONS OR GRANTING BENEFIT ACCRUALS
7.03(1)
[Application of standard]
For the purposes of subsection 31(1) of the Act, the requirement in subregulation (2) is a standard applicable to the operation of a regulated superannuation fund to which this Division applies.
7.03(2)
[Restriction]
Except in accordance with this Division, a regulated superannuation fund must not:
(a)
accept contributions; or
(b)
grant an accrual of benefits.
History
Reg 7.03 amended by SR No 84 of 2004, reg 3 and Sch 1 item 8, by substituting ``Division'' for each mention of ``Part'', effective 12 May 2004.
REGULATION 7.03A
ACCEPTANCE OF CONTRIBUTIONS - REGISTRABLE SUPERANNUATION ENTITIES
7.03A(1)
[Application of standard]
For paragraph 31(2)(d) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is a regulated superannuation fund.
History
Reg 7.03A(1) (including the note) substituted by SLI No 113 of 2004, reg 3 and Sch 2 item 10, effective 1 July 2006. Reg 7.03A(1), including the note, formerly read:
7.03A(1)
For paragraph 31(2)(d) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is a regulated superannuation fund:
(a)
that came into existence on or after the start of the licensing transition period; and
(b)
for which there is an RSE licensee.
Note:
Licensing transition period
is defined in subsection 10(1) of the Act.
7.03A(2)
[Standard]
A trustee of the registrable superannuation entity must not accept contributions unless the registrable superannuation entity is registered under Part 2B of the Act.
History
Reg 7.03A inserted by SR No 113 of 2004, reg 3 and Sch 1 item 12, effective 1 July 2004.
REGULATION 7.04
ACCEPTANCE OF CONTRIBUTIONS - REGULATED SUPERANNUATION FUNDS
7.04(1)
A regulated superannuation fund may accept contributions only in accordance with the following table and subregulations (1A), (2), (4) and (6).
|
Acceptance of contributions
|
|
Item
|
If a member:
|
then the fund may accept contributions made in respect of the member that are:
|
| 1 |
is less than 55 years |
(a) |
employer contributions; or |
| |
|
(b) |
member contributions. |
| 2 |
is between 55 and 74 years |
(a) |
employer contributions; or |
| (b) |
member contributions. |
| 3 |
is 75 years or older |
(a) |
mandated employer contributions; or |
| |
|
(b) |
downsizer contributions. |
Note:
For table item 2, member contributions include downsizer contributions.
History
Reg 7.04(1) amended by FRLI No F2022L01286, reg 4 and Sch 1 item 5, by substituting the table, effective 1 January 2023. For application provision, see note under reg 14.34. The table formerly read:
|
Item
|
If a member …
|
the fund may accept contributions made in respect of the member that are…
|
| 1 |
is under 60 |
(a) |
employer contributions; or |
| |
|
(b) |
member contributions |
| 2 |
is not under 60, but is under 75 |
(a) |
employer contributions; or |
| (b) |
member contributions (including downsizer contributions) |
| 3 |
is not under 75 |
(a) |
mandated employer contributions; or |
| |
|
(b) |
downsizer contributions |
Note:
There is an exception for amounts relating to some CGT small business concessions (see subregulation (6A)).
Reg 7.04(1) amended by FRLI No F2022L00241, reg 4 and Sch 1 items 14 and 15, by inserting "(1A)," and substituting the table, effective 1 April 2022. For application provision, see reg 14.32. The table formerly read:
|
Item
|
If the member …
|
the fund may accept …
|
| 1 |
is under 65 |
contributions that are made in respect of the member |
| 1A |
is not under 65, but is under 67 |
contributions that are made in respect of the member that are: |
| |
|
(a) |
mandated employer contributions; or |
| |
|
(b) |
employer contributions (except mandated employer contributions); or |
| |
|
(c) |
member contributions; or |
| |
|
(d) |
downsizer contributions |
| 2 |
is not under 67, but is under 70 |
contributions that are made in respect of the member that are: |
| |
|
(a) |
mandated employer contributions; or |
| |
|
(b) |
if the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made: |
| |
|
|
(i) |
employer contributions (except mandated employer contributions); or |
| |
|
|
(ii) |
member contributions; or |
| |
|
(c) |
downsizer contributions; or |
| |
|
(d) |
if the member has not been gainfully employed, either on a full-time or a part-time basis, during the financial year in which the contributions are made, but all of the requirements mentioned in subregulation (1A) are satisfied for the member: |
| |
|
|
(i) |
employer contributions (except mandated employer contributions); or |
| |
|
|
(ii) |
member contributions |
| 3 |
is not under 70, but is under 75 |
contributions that are made in respect of the member that are: |
| |
|
(a) |
mandated employer contributions; or |
| |
|
(b) |
if the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made - contributions received on or before the day that is 28 days after the end of the month in which the member turns 75 that are: |
| |
|
|
(i) |
employer contributions (except mandated employer contributions); or |
| |
|
|
(ii) |
member contributions; or |
| |
|
(c) |
downsizer contributions; or |
| |
|
(d) |
if the member has not been gainfully employed, either on a full-time or a part-time basis, during the financial year in which the contributions are made, but all of the requirements mentioned in subregulation (1A) are satisfied for the member - contributions received on or before the day that is 28 days after the end of the month on which the member turns 75 that are: |
| |
|
|
(i) |
employer contributions (except mandated employer contributions); or |
| |
|
|
(ii) |
member contributions |
| 4 |
is not under 75 |
mandated employer contributions or downsizer contributions |
Reg 7.04(1) amended by FRLI No F2020L00645, reg 4 and Sch 1 items 6-9, by inserting table item 1A, substituting "67" for "65" in table item 2, column headed "If the member …", omitting "made by the member" after "member contributions" from para (b)(ii) of table item 3, column headed "the fund may accept …" and "made by the member" after "member contributions" from para (d)(ii) in table item 3, column headed "the fund may accept …", effective 30 May 2020 and applicable in relation to contributions made in the 2020-21 financial year and later financial years.
Reg 7.04(1) amended by FRLI No F2018L01682, reg 4 and Sch 1 items 5 and 6, by inserting para (d) in table items 2 and 3, column headed "the fund may accept ...", effective 1 January 2019.
Reg 7.04(1) amended by FRLI No F2018L00210, reg 4 and Sch 2 items 4 and 5, by inserting para (c) in table items 2 and 3, column headed "the fund may accept ..." and "or downsizer contributions" in table item 4, effective 8 March 2018.
Reg 7.04(1) amended by FRLI No F2017L00321, reg 4 and Sch 3 item 7, by omitting "(3)," after "(2),", applicable in relation to the financial year starting on 1 July 2017 and later financial years.
Reg 7.04(1) amended by FRLI No F2016L00518, reg 4 and Sch 2 item 1, by inserting the note at the end, applicable in relation to look-through earnout rights (within the meaning of the Income Tax Assessment Act 1997) created on or after 24 April 2015.
Reg 7.04(1) amended by SLI No 91 of 2015, reg 4 and Sch 1 items 36 and 37, by substituting "contributions." for "contributions; or" in para (b)(ii) and repealing para (c) in table item 2, column headed "the fund may accept ...", effective 1 July 2015. For application and transitional provisions see note under Div 3A.4 heading. Para (c) in table item 2, column headed "the fund may accept ..." formerly read:
(c)
payments from an FHSA of a kind mentioned in subparagraph 31(1)(b)(i) or (ii) of the FHSA Act
Reg 7.04(1) amended by SLI No 171 of 2008, reg 3 and Sch 1 item 3, by substituting table item 2, effective 9 August 2008. Table item 2 formerly read:
2 ... is not under 65, but is under 70 ... contributions that are made in respect of the member that are: ... (a) mandated employer contributions; or ... (b) if the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made: ... (i) employer contributions (except mandated employer contributions); or ... (ii) member contributions;
7.04(1A)
Despite items 2 and 3 of the table in subregulation (1), the fund may also accept contributions made in respect of a member, and received on or before the day that is 28 days after the end of the month in which the member turns 75 years, that are:
(a)
employer contributions other than mandated employer contributions; or
(b)
member contributions other than downsizer contributions.
Note:
Other rules may be relevant to making certain contributions in respect of a member. For example:
(a) downsizer contributions are limited to persons aged 55 or over (see paragraph 292-102(1)(a) of the 1997 Tax Act); and
(b) there are rules about deducting personal contributions to a superannuation fund (see Subdivision 290-C of the 1997 Tax Act). In particular, work test conditions apply to deducting certain contributions made from age 67 until the day referred to in subregulation (1A) (see subsection 290-165(1A) of the 1997 Tax Act).
History
Reg 7.04(1A) amended by FRLI No F2022L01286, reg 4 and Sch 1 items 6 and 7, by inserting "years" and substituting "55" for "60" in para (a) of the note, effective 1 January 2023. For application provision, see note under reg 14.34.
Reg 7.04(1A) substituted by FRLI No F2022L00241, reg 4 and Sch 1 item 16, effective 1 April 2022. For application provision, see reg 14.32. Reg 7.04(1A) formerly read:
7.04(1A)
For the purposes of paragraph (d) of item 2 or 3 of the table in subregulation (1), the requirements are the following:
(a) the member has been gainfully employed on at least a part-time basis during the financial year (the
previous financial year
) ending before the financial year in which the contributions are made;
(b) the member has a total superannuation balance (within the meaning of section 307-230 of the 1997 Tax Act) of less than $300,000 at the end of the previous financial year;
(c) no contributions have been accepted by a regulated superannuation fund in respect of the member, in the previous financial year or any earlier financial year, because of the operation of paragraph (d) of item 2 or 3 of the table in subregulation (1);
(d) no contributions have been accepted by an RSA institution in respect of the member, in the previous financial year or any earlier financial year, because of the operation of paragraph (d) of item 2 or 3 of the table in subregulation 5.03(1) of the Retirement Savings Accounts Regulations 1997.
Reg 7.04(1A) inserted by FRLI No F2018L01682, reg 4 and Sch 1 item 7, effective 1 January 2019.
7.04(2)
In addition to subregulations (1) and (1A), the regulated superannuation fund must not accept any member contributions if the member's tax file number has not been quoted (for superannuation purposes) to the trustee of the fund.
History
Reg 7.04(2) amended by FRLI No F2022L00241, reg 4 and Sch 1 item 17, by substituting "subregulations (1) and (1A)" for "subregulation (1)", effective 1 April 2022. For application provision, see reg 14.32.
7.04(3)
(Repealed by FRLI No F2017L00321)
History
Reg 7.04(3) repealed by FRLI No F2017L00321, reg 4 and Sch 3 item 8, applicable in relation to the financial year starting on 1 July 2017 and later financial years. Reg 7.04(3) formerly read:
7.04(3)
In addition to subregulation (1), the regulated superannuation fund must not accept any fund-capped contributions in a financial year in respect of a member that exceed:
(a)
if the member is 64 or less on 1 July of the financial year - three times the amount of the non-concessional contributions cap; or
(b)
if the member is 65 but less than 75 on 1 July of the financial year - the non-concessional contributions cap.
7.04(4)
If a regulated superannuation fund receives an amount in a manner that is inconsistent with subregulation (1), (1A) or (2):
(a)
the fund must return the amount to the entity or person that paid the amount within 30 days of becoming aware that the amount was received in a manner that is inconsistent with subregulation (1), (1A) or (2), unless:
(i)
the amount was received in a manner that is inconsistent with subregulation (2); and
(ii)
the member's tax file number is quoted (for superannuation purposes) within 30 days of the amount being received by the trustee of the fund; and
(b)
the fund is also authorised to take any of the following action to the extent that the rules of the fund allow:
(i)
if the price at which the interest could have been acquired on the day on which the amount is returned is less than the price on the day on which the interest was acquired, the amount that would otherwise be returned to the entity or person that paid the amount may be reduced by the amount of the difference between the prices;
(ii)
if the price at which the interest could have been acquired on the day of return of the amount is greater than the price on the day on which the interest was acquired, the amount that would otherwise be returned to the entity or person that paid the amount may be increased by the amount of the difference between the prices;
(iii)
if the price at which the interest could be acquired cannot be determined in accordance with the contract or legal relationship on the day on which the amount is returned, the price is to be determined:
(A)
on the basis of the most recent day on which a price was calculated in accordance with the contract or legal relationship; or
(B)
if there is no day of that kind - as soon as practicable after the decision is made to return the amount;
(iv)
in addition to subparagraph (i), the amount that would, but for this subparagraph, be returned to the entity or person that paid the amount may be reduced to account for reasonable administration costs and transaction costs, incurred by the fund, that:
(A)
are reasonably related to the acquisition ofthe interest and the return of the amount; and
(B)
do not exceed the true cost of an arms' length transaction;
other than costs related to commissions or similar benefits;
(v)
if:
(A)
the interest is a risk insurance interest, or the part of an interest that is a risk insurance interest; and
(B)
the interest has been issued for a specific period, or the premium for the interest has been paid in relation to cover for a specific period; and
(C)
a proportion of the specific period has already passed when the decision is made to return the amount to the entity or person that paid the amount;
the amount that would otherwise be returned to the entity or person that paid the amount may be reduced by the sum of:
(D)
that part of any amount received in a manner inconsistent with subregulation (1), (1A) or (2) as has been paid by the fund to any person in connection with the risk insurance product and which is not recoverable by the fund from that person; and
(E)
the proportion equal to the proportion of the period that has passed of the difference between the amount that would otherwise be returned and the amount referred to in (a).
History
Reg 7.04(4) amended by FRLI No F2022L00241, reg 4 and Sch 1 items 18-20, by inserting ", (1A)" (first occurring), ", (1A)" in para (a) and ", (1A)" in para (b)(v)(D), effective 1 April 2022. For application provision, see reg 14.32.
Reg 7.04(4) amended by FRLI No F2017L00321, reg 4 and Sch 3 items 9-11, by substituting "or (2)" for ", (2) or (3)" (first and second occurring), substituting para (a)(i) and (ii) and "or (2)" for ", (2) or (3)" in para (b)(v)(D), applicable in relation to the financial year starting on 1 July 2017 and later financial years. Para (a)(i) and (ii) formerly read:
(i)
for an amount received in a manner that is inconsistent with subregulation (2) - the member's tax file number is quoted (for superannuation purposes) within 30 days of this amount being received by the trustee of the fund; or
(ii)
for an amount received in a manner that is inconsistent with subregulation (3) - a valid notice under section 290-170 of the Income Tax Assessment Act 1997 is received by the trustee of the fund within 30 days of this amount being received by the trustee of the fund; and
Reg 7.04(4) amended by SLI No 204 of 2007, reg 3 and Sch 1 item 12, by substituting "entity or person that paid the amount" for "member" in para (4)(a), (4)(b)(i), (ii) and (iv), (4)(b)(v)(C) and (4)(b)(v), effective 1 July 2007.
[
CCH Note: Modification Declaration No 2 of 2007
(No 2 of 2007, registered on and effective from 31 July 2007.)
Regulation 7.04 of the Regulations is modified by replacing subparagraph (4)(a)(i) with:
for an amount received in a manner that is inconsistent with subregulation (2):
(A)
the member's tax file number is quoted (for superannuation purposes) within 30 days of this amount being received by the trustee of the fund; or
(B)
the member's only interest in the fund is a risk insurance interest and, by 31 December 2007:
I.
the member's tax file number is quoted (for superannuation purposes); or
II.
the trustee of the fund returns the amount received to the entity or person that paid the amount; or
]
[
CCH Note: Modification Declaration No 3 of 2007
(No 3 of 2007, registered on and effective from 19 November 2007.)
Subregulation 7.04(4), as modified by Modification Declaration No. 2 of 2007, is modified by inserting the following exception at the end of paragraph (a):
(C) the amount was a government co-contribution payment in respect of a member contribution, where the member contribution was made prior to 1 July 2007; or
]
7.04(5)
If a regulated superannuation fund acts under subregulation (4), the fund is taken not to have contravened the Act or these Regulations in relation to the acceptance of the amount or in relation to the return of the amount to the entity or person that paid the amount of the fund.
History
Reg 7.04(5) amended by SLI No 204 of 2007, reg 3 and Sch 1 item 12, by substituting "entity or person that paid the amount" for "member", effective 1 July 2007.
7.04(6)
A regulated superannuation fund may accept contributions in respect of a member if the trustee is reasonably satisfied that the contribution is in respect of a period during which, under an item in the table in subregulation (1) or under subregulation (1A), the fund may accept the contribution in respect of that member, even though the contribution is actually made after that period.
History
Reg 7.04(6) amended by FRLI No F2022L00241, reg 4 and Sch 1 item 21, by inserting "or under subregulation (1A)", effective 1 April 2022. For application provision, see reg 14.32.
7.04(6A)
Despite subregulations (1) and (1A), the regulated superannuation fund may accept, as a contribution, an amount to the extent that the amount does not exceed the member's CGT cap amount if:
(a)
were the amount to be accepted as a contribution, it could be covered under section 292-100 (certain CGT-related payments) of the Income Tax Assessment Act 1997 in relation to a CGT event referred to in that section; and
(b)
the capital proceeds from the CGT event were or could have been affected by one or more financial benefits received under a look-through earnout right; and
(c)
that subregulation would not have prevented the fund from accepting the amount as a contribution had it been made to the fund in the financial year in which the CGT event happened.
Note:
The CGT event is the one referred to in whichever of subsections 292-100(2), (4), (7) and (8) of that Act that could cause the amount to be covered under that subsection.
History
Reg 7.04(6A) amended by FRLI No F2022L00241, reg 4 and Sch 1 item 22, by substituting "subregulations (1) and (1A)" for "subregulation (1)", effective 1 April 2022. For application provision, see reg 14.32.
Reg 7.04(6A) inserted by FRLI No F2016L00518, reg 4 and Sch 2 item 2, applicable in relation to look-through earnout rights (within the meaning of the Income Tax Assessment Act 1997) created on or after 24 April 2015.
7.04(7)
In this regulation:
administration costs
has the same meaning as in subregulation 5.01(1).
capital proceeds
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "capital proceeds" inserted by FRLI No F2016L00518, reg 4 and Sch 2 item 3, applicable in relation to look-through earnout rights (within the meaning of the Income Tax Assessment Act 1997) created on or after 24 April 2015.
CGT cap amount
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "CGT cap amount" inserted by FRLI No F2016L00518, reg 4 and Sch 2 item 3, applicable in relation to look-through earnout rights (within the meaning of the Income Tax Assessment Act 1997) created on or after 24 April 2015.
CGT event
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "CGT event" inserted by FRLI No F2016L00518, reg 4 and Sch 2 item 3, applicable in relation to look-through earnout rights (within the meaning of the Income Tax Assessment Act 1997) created on or after 24 April 2015.
downsizer contribution
means a contribution covered under section 292-102 of the 1997 Tax Act.
History
Definition of "downsizer contribution" inserted by FRLI No F2018L00210, reg 4 and Sch 2 item 6, effective 8 March 2018.
employer contributions
has the same meaning as in subregulation 1.03(1).
FHSA
(Repealed by SLI No 91 of 2015)
History
Definition of "FHSA" repealed by SLI No 91 of 2015, reg 4 and Sch 1 item 38, effective 1 July 2015. For application and transitional provisions see note under Div 3A.4 heading. The definition formerly read:
FHSA
has the meaning given by section 8 of the FHSA Act.
Definition of "FHSA" inserted by SLI No 171 of 2008, reg 3 and Sch 1 item 4, effective 9 August 2008.
financial benefit
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "financial benefit" inserted by FRLI No F2016L00518, reg 4 and Sch 2 item 3, applicable in relation to look-through earnout rights (within the meaning of the Income Tax Assessment Act 1997) created on or after 24 April 2015.
look-through earnout right
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "look-through earnout right" inserted by FRLI No F2016L00518, reg 4 and Sch 2 item 3, applicable in relation to look-through earnout rights (within the meaning of the Income Tax Assessment Act 1997) created on or after 24 April 2015.
mandated employer contributions
has the same meaning as in subregulation 5.01(1).
member contributions
has the same meaning as in subregulation 5.01(1).
fund-capped contributions
(Repealed by FRLI No F2017L00321)
History
Definition of "fund-capped contributions" repealed by FRLI No F2017L00321, reg 4 and Sch 3 item 12, applicable in relation to the financial year starting on 1 July 2017 and later financial years. The definition formerly read:
fund-capped contributions
means the member contributions described in the definition of that expression in subregulation 5.01(1), other than the following:
(a)
a contribution to which a valid and acknowledged notice under section 290-170 of the Income Tax Assessment Act 1997 relates;
(b)
a contribution that meets the requirements of paragraph 292-95(1)(d) of the Income Tax Assessment Act 1997;
(c)
a contribution that meets the requirements of subsection 292-100(9) of the Income Tax Assessment Act 1997;
(d)
a payment made by the Commissioner of Taxation under section 65 of the Superannuation Guarantee (Administration) Act 1992;
(e)
a payment made by the Commissioner of Taxation under section 61 or 61A of the Small Superannuation Accounts Act 1995;
(f)
a Government co-contribution made under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003;
(g)
a contribution that is a directed termination payment within the meaning of section 82-10F of the Income Tax (Transitional Provisions) Act 1997.
non-concessional contributions cap
(Repealed by FRLI No F2017L00321)
History
Definition of "non-concessional contributions cap" repealed by FRLI No F2017L00321, reg 4 and Sch 3 item 12, applicable in relation to the financial year starting on 1 July 2017 and later financial years. The definition formerly read:
non-concessional contributions cap
means the amount mentioned in subsection 292-85(2) of the Income Tax Assessment Act 1997.
quoted (for superannuation purposes)
has the same meaning as in the Income Tax Assessment Act 1997.
superannuation provider
(Repealed by FRLI No F2022L00241)
History
Definition of "superannuation provider" repealed by FRLI No F2022L00241, reg 4 and Sch 1 item 23, effective 1 April 2022. For application provision, see reg 14.32. The definition formerly read:
superannuation provider
means:
(a)
the trustee of a complying superannuation fund; or
(b)
the trustee of a constitutionally protected fund, within the meaning of the Income Tax Assessment Act 1997.
tax file number
has the meaning given by section 299W of the Act.
transaction costs
means any of the following:
(a)
brokerage paid because of an investment transaction;
(b)
a cost arising from maintenance of a property investment;
(c)
stamp duty on an investment transaction.
History
Reg 7.04 substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 80, effective 1 July 2007. Reg 7.04 formerly read:
REGULATION 7.04 ACCEPTANCE OF CONTRIBUTIONS - REGULATED SUPERANNUATION FUNDS
7.04(1)
Subject to subregulation (2), a regulated superannuation fund may accept contributions that are made in respect of a member who is under age 65.
History
Reg 7.04(1) substituted by SR No 148 of 2004, reg 3 and Sch 1 item 10, effective 1 July 2004. Reg 7.04(1) formerly read:
7.04(1)
Subject to subregulation (2), a regulated superannuation fund may accept contributions that are made in respect of a member who is under age 65 only if:
(a)
the contributions are mandated employer contributions; or
(b)
the contributions are not mandated employer contributions and the member:
(i)
has, at any time in the period of 2 years immediately preceding the date of acceptance, engaged in full-time or part-time gainful employment; or
(ii)
ceased full-time or part-time gainful employment because of ill-health (whether physical or mental) that, at the date of acceptance, prevents the member from engaging in employment of the kind that the member engaged in at the onset of the ill-health; or
(iii)
is on authorised leave from his or her employer, and:
(A)
the leave is for the purposes of raising children of whom the member is a parent, or for whom he or she has assumed the responsibility of a parent; and
(B)
he or she has been on that leave for less than 7 years consecutively; and
(C)
he or she has a statutory or contractual right to resume employment at the end of the leave; and
(D)
either:
(I)
he or she was a member of the fund immediately before going on the leave; or
(II)
the fund is a fund of which the employer is a standard employer-sponsor; or
(c)
the contributions are eligible spouse contributions; or
(d)
the contributions are in satisfaction of an entitlement under a payment split; or
(e)
subject to subregulation (1E), the contributions are made in respect of a child, other than:
(i)
contributions made in respect of the child by, or on behalf of, an employer of the child; and
(ii)
contributions made by a child in respect of himself or herself; or
(f)
the contributions are made:
(i)
in respect of a person who is entitled to a first child tax offset under Subdivision 61-I of the Income Tax Assessment Act 1997; and
(ii)
within 1 year after the person was notified by the Commissioner of Taxation that the person is entitled to the first child tax offset; or
(g)
the contributions are made as Government co-contributions under the Co-contribution Act.
Reg 7.04(1) amended by SR No 12 of 2004, reg 3 and Sch 1 items 7, 8 and 9, by substituting "split; or" for "split." in para (d), substituting "offset; or" for "offset." in para (f)(ii) and inserting para (g), effective 20 February 2004.
Reg 7.04(1) amended by SR No 353 of 2001, reg 3 and Sch 1 item 42, by inserting para (d), effective 28 December 2002.
Reg 7.04(1)(e) and (f) inserted by SR No 150 of 2002, reg 3 and Sch 1 items 12 and 13, effective 1 July 2002.
Reg 7.04(1) amended by SR No 293 of 1997 and SR No 432 of 1994.
7.04(1A)
(Repealed by SR No 148 of 2004)
History
Reg 7.04(1A) repealed by SR No 148 of 2004, reg 3 and Sch 1 item 11, effective 1 July 2004. Reg 1.04(1A) formerly read:
7.04(1A)
In subparagraph (1)(b)(iii):
'authorised leave'
, in relation to a member of a fund, means leave that is:
(a)
approved by the member's employer; or
(b)
authorised by:
(i)
a law of the Commonwealth, a State or a Territory; or
(ii)
an agreement certified, or an award made, by a tribunal or body having the authority to do so under a law of the Commonwealth, a State or a Territory.
Reg 7.04(1A) inserted by SR No 432.
7.04(1B)
Subject to subregulations (1E) and (2), a regulated superannuation fund may accept contributions that are made in respect of a member who has reached age 65 but not age 70 only if:
(a)
the contributions are mandated employer contributions; or
(b)
the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made.
History
Reg 7.04(1B) amended by SLI No 74 of 2007, reg 3 and Sch 1 item 19, by substituting "subregulations (1E) and (2)" for "subregulation (2)", effective 3 April 2007.
Reg 7.04(1B) amended by SR No 148 of 2004, reg 3 and Sch 1 item 12, by substituting para (b), effective 1 July 2004. Para (b) formerly read:
(b)
the member is gainfully employed on a part-time or full-time basis.
Reg 7.04(1B) inserted by SR No 117 of 1997.
7.04(1C)
Subject to subregulations (1E) and (2), a regulated superannuation fund may accept contributions that are made in respect of a member who has reached age 70 but not age 75 only if:
(a)
the contributions are mandated employer contributions; or
(b)
the contributions are made by the member in respect of the member and the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made.
History
Reg 7.04(1C) amended by SLI No 74 of 2007, reg 3 and Sch 1 item 20, by substituting "Subject to subregulations (1E) and (2)" for "Subject to subregulations (2)", effective 3 April 2007.
Reg 7.04(1C) amended by SR No 148 of 2004, reg 3 and Sch 1 item 13, by substituting para (b), effective 1 July 2004. Para (b) formerly read:
(b)
the contributions are made by the member in respect of the member and the member is gainfully employed on a full-time or part-time basis.
Reg 7.04(1C) substituted by SR No 150 of 2002, reg 3 and Sch 1 item 14, effective 1 July 2002. Reg 7.04(1C) formerly read:
7.04(1C)
Subject to subregulation (2), a regulated superannuation fund may accept contributions that are made in respect of a member who has reached age 70 only if the contributions are mandated employer contributions.
Reg 7.04(1C) inserted by SR No 117 of 1997.
7.04(1D)
Subject to subregulations (1E) and (2), a regulated superannuation fund may accept contributions that are made in respect of a member who has reached age 75 only if the contributions are mandated employer contributions.
History
Reg 7.04(1D) amended by SLI No 74 of 2007, reg 3 and Sch 1 item 21, by substituting "Subject to subregulations (1E) and (2)" for "Subject to subregulation (2)", effective 3 April 2007.
Reg 7.04(1D) inserted by SR No 150 of 2002, reg 3 and Sch 1 item 14, effective 1 July 2002.
7.04(1E)
A regulated superannuation fund may accept contributions that are made by a member in respect of the member:
(a)
in accordance with an item in the following table; and
(b)
during the period specified in the item.
|
Item
|
If the member …
|
the fund may accept contributions that are made by the member in respect of the member if …
|
| 1 |
was 64 at any time between 10 May 2006 and 5 September 2006 (inclusive) |
the contributions are made in the period 10 May 2006 to 30 June 2007 (inclusive), whether or not the member has been gainfully employed on at least a part-time basis |
| 2 |
was 74 at any time between 10 May 2006 and 5 September 2006 (inclusive) |
(a) the contributions are made in the period 10 May 2006 to 30 June 2007 (inclusive); and
(b) the member was gainfully employed on at least a part-time basis in either the 2005-06 or 2006-07 financial year |
History
Reg 7.04(1E) inserted by SLI No 74 of 2007, reg 3 and Sch 1 item 22, effective 3 April 2007.
7.04(1E)
(Repealed by SR No 148 of 2004)
History
Reg 7.04(1E) repealed by SR No 148 of 2004, reg 3 and Sch 2 item 3, effective 1 September 2004. Reg 7.04(1E) formerly read:
7.04(1E)
A regulated superannuation fund must not accept child contributions made in respect of a child of a total of more than $3 000 in each period of 3 years beginning on the date that the first child contribution is made in respect of the child.
Reg 7.04(1E) amended by SR No 148 of 2004, reg 3 and Sch 1 item 14, by substituting "A regulated" for "For paragraph (1)(e), a regulated", effective 1 July 2004.
Reg 7.04(1C), (1D) and (1E) substituted for reg 7.04(1C) by SR No 150 of 2002, reg 3 and Sch 1 item 14, effective 1 July 2002.
7.04(2)
A regulated superannuation fund may accept contributions in respect of a member if the trustee is reasonably satisfied that the contribution is in respect of a period during which, under subregulation (1), (1B), (1C) or (1D), the fund may accept the contribution in respect of that member, even though the contribution is actually made after that period.
History
Reg 7.04(2) amended by SR No 150 of 2002, reg 3 and Sch 1 item 15, by substituting "subregulation (1), (1B), (1C) or (1D)," for "subregulation (1), (1B) or (1C)," effective 1 July 2002.
Reg 7.04(2) amended by SR No 117 of 1997.
REGULATION 7.04A
ACCEPTANCE OF CONTRIBUTIONS - PUBLIC OFFER SUPERANNUATION FUNDS
7.04A(1)
[Applicable standard]
For paragraph 31(2)(d) of the Act, the standard mentioned in subregulation (2) applies to a regulated superannuation fund that is a public offer superannuation fund.
7.04A(2)
[Contributions not acceptable]
If:
(a)
a person is a member of a standard employer-sponsored fund; and
(b)
the person is employed by another employer (the
new employer
) who is not a standard employer-sponsor of the fund;
the fund must not make its acceptance of contributions from the new employer in respect of the member conditional upon the new employer becoming a standard employer-sponsor of the fund.
History
Reg 7.04A inserted by SLI No 204 of 2007, reg 3 and Sch 1 item 11, effective 1 July 2007.
REGULATION 7.05
ACCRUAL OF BENEFITS - DEFINED BENEFIT FUNDS
7.05(1)
Subject to subregulation (5), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who is under age 65.
7.05(2)
Subject to subregulation (5), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who has reached age 65 but not age 75 only if the accrual is attributable to contributions made in respect of the member that are:
(a)
employer contributions; or
(b)
member contributions.
History
Reg 7.05(2) substituted by FRLI No F2022L00241, reg 4 and Sch 1 item 24, effective 1 April 2022. For application provision, see reg 14.32. Reg 7.05(2) formerly read:
7.05(2)
Subject to subregulation (5), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who has reached age 65 but not age 70 only if:
(a)
the accrual is attributable to mandated employer contributions; or
(b)
the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made.
7.05(3)
(Repealed by FRLI No F2022L00241)
History
Reg 7.05(3) repealed by FRLI No F2022L00241, reg 4 and Sch 1 item 24, effective 1 April 2022. For application provision, see reg 14.32. Reg 7.05(3) formerly read:
7.05(3)
Subject to subregulation (5), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who has reached age 70 but not age 75 only if:
(a)
the accrual is attributable to mandated employer contributions; or
(b)
the accrual is attributable to:
(i)
contributions made by the member in respect of the member; or
(ii)
contributions made by the employer that are not mandated employer contributions;
and the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made.
7.05(4)
Subject to subregulation (5), a defined benefit fund may grant an accrual of benefits in respect of a member who has reached age 75 only if the accrual is attributable to mandated employer contributions.
7.05(5)
A defined benefit fund may grant an accrual of benefits in respect of a member if the trustee is reasonably satisfied that the accrual is in respect of a period during which, under subregulation (1), (2) or (4), the fund may grant an accrual of benefits in respect of that member, even though the grant occurs after that period.
History
Reg 7.05(5) amended by FRLI No F2022L00241, reg 4 and Sch 1 item 25, by omitting ", (3)" after "(2)", effective 1 April 2022. For application provision, see reg 14.32.
History
Reg 7.05 substituted by SLI No 74 of 2007, reg 5 and Sch 3 item 80, effective 1 July 2007. Reg 7.05 formerly read:
REGULATION 7.05 ACCRUAL OF BENEFITS - DEFINED BENEFIT FUNDS
7.05(1)
Subject to subregulation (2), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who is under age 65.
History
Reg 7.05(1) substituted by SR No 148 of 2004, reg 3 and Sch 1 item 15, effective 1 July 2004. Reg 7.05(1) formerly read:
7.05(1)
Subject to subregulation (2), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who is under age 65 only if:
(a)
the member has, at any time in the period of 2 years immediately preceding the grant of accrual, engaged in full-time or part-time gainful employment; or
(ba)
the member is on authorised leave from his or her employer and:
(i)
the leave is for the purposes of raising children of whom he or she is a parent, or for whom he or she has assumed the responsibility of a parent; and
(ii)
he or she has been on that leave for less than 7 years consecutively; and
(iii)
he or she has a statutory or contractual right to resume employment at the end of the leave; and
(iv)
either:
(A)
he or she was a member of the fund immediately before going on the leave; or
(B)
the fund is a fund of which the employer is a standard employer-sponsor; or
(b)
the member ceased full-time or part-time gainful employment because of ill-health (whether physical or mental) that, at the date of the grant of accrual, prevents the member from engaging in employment of the kind in which the member engaged at the onset of the ill-health; or
(c)
the accrual is attributable to mandated employer contributions; or
(d)
the accrual is attributable to eligible spouse contributions; or
(e)
the accrual is attributable to child contributions; or
(f)
both:
(i)
the member is entitled to a first child tax offset under Subdivision 61-I of the Income Tax Assessment Act 1997; and
(ii)
the accrual is granted within 1 year after the person was notified by the Commissioner of Taxation that the person is entitled to the first child tax offset; or
(g)
the accrual is attributable to Government co-contributions under the Co-contribution Act.
Reg 7.05(1) amended by SR No 12 of 2004, reg 3 and Sch 1 items 10 and 11, by substituting "offset; or" for "offset." in para (f)(ii) and inserting para (g), effective 20 February 2004.
Reg 7.05(1)(e) and (f) inserted by SR No 150 of 2002, reg 3 and Sch 1 item 17, effective 1 July 2002.
Reg 7.05(1) amended by SR No 293 of 1997 and SR No 432 of 1994.
7.05(1A)
(Repealed by SR No 148 of 2004)
History
Reg 7.05(1A) repealed by SR No 148 of 2004, reg 3 and Sch 1 item 16, effective 1 July 2004. Reg 7.05(1A) formerly read:
7.05(1A)
In paragraph (1)(ba):
'authorised leave'
, in relation to a member of a fund, means leave that is:
(a)
approved by the member's employer; or
(b)
authorised by:
(i)
a law of the Commonwealth, a State or a Territory; or
(ii)
an agreement certified, or an award made, by a tribunal or body having the authority to do so under a law of the Commonwealth, a State or a Territory.
Reg 7.05(1A) inserted by SR No 432.
7.05(1B)
Subject to subregulation (2), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who has reached age 65 but not age 70 only if:
(a)
the accrual is attributable to mandated employer contributions; or
(b)
the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made.
History
Reg 7.05(1B) amended by SR No 148 of 2004, reg 3 and Sch 1 item 17, by substituting para (b), effective 1 July 2004. Para (b) formerly read:
(b)
the member is gainfully employed on a part-time or full-time basis.
Reg 7.05(1B) inserted by SR No 117 of 1997.
7.05(1C)
Subject to subregulation (2), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who has reached age 70 but not age 75 only if:
(a)
the accrual is attributable to mandated employer contributions; or
(b)
the accrual is attributable to contributions made by the member in respect of the member (other than contributions made by the employer that are not mandated employer contributions) and the member has been gainfully employed on at least a part-time basis during the financial year in which the contributions are made.
History
Reg 7.05(1C) amended by SR No 148 of 2004, reg 3 and Sch 1 item 18, by substituting para (b), effective 1 July 2004. Para (b) formerly read:
(b)
the accrual is attributable to contributions made by the member in respect of the member (other than contributions made by the employer that are not mandated employer contributions) and the member is gainfully employed on a full-time or part-time basis.
Reg 7.05(1C) substituted by SR No 150 of 2002, reg 3 and Sch 1 item 18, effective 1 July 2002. Reg 7.04(1C) formerly read:
7.05(1C)
Subject to subregulation (2), a defined benefit fund may grant an accrual of benefits in respect of a member of the fund who has reached age 70 only if the accrual is attributable to mandated employer contributions.
Reg 7.05(1C) inserted by SR No 117 of 1997.
7.05(1D)
Subject to subregulation (2), a defined benefit fund may grant an accrual of benefits in respect of a member who has reached age 75 only if the accrual is attributable to mandated employer contributions.
History
Reg 7.05(1D) inserted by SR No 150 of 2002, reg 3 and Sch 1 item 18, effective 1 July 2002.
7.05(2)
A defined benefit fund may grant an accrual of benefits in respect of a member if the trustee is reasonably satisfied that the accrual is in respect of a period during which, under subregulation (1), (1B), (1C) or (1D), the fund may grant an accrual of benefits in respect of that member, even though the grant occurs after that period.
History
Reg 7.05(2) amended by SR No 150 of 2002, reg 3 and Sch 1 item 19, by substituting ``subregulation (1), (1B), (1C) or (1D),'' for ``subregulation (1), (1B) or (1C),'' effective 1 July 2002.
Reg 7.05(2) amended by SR No 117 of 1997.
Division 7.2 - Contributions to be allocated to members
History
Div 7.2 heading substituted by SLI No 317 of 2012, reg 4 and Sch 2 item 4, effective 1 July 2013. The heading formerly read:
Division 7.2 - Contributions to be allocated to members - accumulation funds
Division 7.2 inserted by SR No 84 of 2004, reg 3 and Sch 1 item 9, effective 12 May 2004.
Subdivision 7.2.1 - Superannuation data and payment matters
History
Subdivs 7.2.1 and 7.2.2 substituted for regs 7.06, 7.07 and 7.08 by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013. Regs 7.06, 7.07 and 7.08 formerly read:
SECTION 7.06
REGULATION 7.06 APPLICATION OF DIVISION 7.2
7.06
This Division applies only to an accumulation interest.
History
Reg 7.06 amended by SLI No 105 of 2007, reg 3 and Sch 1 item 8, by substituting "accumulation interest" for "accumulation fund", effective 1 July 2007.
Reg 7.06 inserted by SR No 84 of 2004, reg 3 and Sch 1 item 9, effective 12 May 2004.
SECTION 7.07
REGULATION 7.07 OPERATING STANDARD
7.07
For subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds.
History
Reg 7.07 amended by SLI No 105 of 2007, reg 3 and Sch 1 item 9, by omitting "that are accumulation funds" from the end, effective 1 July 2007.
Reg 7.07 inserted by SR No 84 of 2004, reg 3 and Sch 1 item 9, effective 12 May 2004.
REGULATION 7.08 CONTRIBUTIONS TO BE ALLOCATED TO MEMBERS
7.08(1)
If, on or before 31 May 2008, the trustee of a defined benefit fund receives a contribution in a month in relation to an accumulation interest, the trustee must allocate the contribution to a member of the fund by 30 June 2008.
7.08(2)
If a trustee receives a contribution in a month in relation to an accumulation interest, and subregulation (1) does not apply, the trustee must allocate the contribution to a member of the fund:
(a)
within 28 days after the end of the month; or
(b)
if it is not reasonably practicable to allocate the contribution to the member of the fund within 28 days after the end of the month - within such longer period as is reasonable in the circumstances.
History
Reg 7.08 substituted by SLI No 105 of 2007, reg 3 and Sch 1 item 10, effective 1 July 2007. Reg 7.08 formerly read:
REGULATION 7.08 CONTRIBUTIONS TO BE ALLOCATED TO MEMBERS
7.08
If a trustee of an accumulation fund receives a contribution in a month, the trustee must allocate the contribution to a member of the fund:
(a)
within 28 days after the end of the month; or
(b)
if it is not reasonably practicable to allocate the contribution to the member of the fund within 28 days after the end of the month - within such longer period as is reasonable in the circumstances.
Reg 7.08 inserted by SR No 84 of 2004, reg 3 and Sch 1 item 9, effective 12 May 2004.
REGULATION 7.07
7.07
SUPERANNUATION DATA AND PAYMENT MATTERS
For subsection 34K(1) of the Act, regulations 7.07A to 7.07H prescribe matters to be complied with.
History
Reg 7.07 substituted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013. For former wording see note under Subdiv 7.2.1 heading.
REGULATION 7.07AA
APPLICATION
7.07AA(1)
This regulation is made for subitem 20(6) of Part 4 of Schedule 1 to the Superannuation Legislation Amendment (Stronger Super) Act 2012 (the
amending Act
).
7.07AA(2)
This subdivision applies in relation to a medium to large employer on 1 July 2014 in relation to conduct that occurs on or after 1 July 2014.
7.07AA(3)
This subdivision applies in relation to a small employer on 1 July 2015 in relation to conduct that occurs on or after 1 July 2015.
7.07AA(4)
In this regulation:
medium to large employer
has the meaning given by subitem 20(4) of Part 4 of Schedule 1 to the amending Act.
small employer
has the meaning given by subitem 20(4) of Part 4 of Schedule 1 to the amending Act.
History
Reg 7.07AA inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07A
INITIAL REGISTRATION OF EMPLOYEE
7.07A(1)
This regulation applies to an employer if:
(a)
the employer makes a contribution for an employee to a regulated superannuation fund on or after the commencement of Part 3B; and
(b)
the employer has not previously made a contribution to the fund for the employee; and
(c)
the contribution is not to:
(i)
a self managed superannuation fund; or
(ii)
a fund chosen by the employee.
7.07A(2)
The employer must, before or on the same day as the employer makes the first contribution, give the following information to the fund:
(a)
the employee's full name;
(b)
the employee's date of birth;
(c)
the employee's tax file number;
(d)
the employee's sex;
(e)
the employee's residential address.
7.07A(3)
However, subregulation (2) does not apply if the employer has made reasonable efforts to get the information from the employee but has been unable to do so.
Note:
Standards made under subsection 34K(3) of the Act may set out how the information in subregulation (2) is to be given to the fund (for example, electronically), and may set out additional information that must be given.
History
Reg 7.07A inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07B
VALIDATION OF INITIAL REGISTRATION INFORMATION
7.07B(1)
This regulation applies to the trustee of a regulated superannuation fund, other than a self managed superannuation fund, if:
(a)
the fund receives the following information for a member from an employer in accordance with regulation 7.07A:
(i)
full name;
(ii)
tax file number;
(iii)
date of birth; and
(b)
the information is given to the fund in the way required by any applicable Standards made under subsection 34K(3) of the Act.
7.07B(2)
The trustee must ask the Commissioner of Taxation, using an electronic interface provided by the Commissioner, for a notice under subsection 299TD(2) of the Act in relation to the member.
7.07B(3)
However, subregulation (2) does not apply if the Commissioner has previously given the trustee a notice under subsection 299TD(2) of the Act stating that the Commissioner was able to validate the member's information given by the trustee.
7.07B(4)
The trustee must make the request not later than 3 business days after receiving the information.
History
Reg 7.07B inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07C
7.07C
TRUSTEE MAY GIVE MEMBERSHIP OR ACCOUNT NUMBER TO COMMISSIONER OF TAXATION
The trustee of a regulated superannuation fund may give the Commissioner of Taxation the membership number, or account number, for a member of the fund.
History
Reg 7.07C inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07D
INVALID INITIAL REGISTRATION INFORMATION
7.07D(1)
This regulation applies to the trustee of a regulated superannuation fund, other than a self managed superannuation fund, if the Commissioner of Taxation gives the trustee a notice under subsection 299TD(2) of the Act stating that the Commissioner is not able to validate the information given to the Commissioner by the trustee under regulation 7.07B.
7.07D(2)
The trustee must, not later than 5 business days after receiving the Commissioner's notice, ask the employer to confirm the following information for the member:
(a)
full name;
(b)
tax file number;
(c)
date of birth;
(d)
residential address.
7.07D(3)
If an employer receives a request from a trustee under subregulation (2), the employer must make all reasonable efforts to give the trustee the complete or correct information for the employee not later than 10 business days after receiving the request.
History
Reg 7.07D inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07E
EMPLOYEE DETAILS FOR CONTRIBUTION
7.07E(1)
This regulation applies to an employer who makes a contribution for an employee to a regulated superannuation fund, unless:
(a)
the fund is a self managed superannuation fund; and
(b)
the employer is a related party of the fund.
7.07E(2)
The employer must give the following information to the fund in relation to the contribution:
(a)
the employee's full name;
(b)
the employee's residential address;
(c)
the employee's tax file number;
(d)
the employee's telephone number.
7.07E(3)
However, the employer is not required to give the information mentioned in subregulation (2) to the fund if:
(a)
the employee has not given the information to the employer, and the employer has made reasonable efforts to obtain the information from the employee; or
(b)
the fund is a self managed superannuation fund and the employer is a related party of the fund.
7.07E(4)
The employer must give the information to the fund on the same day as the employer makes the contribution to the fund.
Note:
Standards made under subsection 34K(3) of the Act may set out how the information in subregulation (2) is to be given to the fund, additional information that must be given, and how the contribution must be made.
7.07E(5)
The employer must assign a payment reference number to the contribution and include the payment reference number with the contribution.
7.07E(6)
(Repealed by SLI No 127 of 2014)
History
Reg 7.07E(6) repealed by SLI No 127 of 2014, reg 4 and Sch 3 item 2, effective 27 August 2014. Reg 7.07E(6) formerly read:
7.07E(6)
The payment reference number must be unique to:
(a)
the contribution; or
(b)
a number of contributions made together on the same day by the employer.
Note:
Standards made under subsection 34K(3) of the Act may set out how the payment reference number is to be determined.
History
Reg 7.07E inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07EA
EMPLOYEE DETAILS MAY BE PASSED THROUGH DEFAULT FUND
7.07EA(1)
An employer may comply with regulation 7.07E by giving to a default fund for the employer information that would otherwise be required by that regulation to be given to any other regulated superannuation fund.
7.07EA(2)
If the employer gives information as mentioned in subregulation (1), the employer:
(a)
must give the information on the same day that the information would otherwise be required to be given to the other regulated superannuation fund; and
(b)
in doing so, must comply with any applicable Standards made under subsection 34K(3) of the Act.
7.07EA(3)
The default fund must pass the information on to the other regulated superannuation fund and, in doing so, comply with any applicable Standards made under subsection 34K(3) of the Act.
7.07EA(4)
In this regulation:
default fund
, in relation to an employer, means an RSE licensee:
(a)
authorised to offer a MySuper product under section 29T of the Act; and
(b)
to which the employer mentioned in subregulation (1) makes contributions for the benefit of any of its employees in compliance with subsection 32C(2) of the Superannuation Guarantee (Administration) Act 1992.
History
Reg 7.07EA inserted by SLI No 211 of 2014, reg 4 and Sch 1 item 1, effective 17 December 2014.
REGULATION 7.07F
INFORMATION AND CONTRIBUTIONS SENT ELECTRONICALLY
7.07F(1)
A regulated superannuation fund must be able to receive the following electronically:
(a)
contributions sent to the fund by an employer;
(b)
information sent to the fund under regulation 7.07A in relation to a contribution;
(c)
information sent to the fund under regulation 7.07E or 7.07EA;
(d)
any other information relating to a contribution sent to the fund.
7.07F(2)
Subregulation (1) does not apply if:
(a)
the fund is a self managed superannuation fund and the information or contribution is sent by a related party of the fund; or
(b)
the information or contribution is not sent in accordance with any applicable Standards made under subsection 34K(3) of the Act.
Note:
Standards made under subsection 34K(3) of the Act may set out additional requirements for how information and contributions are to be received by the fund.
History
Reg 7.07F substituted by SLI No 211 of 2014, reg 4 and Sch 1 item 2, effective 17 December 2014. Reg 7.07F formerly read:
REGULATION 7.07F SUPERANNUATION FUND MUST ELECTRONICALLY RECEIVE CONTRIBUTIONS AND INFORMATION
7.07F(1)
This regulation applies on and after 1 July 2014 to a regulated superannuation fund if:
(a)
any of the following is sent to the fund by an employer:
(i)
the information mentioned in subregulation 7.07A(2);
(ii)
a contribution and the information mentioned in subregulation 7.07E(2);
(iii)
any other information relating to a contribution; and
(b)
the information is sent to the fund on or after 1 July 2014; and
(c)
the information is, or the information and contribution are, sent to the fund in accordance with any applicable Standards made under subsection 34K(3) of the Act.
History
Reg 7.07F(1) amended by SLI No 61 of 2013, reg 4 and Sch 2 item 17, by substituting "on and after 1 July 2014" for "from 1 July 2014", effective 1 July 2013.
7.07F(2)
However, this regulation does not apply if the fund is a self managed superannuation fund and the employer is a related party of the fund.
7.07F(3)
The fund must be able to receive the information, or the information and contribution, electronically.
Note:
Standards made under subsection 34K(3) of the Act may set out additional requirements for how the information and contribution are to be received by the fund.
Reg 7.07F inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07G
INCOMPLETE CONTRIBUTION INFORMATION
7.07G(1)
This regulation applies to the trustee of a regulated superannuation fund, other than a self managed superannuation fund, if:
(a)
the fund receives a contribution from an employer for a member of the fund; and
(b)
either or both of the following applies:
(i)
the contribution is the first contribution received by the fund for the member from the employer, and the employer, before or with the contribution, did not provide any of the information mentioned in subregulation 7.07A(2);
(ii)
the contribution is not accompanied by all of the information mentioned in subregulation 7.07E(2); and
(c)
the contribution is not being made to a defined benefit interest.
7.07G(2)
The trustee must, not later than 5 business days after receiving the contribution, ask the employer to give the trustee the correct and complete information mentioned in subregulation 7.07A(2) or 7.07E(2) for the member.
History
Reg 7.07G(2) amended by SLI No 61 of 2013, reg 4 and Sch 2 item 18, by substituting "the contribution" for "the information", effective 1 July 2013.
7.07G(3)
If an employer receives a request from a trustee under subregulation (2), the employer must make all reasonable efforts to give the trustee the complete or correct information for the member not later than 10 business days after receiving the request.
7.07G(4)
If the trustee is still unable to allocate the contribution to a member, the trustee must refund the contribution to the employer not later than 20 business days after receiving the contribution.
7.07G(5)
If a contribution is refunded under subregulation (4), the contribution is taken not to have been made to the fund by the employer.
History
Reg 7.07G inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.07H
CONTRIBUTIONS TO BE ALLOCATED TO MEMBER
7.07H(1)
This regulation applies to the trustee of a superannuation fund, other than a self managed superannuation fund, if:
(a)
all of the following apply:
(i)
the fund receives a contribution from an employer for a member;
(ii)
the contribution is not required to be allocated in accordance with regulation 7.11;
(iii)
the contribution was made in accordance with any applicable Standards made under subsection 34K(3) of the Act;
(iv)
the information mentioned in subregulation 7.07E(2) for the employee was given by the employer to the fund;
(v)
the information was given in accordance with any applicable Standards made under subsection 34K(3) of the Act; or
(b)
both of the following apply:
(i)
the fund receives a contribution from the Commissioner of Taxation for a member;
(ii)
the Commissioner made the contribution in accordance with any applicable Standards specified under subsection 34K(3) of the Act that would apply if the contribution were being made by an employer.
History
Reg 7.07H(1) amended by FRLI No F2021L00199, reg 4 and Sch 1 item 5, by substituting "regulation 7.11" for "regulation 292-170.03 of the Income Tax Assessment Regulations 1997" in para (a)(ii), effective 1 April 2021 and applicable in relation to any contribution received on or after 1 July 2021.
7.07H(2)
If the trustee accepts the contribution, and receives it in accordance with any applicable Standards made under subsection 34K(3) of the Act, the trustee must allocate the contribution to the member as soon as practicable, but in any case not later than 3 business days after both the contribution and the information mentioned in subregulation 7.07E(2) have been received by the trustee.
Note:
Regulation 7.08 provides an operating standard for the allocation of contributions to which this regulation and subregulation 7.07G(4) do not apply.
History
Reg 7.07H inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
Subdivision 7.2.2 - Operating standards
History
Subdivs 7.2.1 and 7.2.2 substituted for regs 7.06, 7.07 and 7.08 by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013. For former wording see note under Subdiv 7.2.1 heading.
REGULATION 7.07J
APPLICATION
7.07J(1)
This regulation is made for subitem 20(6) of Part 4 of Schedule 1 to the Superannuation Legislation Amendment (Stronger Super) Act 2012 (the
amending Act
).
7.07J(2)
Regulations 7.07 and 7.08, as in force immediately before 1 July 2013, apply in relation to contributions made by a medium to large employer before 1 July 2014.
7.07J(3)
Regulations 7.07 and 7.08, as in force immediately before 1 July 2013, apply in relation to contributions made by a small employer before 1 July 2015.
7.07J(4)
In this regulation:
medium to large employer
has the meaning given by subitem 20(4) of Part 4 of Schedule 1 to the amending Act.
small employer
has the meaning given by subitem 20(4) of Part 4 of Schedule 1 to the amending Act.
History
Reg 7.07J inserted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013.
REGULATION 7.08
CONTRIBUTIONS TO BE ALLOCATED TO MEMBERS
7.08(1)
This regulation applies to the trustee of a regulated superannuation fund if:
(a)
the trustee receives a contribution in a month; and
(b)
regulation 7.07H and subregulation 7.07G(4) do not apply to the trustee in relation to the contribution; and
(c)
the trustee is not required to allocate the contribution in accordance with regulation 7.11.
History
Reg 7.08(1) amended by FRLI No F2021L00199, reg 4 and Sch 1 item 6, by substituting "regulation 7.11" for "regulation 292-170.03 of the Income Tax Assessment Regulations 1997" in para (c), effective 1 April 2021 and applicable in relation to any contribution received on or after 1 July 2021.
7.08(2)
For subsection 31(1) of the Act, the trustee must allocate the contribution to a member of the fund:
(a)
not later than 28 days after the end of the month; or
(b)
if it is not reasonably practicable to allocate the contribution to the member of the fund not later than 28 days after the end of the month - within such longer period as is reasonable in the circumstances.
History
Reg 7.08 substituted by SLI No 317 of 2012, reg 4 and Sch 2 item 5, effective 1 July 2013. For former wording see note under Subdiv 7.2.1 heading.
Division 7.3 - Contributions to be allocated to members - certain other regulated superannuation funds
History
Div 7.3, comprising reg 7.09-7.11, inserted by SLI No 105 of 2007, reg 3 and Sch 1 item 11, effective 1 July 2007.
REGULATION 7.09
7.09
APPLICATION OF DIVISION 7.3
This Division applies in relation to a regulated superannuation fund to which section 291-170.03 of the Income Tax Assessment (1997 Act) Regulations 2021 applies.
History
Reg 7.09 substituted by FRLI No F2021L00199, reg 4 and Sch 1 item 7, effective 1 April 2021 and applicable in relation to any contribution received on or after 1 July 2021. Reg 7.09 formerly read:
REGULATION 7.09 APPLICATION OF DIVISION 7.3
7.09
This Division applies only to a regulated superannuation fund that is required to allocate contributions in accordance with regulation 292-170.03 of the Income Tax Assessment Regulations 1997.
Reg 7.09 inserted by SLI No 105 of 2007, reg 3 and Sch 1 item 11, effective 1 July 2007.
REGULATION 7.10
7.10
OPERATING STANDARD
For subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds in relation to which this Division applies.
History
Reg 7.10 amended by FRLI No F2021L00199, reg 4 and Sch 1 item 8, by substituting "in relation to which this Division applies" for "that are required to allocate contributions in accordance with regulation 292-170.03 of the Income Tax Assessment Regulations 1997", effective 1 April 2021 and applicable in relation to any contribution received on or after 1 July 2021.
Reg 7.10 inserted by SLI No 105 of 2007, reg 3 and Sch 1 item 11, effective 1 July 2007.
REGULATION 7.11
7.11
CONTRIBUTIONS TO BE ALLOCATED TO MEMBERS
If the trustee of the fund receives a contribution in a month, the trustee must allocate the contribution:
(a)
to a member of the fund:
(i)
within 28 days after the end of the month; or
(ii)
if it is not reasonably practicable to comply with subparagraph (i) - within a longer period that is reasonable in the circumstances; and
(b)
having regard to the present and prospective liabilities of the fund to its members.
History
Reg 7.11 substituted by FRLI No F2021L00199, reg 4 and Sch 1 item 9, effective 1 April 2021 and applicable in relation to any contribution received on or after 1 July 2021. Reg 7.11 formerly read:
REGULATION 7.11 CONTRIBUTIONS TO BE ALLOCATED TO MEMBERS
7.11
If a trustee is required to allocate a contribution in a month in accordance with regulation 292-170.03 of the Income Tax Assessment Regulations 1997, the trustee must allocate the contribution to a member of the fund:
(a)
within 28 days after the end of the month; or
(b)
if it is not reasonably practicable to allocate the contribution to the member of the fund within 28 days after the end of the month - within such longer period as is reasonable in the circumstances.
Reg 7.11 inserted by SLI No 105 of 2007, reg 3 and Sch 1 item 11, effective 1 July 2007.
PART 7A - SUPERANNUATION INTERESTS SUBJECT TO PAYMENT SPLIT
History
Pt 7A inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
Division 7A.1 - General
History
Div 7A.1 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.01
7A.01
PURPOSE OF PART 7A
The purpose of this Part is:
(a)
to facilitate the payment splitting arrangements established under Parts VIIIB and VIIIC of the Family Law Act 1975; and
(b)
to provide for additional options that may be exercised in relation to superannuation interests that are subject to a payment split under that Act.
History
Reg 7A.01 amended by FRLI No F2021L01893, reg 4 and Sch 1 item 193, by substituting "Parts VIIIB and VIIIC" for "Part VIIIB" in para (a), effective 28 September 2022.
Reg 7A.01 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.01A
7A.01A
RELEVANT CONDITION OF RELEASE
In this Part:
(a)
relevant condition of release
means a condition of release mentioned in item 101, 102, 103, 106, 201, 202, 203 or 206 of Schedule 1; and
(b)
a non-member spouse satisfies a relevant condition of release if the event specified in the condition has occurred in relation to the non-member spouse; and
(c)
in the application of item 101, 103, 201 or 203 of Schedule 1 to a non-member spouse, a reference to a member in:
(i)
the definition of
permanent incapacity
in subregulation 6.01(2); or
(ii)
the definition of
retirement
in subregulations 6.01(2) and (7);
is taken to be a reference to the non-member spouse.
History
Reg 7A.01A inserted by SR No 153 of 2004, reg 3 and Sch 1 item 12, effective 25 June 2004.
REGULATION 7A.02
7A.02
OPERATING STANDARDS
For subsections 31(1) and 32(1) of the Act, the standards set out in this Part are applicable to the operation of regulated superannuation funds and approved deposit funds.
History
Reg 7A.02 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.03
TRUSTEE TO GIVE PAYMENT SPLIT NOTICE
7A.03(1)
[When notification necessary]
If an interest in a regulated superannuation fund or an approved deposit fund becomes subject to a payment split, the trustee of the fund must notify the member spouse and the non-member spouse in relation to the interest that the interest is subject to a payment split.
7A.03(2)
[Nature of notification]
The notice must:
(a)
be in writing; and
(b)
state the date on which it is given.
7A.03(3)
[Period for giving notice]
The notice must be given:
(a)
for a payment split under a superannuation agreement or flag lifting agreement - within 28 days after the operative time for the payment split; and
(b)
for a payment split under a splitting order - by the later of:
(i)
the end of 28 days after the operative time for the payment split; and
(ii)
the end of 28 days after the trustee receives a copy of the order.
7A.03(4)
[Where payment split ceases]
Despite subregulation (1), the trustee is not required to give a payment split notice in respect of an interest if the interest ceases to be subject to a payment split:
(a)
before the end of the period applying under subregulation (3); and
(b)
for a reason other than the creation of a non-member spouse interest under regulation 7A.03B.
Note: A non-member spouse may also be entitled to information under section 1017C of the Corporations Act 2001, Division 2.5 and Division 2.5A.
History
Reg 7A.03(4) and note substituted by SR No 353, reg 3 and Sch 1 items 29 and 30, effective 28 December 2002. Reg 7A.03(4) and note formerly read:
7A.03(4)
Despite subregulation (1), the trustee is not required to give a payment split notice in respect of an interest if the interest ceases to be subject to the payment split before the end of the period applying under subregulation (3).
Note: See Divisions 2.5A and 2.6 in relation to other information that the trustee must give to a non-member spouse in relation to a superannuation interest that is subject to a payment split.
Reg 7A.03 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
Division 7A.1A - Options for trustee in relation to interests
History
Div 7A.1A heading substituted by SR No 153 of 2004, reg 3 and Sch 1 item 13, effective 25 June 2004. Div 7A.1A heading formerly read:
Division 7A.1A - Options for trustee in relation to allocated pension interests
Div 7A.1A inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03A
APPLICATION OF DIVISION 7A.1A
7A.03A(1)
This Division applies in relation to a superannuation interest (the
original interest
) in a regulated superannuation fund, if:
(a)
the original interest is subject to a payment split; and
(b)
an allocated pension, market linked pension or account-based pension is being paid in respect of the original interest; and
(c)
the trustee:
(i)
has not received a request under regulation 7A.05, 7A.06 or 7A.07; and
(ii)
has not taken an action under regulation 7A.10 in relation to the original interest.
History
Reg 7A.03A(1) amended by No 84 of 2013, s 3 and Sch 8 item 8, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b), effective 1 July 2007.
Reg 7A.03A(1) amended by SR No 148 of 2004, reg 3 and Sch 3 item 26, by substituting "allocated pension or market linked pension" for "allocated pension" in para (b), effective 20 September 2004.
7A.03A(2)
Subject to subregulation (3), this Division also applies in relation to a superannuation interest (the
original interest
) in a regulated superannuation fund, if:
(a)
the original interest is subject to a payment split; and
(b)
the original interest is an accumulation interest in the growth phase; and
(c)
the trustee:
(i)
has not received a request under regulation 7A.05, 7A.06 or 7A.07; and
(ii)
has not taken an action under regulation 7A.10 in relation to the original interest.
History
Reg 7A.03A(2) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 15, effective 25 June 2004.
7A.03A(3)
This Division does not apply to an accumulation interest:
(a)
if:
(i)
the interest is a partially vested accumulation interest; and
(ii)
the transferable benefits in relation to the accumulation interest would be greater than the withdrawal benefit in relation to the member spouse; or
(b)
if the interest is determined by reference to a traditional life insurance policy.
History
Reg 7A.03A(3) amended by SLI No 127 of 2014, reg 4 and Sch 4 item 2, by substituting "traditional life insurance policy" for "policy of life insurance mentioned in regulation 5.15D" in para (b), effective 27 August 2014.
Reg 7A.03A(3) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 15, effective 25 June 2004.
History
Reg 7A.03A inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03B
TRUSTEE MAY CREATE A NEW INTEREST
7A.03B(1)
The trustee may, at or after the operative time for the payment split, create a new interest for the non-member spouse (the
non-member spouse interest
) in the regulated superannuation fund.
7A.03B(2)
If a trustee creates a non-member spouse interest under subregulation (1), the person known as the non-member spouse at the operative time will continue to be a non-member spouse for the purposes of Part 7A until the trustee takes an action under regulation 7A.03H, 7A.03I, 7A.03J or 7A.03K.
7A.03B(3)
Subject to subregulation (4), the value of the benefits in the non-member spouse interest must be:
(a)
if:
(i)
the payment split is a base amount payment split; and
(ii)
an adjusted base amount applies in relation to the non-member spouse when the interest is created;
the adjusted base amount allocated to the non-member spouse less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(b)
if:
(i)
the payment split is a base amount payment split; and
(ii)
an adjusted base amount does not apply in relation to the non-member spouse when the interest is created;
the base amount allocated to the non-member spouse, within the meaning of section 72 of the Family Law (Superannuation) Regulations 2025, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(c)
if the payment split is a percentage payment split:
(i)
for an entitlement in respect of an interest in a self-managed superannuation fund - the amount in relation to the interest at the time when the new interest is created, determined by a method that a court might use if the court were acting under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(ii)
for an entitlement in respect of an accumulation interest in the growth phase, other than a partially-vested accumulation interest, to which subparagraph (i) does not apply - the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(iii)
for an entitlement in respect of any other interest - the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 6 of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split.
History
Reg 7A.03B(3) amended by FRLI No F2025L00179, reg 4 and Sch 1 items 30-32, by substituting "section 72 of the Family Law (Superannuation) Regulations 2025" for "regulation 45 of the Family Law (Superannuation) Regulations 2001" in para (b), "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" for "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" in para (c)(ii) and "Part 6 of the Family Law (Superannuation) Regulations 2025" for "Part 5 of the Family Law (Superannuation) Regulations 2001"in para (c)(iii), effective 1 April 2025.
Reg 7A.03B(3) amended by FRLI No F2021L01893, reg 4 and Sch 1 item 194, by substituting "90XT(2)(b) or 90YY(2)(b) (as the case may be)" for "90MT(2)(b)" in para (c)(i), effective 28 September 2022.
Reg 7A.03B(3) amended by SR No 148 of 2004, reg 3 and Sch 3 item 27, by substituting "in respect of an accumulation interest in the growth phase," for "in respect of an accumulation interest," in para (c)(ii), effective 20 September 2004.
Reg 7A.03B(3) substituted by SR No 153 of 2004, reg 3 and Sch 1 item 16, effective 25 June 2004. Reg 7A.03B(3) formerly read:
7A.03B(3)
The value of the benefits in the non-member spouse interest must be:
(a)
if the payment split is a base amount payment split - the base amount allocated to the non-member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(b)
if the payment split is a percentage payment split:
(i)
for an entitlement in respect of an interest in a self-managed superannuation fund - the amount in relation to the interest at the time when the new interest is created, determined by a method that a court might use if the court were acting under paragraph 90MT(2)(b) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(ii)
for an entitlement in respect of any other interest - the amount in relation to the interest at the time when the new interest is created, determined in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split.
7A.03B(4)
The value of the benefits in the non-member spouse interest must not be more than the value of the withdrawal benefit in relation to the member spouse and the original interest immediately before the new interest is created.
History
Reg 7A.03B(4) amended by SR No 153 of 2004, reg 3 and Sch 1 item 17, by substituting "immediately before the new interest is created." for "immediately before the payment split.", effective 25 June 2004.
7A.03B(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:
(a)
the value of the benefits that the non-member spouse has in the new interest; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
7A.03B(6)
In creating the new interest:
(a)
a proportion must be taken from the unrestricted non-preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse's interest immediately before the new interest was created.
History
Reg 7A.03B(6) and (6A) substituted for reg 7A.03B(6) by SR No 153 of 2004, reg 3 and Sch 1 item 18, effective 25 June 2004. Reg 7A.03B(6) formerly read:
7A.03B(6)
The benefits in the non-member spouse interest are unrestricted non-preserved benefits.
7A.03B(6A)
The benefits held in the non-member spouse interest are:
(a)
if the original interest is in the growth phase - unrestricted non-preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that they had in the member spouse's interest; and
(b)
if the original interest is an allocated pension, market linked pension or account-based pension - unrestricted non-preserved benefits.
History
Reg 7A.03B(6A) amended by No 84 of 2013, s 3 and Sch 8 item 9, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b), effective 1 July 2007.
Reg 7A.03B(6A) amended by SR No 148 of 2004, reg 3 and Sch 3 item 28, by substituting "allocated pension or market linked pension -" for "allocated pension -" in para (b), effective 20 September 2004.
Reg 7A.03B(6) and (6A) substituted for reg 7A.03B(6) by SR No 153 of 2004, reg 3 and Sch 1 item 18, effective 25 June 2004.
7A.03B(7)
At the time that the payment split notice is given or, if a payment split notice is not required, within 28 days after the later of:
(a)
the operative time; and
(b)
the time when the trustee creates the non-member interest;
the trustee must give to the member spouse and the non-member spouse a written notice stating:
(c)
that the new interest has been created; and
(d)
that the value of the original interest has been reduced; and
(e)
the amount of the non-member spouse interest.
History
Reg 7A.03B(7) substituted by SLI No 332 of 2005, reg 3 and Sch 1 item 15, effective 21 December 2005. Reg 7A.03B(7) formerly read:
7A.03B(7)
At the time that the payment split notice is given or, if a payment split notice is not required, within 28 days after the operative time, the trustee must give to the member spouse and the non-member spouse a written notice stating:
(a)
that the new interest has been created; and
(b)
that the value of the original interest has been reduced; and
(c)
the amount of the non-member spouse interest.
Reg 7A.03B inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03C
7A.03C
REQUEST TO RETAIN A NON-MEMBER SPOUSE INTEREST
The non-member spouse may request the trustee to retain in the regulated superannuation fund the non-member spouse's benefits in the non-member spouse interest.
History
Reg 7A.03C inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03D
REQUEST TO ROLL OVER OR TRANSFER BENEFITS
7A.03D(1)
[Enablement of request]
The non-member spouse may request the trustee to roll over or transfer the withdrawal benefit from the non-member spouse interest to another regulated superannuation fund, or to an approved deposit fund, EPSSS or RSA, specified in the request, to be held for the benefit of the non-member spouse.
7A.03D(2)
[Self managed funds]
If the original interest is in a self-managed superannuation fund, the non-member spouse or the member spouse may request the trustee to roll over or transfer the withdrawal benefit from the non-member spouse interest to another regulated superannuation fund, or to an approved deposit fund, EPSSS or RSA, specified in the request, to be held for the benefit of the non-member spouse.
History
Reg 7A.03D inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03E
7A.03E
REQUEST FOR LUMP SUM PAYMENT
If:
(a)
the non-member spouse has satisfied a relevant condition of release; or
(b)
the original interest:
(i)
is an allocated pension, market linked pension or account-based pension; or
(ii)
comprises only unrestricted non-preserved benefits;
the non-member spouse may request the trustee to pay the withdrawal benefit from the non-member spouse interest to the non-member spouse as a lump sum.
History
Reg 7A.03E amended by No 84 of 2013, s 3 and Sch 8 item 10, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b)(i), effective 1 July 2007.
Reg 7A.03E amended by SR No 148 of 2004, reg 3 and Sch 3 item 29, by substituting "allocated pension or market linked pension;" for "allocated pension;" in para (b), effective 20 September 2004.
Reg 7A.03E substituted by SR No 153 of 2004, reg 3 and Sch 1 item 19, effective 25 June 2004. Reg 7A.03E formerly read:
REGULATION 7A.03E REQUEST FOR LUMP SUM PAYMENT
7A.03E
The non-member spouse may request the trustee to pay the withdrawal benefit from the non-member spouse interest to the non-member spouse as a lump sum.
Reg 7A.03E inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03F
REQUIREMENTS FOR REQUESTS
7A.03F(1)
[Timing]
A request by a person under this Division must be made:
(a)
before the end of 28 days after the trustee gives a payment split notice to the person; or
(b)
if the trustee allows a longer period, before the end of the longer period allowed.
7A.03F(2)
[Written notice]
The request must be made by written notice given to the trustee.
7A.03F(3)
[Requirements for notice]
The notice must:
(a)
be signed by the person making the request; and
(b)
state the date when it is given to the trustee; and
(c)
include the name, date of birth and postal address of the person making the request; and
(d)
for a request made by the member spouse, include a written nomination by the non-member spouse of the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request.
7A.03F(4)
[Withdrawal of request]
The trustee may allow the request to be withdrawn.
History
Reg 7A.03F inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03G
GIVING EFFECT TO A REQUEST
7A.03G(1)
This regulation applies if a trustee receives a request under this Division within the time allowed under subregulation 7A.03F(1).
7A.03G(2)
The trustee must give effect to the request unless:
(a)
the trustee has received an earlier request under this Division in respect of the same interest and the earlier request has not been withdrawn; or
(b)
for a request under regulation 7A.03C:
(i)
the regulated superannuation fund in which the non-member spouse interest is held has no more than 6 members; or
(ii)
the governing rules of the regulated superannuation fund in which the non-member spouse interest is held do not allow the non-member spouse to retain an interest in the fund; or
(c)
for a request under regulation 7A.03D - the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request does not accept the rollover or transfer of benefits for the non-member spouse.
History
Reg 7A.03G(2) amended by FRLI No F2021L00853, reg 4 and Sch 1 item 11, by substituting "no more than 6 members" for "fewer than 5 members" in para (b)(i), effective 1 July 2021.
7A.03G(3)
If subparagraph (2)(b)(i) applies in relation to a request, the trustee must:
(a)
retain the new interest in accordance with the request; or
(b)
roll over or transfer the withdrawal benefit to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(c)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount of the withdrawal benefit to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.03G(3) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 29, by substituting para (b) and (c) for para (b), effective 2 April 2021 and applicable in relation to requests made under Division 7A.1A on or after 1 May 2021. Para (b) formerly read:
(b)
roll over or transfer the withdrawal benefits to:
(i)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
an eligible rollover fund.
Reg 7A.03G(3) and (3A) substituted for reg 7A.03G(3) by SR No 153 of 2004, reg 3 and Sch 1 item 20, effective 25 June 2004. Reg 7A.03G(3) formerly read:
7A.03G(3)
If paragraph (2)(b) or (c) applies, the trustee must roll over or transfer the withdrawal benefit to:
(a)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(b)
an eligible rollover fund.
7A.03G(3A)
If subparagraph (2)(b)(ii), or paragraph (2)(c), applies in relation to a request, the trustee must:
(a)
roll over or transfer the withdrawal benefit to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(b)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount of the withdrawal benefit to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.03G(3A) substituted by FRLI No F2021L00412, reg 4 and Sch 1 item 30, effective 2 April 2021 and applicable in relation to requests made under Division 7A.1A on or after 1 May 2021. Reg 7A.03G(3A) formerly read:
7A.03G(3A)
If subparagraph (2)(b)(ii), or paragraph (2)(c), applies in relation to a request, the trustee must roll over or transfer the withdrawal benefits to:
(a)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(b)
an eligible rollover fund.
Reg 7A.03G(3) and (3A) substituted for reg 7A.03G(3) by SR No 153 of 2004, reg 3 and Sch 1 item 20, effective 25 June 2004.
7A.03G(4)
(Repealed by FRLI No F2021L00412)
History
Reg 7A.03G(4) repealed by FRLI No F2021L00412, reg 4 and Sch 1 item 30, effective 2 April 2021 and applicable in relation to requests made under Division 7A.1A on or after 1 May 2021. Reg 7A.03G(4) formerly read:
7A.03G(4)
If the amount is rolled over or transferred to an eligible rollover fund under paragraph (3)(b) or (3A)(b), the trustee must give to the non-member spouse, within 28 days, a written notice stating:
(a)
that the benefits have been rolled over or transferred to an eligible rollover fund; and
(b)
the name and contact details of the fund; and
(c)
the amount that was rolled over or transferred.
Reg 7A.03G(4) amended by SR No 153 of 2004, reg 3 and Sch 1 item 21, by inserting "or (3A)(b)" after "paragraph (3)(b)", effective 25 June 2004.
History
Reg 7A.03G inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03H
TRUSTEE'S OPTIONS IF NO REQUEST IS RECEIVED
7A.03H(1)
If a trustee does not receive a request under this Division within the time allowed under subregulation 7A.03F(1), the trustee may:
(aa)
create a new interest for the non-member spouse in the regulated superannuation fund in which the original interest is held; or
(a)
subject to subregulation (2), roll over or transfer the withdrawal benefit from the non-member spouse interest to another regulated superannuation fund, or to an approved deposit fund, EPSSS or RSA, nominated by the non-member spouse (subject to the governing rules of the other regulated superannuation fund, the approved deposit fund or EPSSS or the terms and conditions of the RSA) to be held for the benefit of the non-member spouse; or
(b)
if the trustee does not, within the 28-day period specified in paragraph (2)(a), receive from the non-member spouse a written notice nominating a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the withdrawal benefit from the non-member spouse interest may be rolled over or transferred - consider whether it would be in the best interests of the non-member spouse to pay the amount of the withdrawal benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.03H(1) amended by FRLI No F2021L00412, reg 4 and Sch 1 items 31 and 32, by inserting para (aa) and substituting "consider whether it would be in the best interests of the non-member spouse to pay the amount of the withdrawal benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999" for "roll over or transfer the withdrawal benefit from the non-member spouse interest to an eligible rollover fund" in para (b), effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which requests have not, as at 1 May 2021, been made under Division 7A.1A within the time allowed under subregulation 7A.03F(1).
7A.03H(2)
Subject to subregulation (3A), before rolling over or transferring the amount to a regulated superannuation fund, approved deposit fund, EPSSS or RSA under paragraph (1)(a), the trustee must give to the non-member spouse a written notice stating that:
(a)
the non-member spouse has 28 days from the date of the notice in which to nominate, by written notice to the trustee, a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the withdrawal benefit from the non-member spouse interest may be rolled over or transferred; and
(b)
if the non-member spouse does not, within the 28-day period, nominate a regulated superannuation fund, approved deposit fund, EPSSS or RSA for that purpose, the trustee will consider whether it would be in the best interests of the non-member spouse to pay the amount to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.03H(2) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 33, by substituting "consider whether it would be in the best interests of the non-member spouse to pay the amount to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999" for "roll over or transfer the amount to an eligible rollover fund" in para (b), effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which requests have not, as at 1 May 2021, been made under Division 7A.1A within the time allowed under subregulation 7A.03F(1).
Reg 7A.03H(2) amended by SR No 153 of 2004, reg 3 and Sch 1 item 22, by substituting "Subject to subregulation (3A), before rolling over" for "Before rolling over", effective 25 June 2004.
7A.03H(3)
(Repealed by FRLI No F2021L00412)
History
Reg 7A.03H(3) repealed by FRLI No F2021L00412, reg 4 and Sch 1 item 34, effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which requests have not, as at 1 May 2021, been made under Division 7A.1A within the time allowed under subregulation 7A.03F(1). Reg 7A.03H(3) formerly read:
7A.03H(3)
A notice given by the trustee under subregulation (2) must state the name and contact details of the eligible rollover fund to which the amount may be rolled over or transferred.
7A.03H(3A)
If a trustee:
(a)
has made reasonable attempts to obtain sufficient information about a non-member spouse to be able to give a payment split notice; and
(b)
has been unable to obtain sufficient information about the non-member spouse;
the trustee is permitted to act under paragraphs (1)(aa), (a) and (b) as if those paragraphs did not require the giving of the payment split notice or the notice under subregulation (2).
Example for paragraph (a)
The trustee may be unable, after reasonable attempts, to identify an address or location of the non-member spouse.
History
Reg 7A.03H(3A) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 35, by substituting "paragraphs (1)(aa), (a) and (b)" for "paragraphs (1)(a) and (b)", effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which requests have not, as at 1 May 2021, been made under Division 7A.1A within the time allowed under subregulation 7A.03F(1).
Reg 7A.03H(3A) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 23, effective 25 June 2004.
7A.03H(3B)
If a trustee:
(a)
proposes to give a non-member spouse a notice under subregulation (2); and
(b)
has made reasonable attempts to obtain sufficient information about the non-member spouse to be able to give the notice; and
(c)
has been unable to obtain sufficient information about the non-member spouse;
the trustee is not required to give the notice, and is permitted to act under paragraphs (1)(aa), (a) and (b) as if those paragraphs did not require the giving of the notice.
Example for paragraph (b)
The trustee may be unable, after reasonable attempts, to identify an address or location of the non-member spouse.
History
Reg 7A.03H(3B) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 35, by substituting "paragraphs (1)(aa), (a) and (b)" for "paragraphs (1)(a) and (b)", effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which requests have not, as at 1 May 2021, been made under Division 7A.1A within the time allowed under subregulation 7A.03F(1).
Reg 7A.03H(3B) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 23, effective 25 June 2004.
7A.03H(4)
If the trustee does not take an action under subregulation (1), the trustee must give to the non-member spouse a written notice:
(a)
confirming that the non-member spouse has an interest in the fund; and
(b)
informing the non-member spouse of the relevant cooling-off arrangements.
7A.03H(5)
The trustee must take an action under subregulation (1) or (4) within 6 months after the later of:
(a)
the operative time; and
(b)
the time when the trustee creates the non-member interest.
Note: After the new interest in the fund is confirmed, it is no longer a non-member spouse interest.
History
Reg 7A.03H(5) amended by SLI No 332 of 2005, reg 3 and Sch 1 item 16, by substituting all the words after "6 months" (not including the note) for "after the operative time", effective 21 December 2005.
History
Reg 7A.03H inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03I
CONFIRMING THAT THE NON-MEMBER SPOUSE HAS AN INTEREST IN THE FUND
7A.03I(1)
[Application]
This regulation applies:
(a)
if:
(i)
a trustee receives a request under regulation 7A.03C within the time allowed under subregulation 7A.03F(1); and
(ii)
paragraph 7A.03G(2)(b) does not apply to the request; or
(b)
if:
(i)
a trustee receives a request under regulation 7A.03C within the time allowed under subregulation 7A.03F(1); and
(ii)
the trustee has, under paragraph 7A.03G(3)(a), retained the new interest in accordance with the request.
History
Reg 7A.03I(1) substituted by SR No 153 of 2004, reg 3 and Sch 1 item 24, effective 25 June 2004. Reg 7A.03I(1) formerly read:
7A.03I(1)
This regulation applies if:
(a)
a trustee receives a request under regulation 7A.03C within the time allowed under subregulation 7A.03F(1); and
(b)
paragraph 7A.03G(2)(b) does not apply to the request.
7A.03I(2)
[Notice]
The trustee must give to the non-member spouse a written notice:
(a)
confirming that the non-member spouse has an interest in the fund; and
(b)
informing the non-member spouse of the relevant cooling-off arrangements.
Note: After the new interest in the fund is confirmed, it is no longer a non-member spouse interest.
History
Reg 7A.03I inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03J
ROLLING OVER OR TRANSFERRING THE NON-MEMBER SPOUSE'S INTEREST
7A.03J(1)
[Application]
This regulation applies if a trustee rolls over or transfers the withdrawal benefit from the non-member spouse interest:
(a)
to give effect to a request under regulation 7A.03D; or
(b)
on the trustee's initiative under subregulation 7A.03H(1).
7A.03J(2)
[Rollover]
The trustee must roll over or transfer the amount as follows:
(a)
if the rollover or transfer is to give effect to a request under regulation 7A.03D, it must be done within:
(i)
30 days after receiving the request; or
(ii)
any longer period allowed by the Regulator;
(b)
if the rollover or transfer is to be done on the trustee's initiative under paragraph 7A.03H(1)(a), it must be done within 30 days after the trustee receives the nomination from the non-member spouse under subregulation 7A.03H(2);
(c)
if the rollover or transfer is to be done on the trustee's initiative under paragraph 7A.03H(1)(b), it must be done within 30 days after the end of the 28-day period mentioned in subregulation 7A.03H(2).
History
Reg 7A.03J(2) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 10, by substituting "30 days" for "90 days" in para (a)(i), (b) and (c), effective 19 February 2013.
7A.03J(3)
[Notice of rollover, etc]
The trustee must give a notice to the non-member spouse, within 28 days after the amount is rolled over or transferred, stating:
(a)
that the benefits have been rolled over or transferred; and
(b)
if the rollover or transfer was done on the trustee's initiative under paragraph 7A.03H(1)(b) - the name and contact details of the fund to which the amount was rolled over or transferred; and
(c)
the amount that was rolled over or transferred.
History
Reg 7A.03J inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
REGULATION 7A.03K
PAYING A LUMP SUM
7A.03K(1)
[Application]
This regulation applies if a trustee pays to a non-member spouse, as a lump sum, the withdrawal benefit from the non-member spouse interest to give effect to a request under regulation 7A.03E.
7A.03K(2)
[Timing]
The trustee must pay the lump sum within:
(a)
30 days after receiving the request under regulation 7A.03E; or
(b)
any longer period allowed by the Regulator.
History
Reg 7A.03K(2) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 10, by substituting "30 days" for "90 days" in para (a), effective 19 February 2013.
7A.03K(3)
[Notice of payment]
The trustee must give to the non-member spouse, within 28 days after the lump sum is paid, a written notice stating:
(a)
that the lump sum has been paid; and
(b)
the amount that was paid.
History
Reg 7A.03K inserted by SR No 353 of 2002, reg 3 and Sch 1 item 31, effective 28 December 2002.
Division 7A.2 - Options available for certain superannuation interests
History
Div 7A.2 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.04
APPLICATION OF DIVISION 7A.2
7A.04(1)
This Division applies in relation to a superannuation interest (the
original interest
) in a regulated superannuation fund, or an approved deposit fund, if:
(a)
the original interest is subject to a payment split; and
(b)
either:
(i)
the original interest is an accumulation interest that is in the growth phase; or
(ii)
an allocated pension, market linked pension or account-based pension is being paid in respect of the original interest.
History
Reg 7A.04(1) amended by No 84 of 2013, s 3 and Sch 8 item 11, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b)(ii), effective 1 July 2007.
Reg 7A.04(1) amended by SR No 148 of 2004, reg 3 and Sch 3 item 30, by substituting "allocated pension or market linked pension" for "allocated pension" in para (b)(ii), effective 20 September 2004.
7A.04(2)
This Division does not apply to an accumulation interest:
(a)
if:
(i)
the interest is a partially vested accumulation interest; and
(ii)
the transferable benefits in relation to the accumulation interest would be greater than the withdrawal benefit in relation to the member spouse; or
(b)
if the interest is determined by reference to a traditional life insurance policy.
History
Reg 7A.04(2) amended by SLI No 127 of 2014, reg 4 and Sch 4 item 2, by substituting "traditional life insurance policy" for "policy of life insurance mentioned in regulation 5.15D" in para (b), effective 27 August 2014.
Reg 7A.04(2) substituted by SR No 153 of 2004, reg 3 and Sch 1 item 25, effective 25 June 2004. Reg 7A.04(2) formerly read:
7A.04(2)
This Division does not apply to an accumulation interest that is:
(a)
a partially vested accumulation interest if the court order, superannuation agreement or flag lifting agreement specifies a base amount that is greater than the current withdrawal benefit of the member; or
(b)
determined by reference to a policy of life insurance mentioned in regulation 5.15D.
Reg 7A.04(2) inserted by SR No 353 of 2002, reg 3 and Sch 1 item 33, effective 28 December 2002.
7A.04(3)
This Division does not apply to an original interest if the trustee has created a non-member spouse interest under regulation 7A.03B.
History
Reg 7A.04(3) inserted by SR No 353 of 2002, reg 3 and Sch 1 item 33, effective 28 December 2002.
7A.04(4)
In this regulation:
partially vested accumulation interest
has the meaning given by section 10 of the Family Law (Superannuation) Regulations 2025.
History
Definition of "partially vested accumulation interest" substituted by FRLI No F2025L00179, reg 4 and Sch 1 item 33, effective 1 April 2025. The definition formerly read:
partially vested accumulation interest
has the meaning given by regulation 9 of the Family Law (Superannuation) Regulations 2001.
History
Reg 7A.04(4) inserted by SR No 353 of 2002, reg 3 and Sch 1 item 33, effective 28 December 2002.
History
Reg 7A.04 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.05
7A.05
REQUEST FOR NEW INTEREST
The non-member spouse may request the trustee to create a new interest for the non-member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held.
History
Reg 7A.05 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.06
REQUEST FOR TRANSFER OF BENEFITS
7A.06(1)
[Non-member spouse may request]
The non-member spouse may request the trustee to roll over or transfer the transferable benefits to another regulated superannuation fund or approved deposit fund, or to an EPSSS or RSA, specified in the request, to be held for the benefit of the non-member spouse.
7A.06(2)
[Self managed super fund]
If the original interest is in a self managed superannuation fund, the non-member spouse, or the member spouse, may request the trustee to roll over or transfer the transferable benefits to another regulated superannuation fund or approved deposit fund, or to an EPSSS or RSA, specified in the request, to be held for the benefit of the non-member spouse.
History
Reg 7A.06 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.07
REQUEST FOR LUMP SUM PAYMENT
7A.07(1)
[Application]
This regulation applies:
(a)
if a non-member spouse has satisfied a relevant condition of release at the operative time for the payment split; or
(b)
if an allocated pension, market linked pension or account-based pension is being paid in respect of the original interest; or
(c)
if the non-member spouse's interest derives from an original interest that comprises only unrestricted non-preserved benefits.
History
Reg 7A.07(1) amended by No 84 of 2013, s 3 and Sch 8 item 12, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b), effective 1 July 2007.
Reg 7A.07(1) amended by SR No 148 of 2004, reg 3 and Sch 3 item 31, by substituting "allocated pension or market linked pension" for "allocated pension" in para (b), effective 20 September 2004.
Reg 7A.07(1) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 34, effective 28 December 2002. Reg 7A.07(1) formerly read:
7A.07(1)
This regulation applies if the non-member spouse has satisfied a relevant condition of release at the operative time for the payment split.
7A.07(2)
[Enablement of request]
The non-member spouse may request the trustee to pay to the non-member spouse, as a lump sum, the amount to which the non-member spouse is entitled under the payment split.
7A.07(3)
(Repealed by No 153 of 2004)
History
Reg 7A.07(3) repealed by No 153 of 2004, reg 3 and Sch 1 item 26, effective 25 June 2004. Reg 7A.07(3) formerly read:
7A.07(3)
For this regulation:
(a)
relevant condition of release
means a condition of release mentioned in item 101, 102, 103, 106, 201, 202, 203 or 206 of Schedule 1; and
(b)
a non-member spouse satisfies a condition of release if the event specified in the condition has occurred in relation to the non-member spouse; and
(c)
in the application of item 101, 103, 201 or 203 of Schedule 1 to a non-member spouse, a reference to a member in:
(i)
the definition of
permanent incapacity
in subregulation 6.01 (2); or
(ii)
the definition of
retirement
in subregulations 6.01 (2) and (7);
is taken to be a reference to the non-member spouse.
Reg 7A.07 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.08
REQUIREMENTS FOR REQUESTS
7A.08(1)
[Timing]
A request by a person under this Division must be made:
(a)
before the end of 28 days after the trustee gives a payment split notice to the person; or
(b)
if the trustee allows a longer period, before the end of the longer period allowed.
7A.08(2)
[Written]
The request must be made by written notice given to the trustee.
7A.08(3)
[Contents]
The notice must:
(a)
be signed by the person making the request; and
(b)
state the date when it is given to the trustee; and
(c)
for a request by the non-member spouse, include his or her name, date of birth and postal address; and
(d)
for a request by the member spouse, include a written nomination by the non-member spouse of the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request.
7A.08(4)
[Withdrawal]
The trustee may allow the request to be withdrawn.
History
Reg 7A.08 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.09
GIVING EFFECT TO REQUEST
7A.09(1)
This regulation applies if a trustee receives a request under this Division within the time allowed under regulation 7A.08.
7A.09(2)
The trustee must give effect to the request unless:
(a)
the trustee has received an earlier request under this Division in respect of the same interest and the earlier request has not been withdrawn; or
(b)
for a request under regulation 7A.05:
(i)
the regulated superannuation fund in which the non-member spouse interest is held has no more than 6 members; or
(ii)
the governing rules of the regulated superannuation fund or approved deposit fund in which the original interest is held do not allow a new interest to be created for the non-member spouse in the fund; or
(c)
for a request under regulation 7A.06 - the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request does not accept the rollover or transfer of benefits for the non-member spouse.
History
Reg 7A.09(2) amended by FRLI No F2021L00853, reg 4 and Sch 1 item 12, by substituting "no more than 6 members" for "fewer than 5 members" in para (b)(i), effective 1 July 2021.
Reg 7A.09(2) amended by SR No 353 of 2002, reg 3 and Sch 1 item 35, by substituting para (b), effective 28 December 2002. Para (b) formerly read:
(b)
for a request under regulation 7A.05 - the governing rules of the regulated superannuation fund or approved deposit fund in which the original interest is held do not allow a new interest to be created for the non-member spouse in the fund; or
7A.09(3)
If subparagraph (2)(b)(i) applies in relation to a request, the trustee must:
(a)
create the new interest in accordance with the request; or
(b)
roll over or transfer the transferable benefits to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(c)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount of the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.09(3) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 36, by substituting para (b) and (c) for para (b), effective 2 April 2021 and applicable in relation to requests made under Division 7A.2 on or after 1 May 2021. Para (b) formerly read:
(b)
roll over or transfer the transferable benefits to:
(i)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
an eligible rollover fund.
Reg 7A.09(3) and (3A) substituted for reg 7A.09(3) by SR No 153 of 2004, reg 3 and Sch 1 item 27, effective 25 June 2004. Reg 7A.09(3) formerly read:
7A.09(3)
If paragraph (2) (b) or (c) applies, the trustee must roll over or transfer the transferable benefits to:
(a)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(b)
an eligible rollover fund.
7A.09(3A)
If subparagraph (2)(b)(ii), or paragraph (2)(c), applies in relation to a request, the trustee must:
(a)
roll over or transfer the transferable benefits to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(b)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount of the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.09(3A) substituted by FRLI No F2021L00412, reg 4 and Sch 1 item 37, effective 2 April 2021 and applicable in relation to requests made under Division 7A.2 on or after 1 May 2021. Reg 7A.09(3A) formerly read:
7A.09(3A)
If subparagraph (2)(b)(ii), or paragraph (2)(c), applies in relation to a request, the trustee must roll over or transfer the transferable benefits to:
(a)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(b)
an eligible rollover fund.
Reg 7A.09(3) and (3A) substituted for reg 7A.09(3) by SR No 153 of 2004, reg 3 and Sch 1 item 27, effective 25 June 2004.
7A.09(4)
(Repealed by SR No 153 of 2004)
History
Reg 7A.09(4) repealed by SR No 153 of 2004, reg 3 and Sch 1 item 28, effective 25 June 2004. Reg 7A.09(4) formerly read:
7A.09(4)
If transferable benefits are rolled over or transferred to an eligible rollover fund under paragraph (3)(b), the trustee must give to the non-member spouse, within 28 days, a written notice stating:
(a)
that the benefits have been rolled over or transferred to an eligible rollover fund; and
(b)
the name and contact details of the fund; and
(c)
the amount that was rolled over or transferred; and
(d)
if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:
(i)
if the trustee had previously provided information to the non-member spouse under regulation 2.36D - the end of the last completed reporting period; or
(ii)
in any other case - the operative time.
Reg 7A.09(4) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 36, effective 28 December 2002. Reg 7A.09(4) formerly read:
7A.09(4)
If transferable benefits are rolled over or transferred to an eligible rollover fund under paragraph (3)(b), the trustee must give to the non-member spouse a written notice stating:
(a)
that the benefits have been rolled over or transferred to an eligible rollover fund; and
(b)
the name and contact details for the fund.
History
Reg 7A.09 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.10
TRUSTEE OPTIONS IF NO REQUEST RECEIVED
7A.10(1)
If the trustee does not receive a request under this Division within the time allowed under regulation 7A.08, the trustee may:
(a)
create a new interest for the non-member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held; or
(b)
subject to subregulation (2), roll over or transfer the transferable benefits to another regulated superannuation fund or approved deposit fund, or to an EPSSS or an RSA, nominated by the non-member spouse (subject to the governing rules of the other regulated superannuation fund, approved deposit fund or EPSSS or the terms and conditions of the RSA), to be held for the benefit of the non-member spouse; or
(c)
if the trustee does not, within the 28-day period specified in paragraph (2)(a), receive from the non-member spouse a written notice nominating a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the transferable benefits may be rolled over or transferred, consider whether it would be in the best interests of the non-member spouse to pay the amount of the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.10(1) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 38, by substituting "consider whether it would be in the best interests of the non-member spouse to pay the amount of the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999" for "roll over or transfer the transferable benefits to an eligible rollover fund" in para (c), effective 2 April 2021 and applicable in relation to which requests have not, as at 1 May 2021, been made under Division 7A.2 within the time allowed under subregulation 7A.08(1).
7A.10(2)
Subject to subregulation (4), before rolling over or transferring the transferable benefits to a regulated superannuation fund, approved deposit fund, EPSSS or RSA under paragraph (1)(b), the trustee must give to the non-member spouse a written notice stating that:
(a)
the non-member spouse has 28 days from the date of the notice in which to nominate, by written notice to the trustee, a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the transferable benefits may be rolled over or transferred; and
(b)
if the non-member spouse does not, within that 28-day period, nominate a regulated superannuation fund, approved deposit fund, EPSSS or RSA for that purpose, the trustee will consider whether it would be in the best interests of the non-member spouse to pay the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.10(2) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 39, by substituting "consider whether it would be in the best interests of the non-member spouse to pay the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999" for "roll over or transfer the transferable benefits to an eligible rollover fund" in para (b), effective 2 April 2021 and applicable in relation to which requests have not, as at 1 May 2021, been made under Division 7A.2 within the time allowed under subregulation 7A.08(1).
Reg 7A.10(2) amended by SR No 153 of 2004, reg 3 and Sch 1 item 29, by substituting "Subject to subregulation (4), before rolling over" for "Before rolling over", effective 25 June 2004.
7A.10(3)
(Repealed by FRLI No F2021L00412)
History
Reg 7A.10(3) repealed by FRLI No F2021L00412, reg 4 and Sch 1 item 40, effective 2 April 2021 and applicable in relation to which requests have not, as at 1 May 2021, been made under Division 7A.2 within the time allowed under subregulation 7A.08(1). Reg 7A.10(3) formerly read:
7A.10(3)
A notice given by the trustee under subregulation (2) must state the name and contact details of the eligible rollover fund to which the non-member spouse's transferable benefits may be rolled over or transferred.
7A.10(4)
If a trustee:
(a)
has made reasonable attempts to obtain sufficient information about a non-member spouse to be able to give a payment split notice; and
(b)
has been unable to obtain sufficient information about the non-member spouse;
the trustee is permitted to act under subregulation (1) as if the subregulation did not require the giving of the payment split notice or the notice under subregulation (2).
Example for paragraph (a)
The trustee may be unable, after reasonable attempts, to identify an address or location of the non-member spouse.
History
Reg 7A.10(4) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 30, effective 25 June 2004.
7A.10(5)
If a trustee:
(a)
proposes to give a non-member spouse a notice under subregulation (2); and
(b)
has made reasonable attempts to obtain sufficient information about the non-member spouse to be able to give the notice; and
(c)
has been unable to obtain sufficient information about the non-member spouse;
the trustee is not required to give the notice, and is permitted to act under paragraphs (1)(b) and (c) as if those paragraphs did not require the giving of the notice.
Example for paragraph (b)
The trustee may be unable, after reasonable attempts, to identify an address or location of the non-member spouse.
History
Reg 7A.10(5) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 30, effective 25 June 2004.
History
Reg 7A.10 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.11
CREATING A NEW INTEREST
7A.11(1)
This regulation applies if the trustee creates a new interest for the non-member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held:
(a)
to give effect to a request under regulation 7A.05; or
(b)
on the trustee's initiative under paragraph 7A.03H(1)(aa) or 7A.10(1)(a).
History
Reg 7A.11(1) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 41, by inserting "7A.03H(1)(aa) or" in para (b), effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which requests have not, as at 1 May 2021, been made under Division 7A.1A within the time allowed under subregulation 7A.03F(1).
7A.11(2)
Subject to subregulations (3) and (4), the value of the benefits that the non-member spouse has in the new interest must be:
(a)
if the payment split is a base amount payment split and an adjusted base amount applies to the non-member spouse when the new interest is created - the adjusted base amount less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(b)
if the payment split is a base amount payment split and an adjusted base amount does not apply to the non-member spouse when the new interest is created - the base amount allocated to the non-member spouse, within the meaning of section 72 of the Family Law (Superannuation) Regulations 2025, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(c)
if the payment split is a percentage payment split:
(i)
for an entitlement, in respect of an accumulation interest in the growth phase that is not a partially vested accumulation interest, to which subparagraph (ii) does not apply - the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(ii)
for an entitlement in respect of an interest in a self-managed superannuation fund - the amount in relation to the interest at the time when the new interest is created, determined by a method that a court might use if the court were acting under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(iii)
for an entitlement in respect of any other interest - the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 6 of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split.
History
Reg 7A.11(2) amended by FRLI No F2025L00179, reg 4 and Sch 1 items 34-36, by substituting "section 72 of the Family Law (Superannuation) Regulations 2025" for "regulation 45 of the Family Law (Superannuation) Regulations 2001" in para (b), "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" for "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" in para (c)(i) and "Part 6 of the Family Law (Superannuation) Regulations 2025" for "Part 5 of the Family Law (Superannuation) Regulations 2001" in para (c)(iii), effective 1 April 2025.
Reg 7A.11(2) amended by FRLI No F2021L01893, reg 4 and Sch 1 item 195, by substituting "90XT(2)(b) or 90YY(2)(b) (as the case may be)" for "90MT(2)(b)" in para (c)(ii), effective 28 September 2022.
Reg 7A.11(2) amended by SR No 148 of 2004, reg 3 and Sch 3 item 32, by substituting "in respect of an accumulation interest in the growth phase" for "in respect of an accumulation interest" in para (c)(i), effective 20 September 2004.
Reg 7A.11(2) amended by SR No 153 of 2004, reg 3 and Sch 1 items 31 to 33, by substituting "for an entitlement, in respect of an accumulation interest that is not a partially vested accumulation interest, to which subparagraph (ii) does not apply -" for "for an entitlement in respect of an accumulation interest -" and substituting "determined in the way in which a court would determine an amount in accordance with" for "determined in accordance with" in para (c)(i) and substituting "determined in the way in which a court would determine an amount in accordance with" for "determined in accordance with" in para (c)(iii), effective 25 June 2004.
Reg 7A.11(2) amended by SR No 353 of 2002, reg 3 and Sch 1 items 37 to 39, by substituting "must be:" for "must be equal to the value of:", substituting "payable by the non-member spouse" for "charged" in paras (a) and (b) and substituting para (c), effective 28 December 2002. Para (c) formerly read:
(c)
if the payment split is a percentage payment split - the value of the original interest at the time when the new interest is created multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees charged in respect of the payment split.
7A.11(3)
If the payment split is a base amount payment split, and a splittable payment becomes payable in respect of the member spouse's interest before the new interest is created, the value of the benefits that the non-member spouse has in the new interest must be the amount applying under subregulation (2) less the amount the non-member spouse is entitled to be paid in respect of the splittable payment.
History
Reg 7A.11(3) amended by SR No 353 of 2002, reg 3 and Sch 1 item 40, by inserting "the payment split is a base amount payment split, and" after "If", effective 28 December 2002.
7A.11(4)
The value of the benefits that the non-member spouse has in the new interest must not be more than the value of the withdrawal benefit in relation to the member spouse and the original interest immediately before the new interest is created.
History
Reg 7A.11(4) amended by SR No 153 of 2004, reg 3 and Sch 1 item 34, by substituting "immediately before the new interest is created." for "immediately before the payment split.", effective 25 June 2004.
7A.11(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:
(a)
the value of the benefits that the non-member spouse has in the new interest; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
History
Reg 7A.11(5) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 41, effective 28 December 2002. Reg 7A.11(5) formerly read:
7A.11(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by the value of the benefits that the non-member spouse has in the new interest.
7A.11(6)
In creating the new interest:
(a)
a proportion must be taken from the unrestricted non-preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse's interest immediately before the new interest was created.
History
Reg 7A.11(6) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 41, effective 28 December 2002. Reg 7A.11(6) formerly read:
7A.11(6)
In creating the new interest, amounts must be taken proportionately from the unrestricted non-preserved benefits, restricted non-preserved benefits and preserved benefits of the member spouse.
7A.11(7)
The benefits held in the new interest are unrestricted non-preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that they had in the member spouse's interest.
7A.11(8)
A new interest created to give effect to a request under regulation 7A.05 is taken to be created on the day when the trustee receives the request in accordance with regulation 7A.08.
7A.11(9)
A new interest created on the trustee's initiative under paragraph 7A.03H(1)(aa) or 7A.10(1)(a) is taken to be created on the twenty-ninth day after the date when the payment split notice in relation to the payment split was given by the trustee.
History
Reg 7A.11(9) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 42, by inserting "7A.03H(1)(aa) or", effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which requests have not, as at 1 May 2021, been made under Division 7A.1A within the time allowed under subregulation 7A.03F(1).
7A.11(10)
The trustee must give to the member spouse and the non-member spouse, within 28 days after the new interest is created, a written notice stating:
(a)
that the new interest has been created; and
(b)
the amount allocated to the non-member spouse in the new interest; and
(c)
if the payment split is a base amount payment split - the amount of any adjustment that has been made to the base amount since the operative time.
History
Reg 7A.11(10) amended by FRLI No F2024L01610, reg 4 and Sch 1 item 11, by substituting para (c), effective 10 December 2024. Para (c) formerly read:
(c)
if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:
(i)
if the trustee had previously provided information to the non-member spouse under regulation 2.36D - the end of the last completed reporting period; or
(ii)
in any other case - the operative time.
Reg 7A.11(10) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 42, effective 28 December 2002. Reg 7A.11(10) formerly read:
7A.11(10)
Within 28 days after the new interest is created, the trustee must notify the non-member spouse that the new interest has been created.
History
Reg 7A.11 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.12
ROLLING OVER OR TRANSFERRING TRANSFERABLE BENEFITS
7A.12(1)
This regulation applies if the trustee rolls over or transfers transferable benefits:
(a)
to give effect to a request under regulation 7A.06; or
(b)
on the trustee's initiative under paragraph 7A.10(1)(b) or (c); or
(c)
under subregulation 7A.09(3) or (3A).
History
Reg 7A.12(1) amended by SR No 153 of 2004, reg 3 and Sch 1 items 35 and 36, by substituting "or (c); or" for "or (c)." in para (b) and inserting para (c), effective 25 June 2004.
7A.12(2)
The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:
(a)
the value of:
(i)
the transferable benefits; or
(ii)
if paragraph (3A)(c) applies - the benefits that are rolled over or transferred; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
History
Reg 7A.12(2) amended by SR No 153 of 2004, reg 3 and Sch 1 item 37, by substituting para (a), effective 25 June 2004. Para (a) formerly read:
(a)
the value of the transferable benefits; and
Reg 7A.12(2), (3), (3A) and (3B) substituted for reg 7A.12(2) and (3) by SR No 353 of 2002, reg 3 and Sch 1 item 43, effective 28 December 2002. Reg 7A.12(2) formerly read:
7A.12(2)
The value of the benefits that the member spouse has in his or her interest must be reduced by the value of the transferable benefits.
7A.12(3)
If the payment split is a base amount payment split, and a splittable payment becomes payable in respect of the member spouse's interest before the trustee rolls over or transfers the transferable benefits, the amount rolled over or transferred for the non-member spouse must be the transferable benefits less the amount the non-member spouse is entitled to in respect of the splittable payment.
History
Reg 7A.12(2), (3), (3A) and (3B) substituted for reg 7A.12(2) and (3) by SR No 353 of 2002, reg 3 and Sch 1 item 43, effective 28 December 2002. Reg 7A.12(3) formerly read:
7A.12(3)
In rolling over or transferring the transferable benefits, amounts must be taken proportionately from the unrestricted non-preserved benefits, restricted non-preserved benefits and preserved benefits of the member spouse.
7A.12(3A)
In rolling over or transferring the transferable benefits:
(a)
a proportion must be taken from the unrestricted non-preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse's interest immediately before the benefits were rolled over or transferred; and
(c)
the trustee must ensure that the total amount that is rolled over or transferred does not exceed the withdrawal benefit of the member spouse immediately before that amount is rolled over or transferred.
History
Reg 7A.12(3A) amended by SR No 153 of 2004, reg 3 and Sch 1 items 38 and 39, by substituting "transferred; and" for "transferred." in para (b) and inserting para (c), effective 25 June 2004.
7A.12(3B)
The benefits held in the new interest are unrestricted non-preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that the benefits had in the member spouse's interest.
History
Reg 7A.12(2), (3), (3A) and (3B) substituted for reg 7A.12(2) and (3) by SR No 353 of 2002, reg 3 and Sch 1 item 43, effective 28 December 2002.
7A.12(4)
The trustee must roll over or transfer the transferable benefits as follows:
(a)
if the rollover or transfer is to give effect to a request under regulation 7A.06, it must be done within:
(i)
30 days after receiving the request; or
(ii)
any longer period allowed by the Regulator;
(b)
if the rollover or transfer is to be done on the trustee's initiative under paragraph 7A.10(1)(b), it must be done within 30 days after the trustee receives the nomination from the non-member spouse under subregulation 7A.10(2).
(c)
(Repealed by FRLI No F2021L00412)
History
Reg 7A.12(4) amended by FRLI No F2021L00412, reg 4 and Sch 1 items 43 and 44, by substituting "subregulation 7A.10(2)." for "subregulation 7A.10(2);" in para (b) and repealing para (c), effective 2 April 2021 and applicable in relation to which requests have not, as at 1 May 2021, been made under Division 7A.2 within the time allowed under subregulation 7A.08(1). Para (c) formerly read:
(c)
if the rollover or transfer is to be done on the trustee's initiative under paragraph 7A.10(1)(c), it must be done within 30 days after the end of the 28-day period mentioned in subregulation 7A.10(2).
Reg 7A.12(4) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 10, by substituting "30 days" for "90 days" in para (a)(i), (b) and (c), effective 19 February 2013.
7A.12(5)
The trustee must give to the member spouse and the non-member spouse, within 28 days after the transferable benefits are rolled over or transferred, a written notice stating:
(a)
that the benefits have been rolled over or transferred; and
(b)
the amount that was transferred or rolled over; and
(c)
if the payment split is a base amount payment split - the amount of any adjustment that has been made to the base amount since the operative time.
(d)
(Repealed by FRLI No F2021L00412)
History
Reg 7A.12(5) amended by FRLI No F2024L01610, reg 4 and Sch 1 item 12, by substituting para (c), effective 10 December 2024. Para (c) formerly read:
(c)
if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:
(i)
if the trustee had previously provided information to the non-member spouse under regulation 2.36D - the end of the last completed reporting period; or
(ii)
in any other case - the operative time.
Reg 7A.12(5) amended by FRLI No F2021L00412, reg 4 and Sch 1 items 45 and 46, by substituting "time." for "time; and" in para (c)(ii) and repealing para (d), effective 2 April 2021 and applicable in relation to requests made under Division 7A.2 on or after 1 May 2021. Para (d) formerly read:
(d)
if the benefits are rolled over or transferred to an eligible rollover fund - the name and contact details of the fund.
Reg 7A.12(5) amended by SR No 153 of 2004, reg 3 and Sch 1 items 40 and 41, by substituting "operative time; and" for "operative time." in para (c)(ii) and inserting para (d), effective 25 June 2004.
Reg 7A.12(5) substituted by SR No 353, reg 3 and Sch 1 item 44, effective 28 December 2002. Reg 7A.12(5) formerly read:
7A.12(5)
Within 28 days after the transferable benefits are rolled over or transferred, the trustee must:
(a)
notify the non-member spouse that the benefits have been rolled over or transferred; and
(b)
if the rollover or transfer was requested by the member spouse, notify the member spouse that the benefits have been rolled over or transferred.
History
Reg 7A.12 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.13
PAYING A LUMP SUM
7A.13(1)
This regulation applies if, to give effect to a request under regulation 7A.07, the trustee pays to the non-member spouse, as a lump sum, the amount to which the non-member spouse is entitled under the payment split.
7A.13(2)
Subject to subregulations (3) and (4), the value of the lump sum to be paid to the non-member spouse must be:
(a)
if the payment split is a base amount payment split and an adjusted base amount applies to the non-member spouse at the date of the payment - the adjusted base amount less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(b)
if the payment split is a base amount payment split and an adjusted base amount does not apply to the non-member spouse at the date of the payment - the base amount allocated to the non-member spouse, within the meaning of section 72 of the Family Law (Superannuation) Regulations 2025, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(c)
if the payment split is a percentage payment split:
(i)
for an entitlement, in respect of an accumulation interest in the growth phase that is not a partially vested accumulation interest, to which subparagraph (ii) does not apply - the amount in relation to the interest at the date of the payment, determined in the way in which a court would determine an amount in accordance with section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(ii)
for an entitlement in respect of an interest in a self-managed superannuation fund - the amount in relation to the interest at the date of the payment, determined by a method that a court might use if the court were acting under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(iii)
for an entitlement in respect of any other interest - the amount in relation to the interest at the date of the payment, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 6 of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split.
History
Reg 7A.13(2) amended by FRLI No F2025L00179, reg 4 and Sch 1 items 37-39, by substituting "section 72 of the Family Law (Superannuation) Regulations 2025" for "regulation 45 of the Family Law (Superannuation) Regulations 2001" in para (b), "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" for "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" in para (c)(i) and "Part 6 of the Family Law (Superannuation) Regulations 2025" for "Part 5 of the Family Law (Superannuation) Regulations 2001" in para (c)(iii), effective 1 April 2025.
Reg 7A.13(2) amended by FRLI No F2021L01893, reg 4 and Sch 1 item 196, by substituting "90XT(2)(b) or 90YY(2)(b) (as the case may be)" for "90MT(2)(b)" in para (c)(ii), effective 28 September 2022.
Reg 7A.13(2) amended by SR No 148 of 2004, reg 3 and Sch 3 item 33, by substituting "in respect of an accumulation interest in the growth phase" for "in respect of an accumulation interest" in para (c)(i), effective 20 September 2004.
Reg 7A.13(2) amended by SR No 153 of 2004, reg 3 and Sch 1 items 42 to 44, by substituting "for an entitlement, in respect of an accumulation interest that is not a partially vested accumulation interest, to which subparagraph (ii) does not apply -" for "for an entitlement in respect of an accumulation interest -"and substituting "determined in the way in which a court would determine an amount in accordance with" for "determined in accordance with" in para (c)(i) and substituting "determined in the way in which a court would determine an amount in accordance with" for "determined in accordance with" in para (c)(iii), effective 25 June 2004.
Reg 7A.13(2) amended by SR No 353 of 2002, reg 3 and Sch 1 items 45 to 47, by substituting "must be:" for "must be equal to the value of:", substituting "payable by the non-member spouse" for "charged" in paras (a) and (b) and substituting para (c), effective 28 December 2002. Para (c) formerly read:
(c)
if the payment split is a percentage payment split - the value of the original interest at the date of the payment multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees charged in respect of the payment split.
7A.13(3)
If the payment split is a base amount payment split, and a splittable payment becomes payable in respect of the member spouse's interest before the lump sum is paid to the non-member spouse, the value of the lump sum to be paid to the non-member spouse must be the amount applying under subregulation (2) less the amount the non-member spouse is entitled to be paid in respect of the splittable payment.
History
Reg 7A.13(3) amended by SR No 353 of 2002, reg 3 and Sch 1 item 48, by inserting "the payment split is a base amount payment split, and" after "If", effective 28 December 2002.
7A.13(4)
The value of the lump sum to be paid to the non-member spouse must not be more than the value of the withdrawal benefit in relation to the member spouse and the original interest immediately before the lump sum is paid.
History
Reg 7A.13(4) amended by SR No 153 of 2004, reg 3 and Sch 1 item 45, by substituting "immediately before the lump sum is paid." for "immediately before the payment split.", effective 25 June 2004.
7A.13(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:
(a)
the value of the lump sum paid to the non-member spouse; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
History
Reg 7A.13(5) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 49, effective 28 December 2002. Reg 7A.13(5) formerly read:
7A.13(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by the value of the lump sum paid to the non-member spouse.
7A.13(6)
In paying the lump sum to the non-member spouse:
(a)
a proportion must be taken from the unrestricted non-preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse's interest immediately before the payment was made.
History
Reg 7A.13(6) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 49, effective 28 December 2002. Reg 7A.13(6) formerly read:
7A.13(6)
In paying the lump sum to the non-member spouse, amounts must be taken proportionately from the unrestricted non-preserved benefits, restricted non-preserved benefits and preserved benefits of the member spouse.
7A.13(7)
The trustee must pay the lump sum within:
(a)
30 days after receiving the request under regulation 7A.07; or
(b)
any longer period allowed by the Regulator.
History
Reg 7A.13(7) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 10, by substituting "30 days" for "90 days" in para (a), effective 19 February 2013.
7A.13(8)
The trustee must give to the member spouse and the non-member spouse, within 28 days after the lump sum is paid, a written notice stating:
(a)
that the lump sum has been paid; and
(b)
the amount that was paid; and
(c)
if the payment split is a base amount payment split - the amount of any adjustment that has been made to the base amount since the operative time.
History
Reg 7A.13(8) amended by FRLI No F2024L01610, reg 4 and Sch 1 item 13, by substituting para (c), effective 10 December 2024. Para (c) formerly read:
(c)
if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:
(i)
if the trustee had previously provided information to the non-member spouse under regulation 2.36D - the end of the last completed reporting period; or
(ii)
in any other case - the operative time.
Reg 7A.13(8) inserted by SR No 353 of 2002, reg 3 and Sch 1 item 50, effective 28 December 2002.
History
Reg 7A.13 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
Division 7A.3 - Splittable payments - payment standards for non-member spouse entitlements
History
Div 7A.3 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.14
APPLICATION OF DIVISION 7A.3
7A.14(1)
[Application to ``original interest'']
This Division applies if:
(a)
an interest (the
original interest
) in a regulated superannuation fund or approved deposit fund is subject to a payment split; and
(b)
the non-member spouse is entitled to be paid an amount from the original interest because a splittable payment in respect of the interest has become payable; and
(c)
a new interest has not been created for the non-member spouse, or the transferable benefits of the non-member spouse have not been transferred or rolled out of the fund, as a result of a payment split.
7A.14(2)
[Certain death benefits]
However, if an amount under the Act would be a superannuation death benefit (within the meaning of subsection 995-1(1) of the 1997 Tax Act) if it were paid to the non-member spouse, a requirement in this Division:
(a)
to pay the amount; or
(b)
to roll over or transfer the amount to another regulated superannuation fund, an RSA, an approved deposit fund or an EPSSS, to be held for the benefit of the non-member spouse; or
(c)
to allocate the amount to an interest that the trustee creates for the non-member spouse in the regulated superannuation fund or approved deposit fund;
is taken to be a requirement to pay the amount to the non-member spouse in cash.
History
Reg 7A.14(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 81, by substituting "a superannuation death benefit (within the meaning of subsection 995-1(1) of the 1997 Tax Act)" for "a death benefit ETP under the Income Tax Assessment Act 1936", effective 1 July 2007.
Reg 7A.14(2) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 47, effective 25 June 2004.
Reg 7A.14 amended by SR No 353 of 2002, reg 3 and Sch 1 item 51, by substituting ``as a result of a payment split.'' for ``under Division 7A.2.'' in para (c), effective 28 December 2002.
Reg 7A.14 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
7A.15
(Repealed) REGULATION 7A.15 MEANING OF RELEVANT CONDITION OF RELEASE
(Repealed by SR No 153 of 2004)
History
Reg 7A.15 repealed by SR No 153 of 2004, reg 3 and Sch 1 item 48, effective 25 June 2004. Reg 7A.15 formerly read:
REGULATION 7A.15 MEANING OF RELEVANT CONDITION OF RELEASE
7A.15
For this Division:
(a)
relevant condition of release
means a condition of release mentioned in item 101, 102, 103, 106, 201, 202, 203 or 206 of Schedule 1; and
(b)
a non-member spouse satisfies a condition of release if the event specified in the condition has occurred in relation to the non-member spouse; and
(c)
in the application of item 101, 103, 201 or 203 of Schedule 1 to a non-member spouse, a reference to a member in:
(i)
the definition of
permanent incapacity
in subregulation 6.01 (2); or
(ii)
the definition of
retirement
in subregulations 6.01(2) and (7);
is taken to be a reference to the non-member spouse.
Reg 7A.15 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.16
PRESERVATION OF NON-MEMBER SPOUSE ENTITLEMENTS
7A.16(1)
Subject to regulation 7A.17, this regulation applies if:
(a)
the non-member spouse has not satisfied a relevant condition of release at the time of the splittable payment; and
(b)
the splittable payment does not derive from an allocated pension, market linked pension or account-based pension.
History
Reg 7A.16(1) amended by No 84 of 2013, s 3 and Sch 8 item 13, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b), effective 1 July 2007.
Reg 7A.16(1) amended by SR No 148 of 2004, reg 3 and Sch 3 item 34, by substituting "allocated pension or market linked pension." for "allocated pension." in para (b), effective 20 September 2004.
Reg 7A.16(1) amended by SR No 153 of 2004, reg 3 and Sch 1 item 49, by substituting "the non-member spouse" for "a non-member spouse" in para (a), effective 25 June 2004.
Reg 7A.16(1) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 52, effective 28 December 2002. Reg 7A.16(1) formerly read:
7A.16(1)
Subject to regulation 7A.17, this regulation applies if the non-member spouse has not satisfied a relevant condition of release at the time of the splittable payment.
7A.16(2)
The trustee of the regulated superannuation fund or approved deposit fund in which the original interest is held must:
(a)
allocate the amount to an interest that the trustee creates for the non-member spouse in the regulated superannuation fund or approved deposit fund; or
(b)
roll over or transfer the amount to another regulated superannuation fund, an RSA, an approved deposit fund or an EPSSS, to be held for the benefit of the non-member spouse.
History
Reg 7A.16(2) amended by SR No 353 of 2002, reg 3 and Sch 1 item 53, by substituting "fund, an RSA, an approved deposit fund or an EPSSS," for "fund or an RSA," in para (b), effective 28 December 2002.
7A.16(2A)
The trustee must preserve the amount mentioned in subregulation (2).
History
Reg 7A.16(2A) inserted by SR No 353 of 2002, reg 3 and Sch 1 item 54, effective 28 December 2002.
7A.16(3)
If the non-member spouse's entitlement under the payment split is to be paid as a lump sum, the trustee must allocate, roll over or transfer the lump sum within:
(a)
30 days after the splittable payment becomes payable; or
(b)
any longer period allowed by the Regulator.
History
Reg 7A.16(3) amended by SLI No 14 of 2013, reg 3 and Sch 1 item 10, by substituting "30 days" for "90 days" in para (a), effective 19 February 2013.
7A.16(4)
If the non-member spouse's entitlement derives from a pension being paid to the member spouse (other than a pension to which regulation 7A.17 applies, an allocated pension, market linked pension or account-based pension), the trustee must allocate, roll over or transfer the amounts to which the non-member spouse is entitled:
(a)
if the governing rules of the fund provide for the frequency with which pension payments are to be made to the member spouse - in accordance with those rules; or
(b)
in any other case - at least annually.
History
Reg 7A.16(4) amended by No 84 of 2013, s 3 and Sch 8 item 14, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or a market linked pension", effective 1 July 2007.
Reg 7A.16(4) amended by SR No 148 of 2004, reg 3 and Sch 3 item 35, by substituting ", an allocated pension or a market linked pension" for "or an allocated pension", effective 20 September 2004.
Reg 7A.16(4) amended by SR No 353 of 2002, reg 3 and Sch 1 item 55, by substituting "applies or an allocated pension)," for "applies),", effective 28 December 2002.
7A.16(5)
Subject to subregulation (6), the amount must not be allocated, rolled over or transferred unless the trustee of the transferor fund:
(a)
has received, from the non-member spouse, consent to the allocation, rollover or transfer; or
(b)
in the case of a rollover or transfer - believes, on reasonable grounds, that:
(i)
the trustee of the receiving regulated superannuation fund, approved deposit fund or EPSSS; or
(ii)
the receiving RSA provider;
has received from the non-member spouse consent to the rollover or transfer.
History
Reg 7A.16(5) amended by SR No 153 of 2004, reg 3 and Sch 1 item 50, by substituting para (b), effective 25 June 2004. Para (b) formerly read:
(b)
believes, on reasonable grounds, that the trustee of the receiving regulated superannuation fund, RSA, approved deposit fund or EPSSS has received from the non-member spouse consent to the allocation, rollover or transfer.
Reg 7A.16(5) amended by SR No 353 of 2002, reg 3 and Sch 1 item 56, by substituting "fund, RSA, approved deposit fund or EPSSS" for "fund or RSA" in para (b), effective 28 December 2002.
7A.16(6)
If the trustee of the transferor fund believes, on reasonable grounds and after making reasonable inquiries, that the non-member spouse has not given a consent mentioned in subregulation (5), the trustee must:
(a)
consider whether it would be in the best interests of the non-member spouse to pay the amount to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(b)
if the trustee does not pay the amount to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999 - allocate the amount to an interest that the trustee creates for the non-member spouse in the regulated superannuation fund or approved deposit fund.
History
Reg 7A.16(6) substituted by FRLI No F2021L00412, reg 4 and Sch 1 item 47, effective 2 April 2021 and applicable in relation to non-member spouse interests in relation to which a belief is formed in accordance with subregulation 7A.16(6) on or after 1 May 2021. Reg 7A.16(6) formerly read:
7A.16(6)
If the trustee of the transferor fund believes, on reasonable grounds and after making reasonable inquiries, that the non-member spouse has not given a consent mentioned in subregulation (5):
(a)
the trustee must:
(i)
allocate the amount to an interest that the trustee creates for the non-member spouse in the regulated superannuation fund or approved deposit fund; or
(ii)
apply, under subsection 243(2) of the Act, for the issue to the non-member spouse of an interest in an eligible rollover fund that is a regulated superannuation fund; and
(b)
if subparagraph (a)(ii) applies - the amount must be rolled over or transferred to that fund.
Reg 7A.16(6) substituted by SR No 153 of 2004, reg 3 and Sch 1 item 51, effective 25 June 2004. Reg 7A.16(6) formerly read:
7A.16(6)
If the trustee of the transferor fund believes, on reasonable grounds and after making reasonable inquiries, that the non-member spouse has not given a consent mentioned in subregulation (5):
(a)
the trustee must apply, under subsection 243(2) of the Act, for the issue to the non-member spouse of an interest in an eligible rollover fund that is a regulated superannuation fund; and
(b)
the amount must be rolled over or transferred to that fund.
7A.16(7)
The consent of the member spouse to a rollover or transfer under this regulation is not required.
7A.16(8)
In subregulation (5):
consent
means:
(a)
written consent; or
(b)
any other form of consent determined by the Regulator as sufficient in the circumstances.
History
Reg 7A.16 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.17
PAYMENT OF NON-MEMBER SPOUSE ENTITLEMENTS FROM PENSION
7A.17(1)
This regulation applies if:
(a)
the non-member spouse has not satisfied a relevant condition of release at the time of the splittable payment; and
(b)
the member spouse was being paid a pension (other than an allocated pension, market linked pension or account-based pension) in respect of the original interest on or before the operative time for the payment split.
History
Reg 7A.17(1) amended by No 84 of 2013, s 3 and Sch 8 item 15, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b), effective 1 July 2007.
Reg 7A.17(1) amended by SR No 148 of 2004, reg 3 and Sch 3 item 36, by substituting "allocated pension or market linked pension" for "allocated pension" in para (b), effective 20 September 2004.
Reg 7A.17(1) amended by SR No 353 of 2002, reg 3 and Sch 1 item 57, by substituting "pension (other than an allocated pension)" for "pension" in para (b), effective 28 December 2002.
7A.17(2)
When the splittable payment becomes payable, the trustee of the regulated superannuation fund or approved deposit fund in which the original interest is held must pay the amount to which the non-member spouse is entitled to the non-member spouse.
7A.17(3)
However, if the amount to be paid to the non-member spouse is a lump sum payable as the result of the commutation of a pension, the non-member spouse may request the trustee:
(a)
to allocate the amount to an interest that the trustee creates for the non-member spouse in the regulated superannuation fund or approved deposit fund; or
(b)
to roll over or transfer the amount to another regulated superannuation fund, an RSA, an approved deposit fund or an EPSSS, to be held for the benefit of the non-member spouse.
History
Reg 7A.17(3) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 52, effective 25 June 2004.
7A.17(4)
The trustee must give effect to the request unless:
(a)
for a request under paragraph (3)(a):
(i)
the regulated superannuation fund in which the non-member spouse interest is held has no more than 6 members; or
(ii)
the governing rules of the regulated superannuation fund or approved deposit fund in which the original interest is held do not allow a new interest to be created for the non-member spouse in the fund; or
(b)
for a request under paragraph (3)(b) - the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request does not accept the rollover or transfer of benefits for the non-member spouse.
History
Reg 7A.17(4) amended by FRLI No F2021L00853, reg 4 and Sch 1 item 13, by substituting "no more than 6 members" for "fewer than 5 members" in para (a)(i), effective 1 July 2021.
Reg 7A.17(4) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 52, effective 25 June 2004.
7A.17(5)
If subparagraph (4)(a)(i) applies:
(a)
the trustee may give effect to the request; or
(b)
if the trustee does not give effect to the request and the non-member spouse asks the trustee to pay the amount to which the non-member spouse is entitled to the non-member spouse - the trustee must pay the amount to the non-member spouse; or
(c)
if the trustee does not give effect to the request and paragraph (b) of this subregulation does not apply - the trustee must:
(i)
roll over or transfer the amount to which the non-member spouse is entitled to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount to which the non-member spouse is entitled to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.17(5) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 48, by substituting para (b) and (c) for para (b), effective 2 April 2021 and applicable in relation to requests made under subregulation 7A.17(3) on or after 1 May 2021. Para (b) formerly read:
(b)
if the trustee does not give effect to the request, the trustee must:
(i)
if the non-member spouse asks the trustee to pay the amount to which the non-member spouse is entitled to the non-member spouse - pay the amount; or
(ii)
in any other case - roll over or transfer the amount to which the non-member spouse is entitled to:
(A)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(B)
an eligible rollover fund.
Reg 7A.17(5) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 52, effective 25 June 2004.
7A.17(6)
If subparagraph (4)(a)(ii) or paragraph (4)(b) applies, the trustee must:
(a)
if the non-member spouse asks the trustee to pay the amount to which the non-member spouse is entitled to the non-member spouse - pay the amount; or
(b)
in any other case:
(i)
roll over or transfer the amount to which the non-member spouse is entitled to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount to which the non-member spouse is entitled to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.17(6) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 49, by substituting para (b), effective 2 April 2021 and applicable in relation to requests made under subregulation 7A.17(3) on or after 1 May 2021. Para (b) formerly read:
(b)
in any other case - roll over or transfer the amount to which the non-member spouse is entitled to:
(i)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
an eligible rollover fund.
Reg 7A.17(6) inserted by SR No 153 of 2004, reg 3 and Sch 1 item 52, effective 25 June 2004.
History
Reg 7A.17 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
REGULATION 7A.18
CASHING OF NON-MEMBER SPOUSE ENTITLEMENTS
7A.18(1)
This regulation applies if:
(a)
the non-member spouse has satisfied a relevant condition of release at the time of the splittable payment; or
(b)
the splittable payment derives from an allocated pension, market linked pension or account-based pension.
History
Reg 7A.18(1) amended by No 84 of 2013, s 3 and Sch 8 item 16, by substituting "allocated pension, market linked pension or account-based pension" for "allocated pension or market linked pension" in para (b), effective 1 July 2007.
Reg 7A.18(1) amended by SR No 148 of 2004, reg 3 and Sch 3 item 37, by substituting "allocated pension or market linked pension." for "allocated pension." in para (b), effective 20 September 2004.
Reg 7A.18(1) amended by SR No 153 of 2004, reg 3 and Sch 1 item 53, by substituting "the non-member spouse" for "a non-member spouse" in para (a), effective 25 June 2004.
Reg 7A.18(1) substituted by SR No 353 of 2002, reg 3 and Sch 1 item 58, effective 28 December 2002. Reg 7A.18(1) formerly read:
7A.18(1)
This regulation applies if the non-member spouse has satisfied a relevant condition of release at the time of the splittable payment.
7A.18(2)
When the splittable payment becomes payable, the trustee must:
(a)
pay the amount to which the non-member spouse is entitled; or
(b)
if the splittable payment is not a pension payment, and the non-member spouse asks the trustee to allocate the amount to which the non-member spouse is entitled to an interest the trustee is to create for the non-member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held - give effect to the request unless:
(i)
the regulated superannuation fund in which the non-member spouse interest is held has no more than 6 members; or
(ii)
the governing rules of the regulated superannuation fund or approved deposit fund in which the original interest is held do not allow a new interest to be created for the non-member spouse in the fund; or
(c)
if the splittable payment is not a pension payment, and the non-member spouse asks the trustee to roll over or transfer the amount to which the non-member spouse is entitled to another regulated superannuation fund, an RSA, an approved deposit fund or an EPSSS, nominated by the non-member spouse, to be held for the benefit of the non-member spouse - give effect to the request unless the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request does not accept the rollover or transfer of benefits for the non-member spouse.
History
Reg 7A.18(2) amended by FRLI No F2021L00853, reg 4 and Sch 1 item 14, by substituting "no more than 6 members" for "fewer than 5 members" in para (b)(i), effective 1 July 2021.
Reg 7A.18(2), (3) and (4) substituted for reg 7A.18(2) and (3) by No 153 of 2004, reg 3 and Sch 1 item 54, effective 25 June 2004. Reg 7A.18(2) formerly read:
7A.18(2)
When the splittable payment becomes payable, the trustee of the fund must:
(a)
pay the amount to which the non-member spouse is entitled to the non-member spouse; or
(b)
if the amount is not a pension, and the non-member spouse so requests:
(i)
allocate the amount to an interest the trustee creates for the non-member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held; or
(ii)
roll over or transfer the amount to another regulated superannuation fund, an RSA, an approved deposit fund or an EPSSS, nominated by the non-member spouse, to be held for the benefit of the non-member spouse.
Reg 7A.18(2) amended by SR No 353 of 2002, reg 3 and Sch 1 item 59, by substituting "fund, an RSA, an approved deposit fund or an EPSSS," for "fund or an RSA," in para (b)(ii), effective 28 December 2002.
7A.18(3)
If subparagraph (2)(b)(i) applies:
(a)
the trustee may give effect to the request; or
(b)
if the trustee does not give effect to the request and the non-member spouse asks the trustee to pay the amount to which the non-member spouse is entitled to the non-member spouse - the trustee must pay the amount to the non-member spouse; or
(c)
if the trustee does not give effect to the request and paragraph (b) of this subregulation does not apply - the trustee must:
(i)
roll over or transfer the amount to which the non-member spouse is entitled to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount to which the non-member spouse is entitled to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.18(3) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 50, by substituting para (b) and (c) for para (b), effective 2 April 2021 and applicable in relation to requests made under subregulation 7A.17(3) on or after 1 May 2021. Para (b) formerly read:
(b)
if the trustee does not give effect to the request, the trustee must:
(i)
if the non-member spouse asks the trustee to pay the amount to which the non-member spouse is entitled to the non-member spouse - pay the amount to which the non-member spouse is entitled; or
(ii)
in any other case - roll over or transfer the amount to which the non-member spouse is entitled to:
(A)
another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(B)
an eligible rollover fund.
Reg 7A.18(2), (3) and (4) substituted for reg 7A.18(2) and (3) by No 153 of 2004, reg 3 and Sch 1 item 54, effective 25 June 2004. Reg 7A.18(3) formerly read:
7A.18(3)
The trustee must comply with subregulation (2) within 90 days after the splittable payment becomes payable.
Reg 7A.18(3) inserted by SR No 353 of 2002, reg 3 and Sch 1 item 60, effective 28 December 2002.
7A.18(4)
If subparagraph (2)(b)(ii) or paragraph (2)(c) applies, the trustee must:
(a)
if the non-member spouse asks the trustee to pay the amount to which the non-member spouse is entitled to the non-member spouse - pay the amount to which the non-member spouse is entitled; or
(b)
in any other case:
(i)
roll over or transfer the amount to which the non-member spouse is entitled to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
if there has been no such nomination by the non-member spouse - consider whether it would be in the best interests of the non-member spouse to pay the amount to which the non-member spouse is entitled to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
Reg 7A.18(4) amended by FRLI No F2021L00412, reg 4 and Sch 1 item 51, by substituting para (b), effective 2 April 2021 and applicable in relation to requests made under subregulation 7A.17(3) on or after 1 May 2021. Para (b) formerly read:
(b)
in any other case - roll over or transfer the amount to which the non-member spouse is entitled to:
(i)another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non-member spouse; or
(ii)
an eligible rollover fund.
Reg 7A.18(2), (3) and (4) substituted for reg 7A.18(2) and (3) by No 153 of 2004, reg 3 and Sch 1 item 54, effective 25 June 2004.
History
Reg 7A.18 inserted by SR No 353 of 2001, reg 3 and Sch 1 item 43, effective 28 December 2002.
Division 7A.4 - Superannuation interest split under the Family Law (Superannuation) Regulations 2025
History
Div 7A.4 heading substituted by FRLI No F2025L00179, reg 4 and Sch 1 item 40, effective 1 April 2025. The heading formerly read:
Division 7A.4 - Superannuation interest split under the Family Law (Superannuation) Regulations 2001
Div 7A.4 inserted by SR No 353 of 2002, reg 3 and Sch 1 item 61, effective 28 December 2002.
REGULATION 7A.19
7A.19
APPLICATION
This Division applies if a trustee of a superannuation fund:
(a)
creates a new interest in the fund for a non-member spouse to satisfy Subdivision B of Division 3 of Part 3 of the Family Law (Superannuation) Regulations 2025; or
(b)
transfers or rolls over to another superannuation fund or RSA an amount to be held for the benefit of a non-member spouse to satisfy that Subdivision; or
(c)
pays an amount to a non-member spouse to satisfy that Subdivision.
History
Reg 7A.19 substituted by FRLI No F2025L00179, reg 4 and Sch 1 item 41, effective 1 April 2025. Reg 7A.19 formerly read:
REGULATION 7A.19 APPLICATION
7A.19
This Division applies if a trustee of a superannuation fund:
(a)
creates a new interest in the fund for a non-member spouse to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001; or
(b)
transfers or rolls over to another superannuation fund or RSA an amount, to be held for the benefit of a non-member spouse to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001; or
(c)
pays an amount to a non-member spouse to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001.
Reg 7A.19 inserted by SR No 353 of 2002, reg 3 and Sch 1 item 61, effective 28 December 2002.
REGULATION 7A.20
CREATING A NEW INTEREST
7A.20(1)
[Application]
This regulation applies if the trustee creates a new interest in the fund for the non-member spouse.
7A.20(2)
[Proportions preserved]
In creating the new interest:
(a)
a proportion must be taken from the unrestricted non-preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse's interest immediately before the interest was created.
7A.20(3)
[Character of benefits preserved]
The benefits held in the new interest are unrestricted non-preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that they had in the member spouse's interest.
History
Reg 7A.20 inserted by SR No 353 of 2002, reg 3 and Sch 1 item 61, effective 28 December 2002.
REGULATION 7A.21
ROLLING OVER OR TRANSFERRING BENEFITS
7A.21(1)
[Application]
This regulation applies if the trustee rolls over or transfers to another superannuation fund or RSA an amount to be held for the benefit of the non-member spouse.
7A.21(2)
[Proportions preserved]
In rolling over or transferring the transferable benefits:
(a)
a proportion must be taken from the unrestricted non-preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse's interest immediately before the amount was rolled over or transferred.
7A.21(3)
[Character of benefits preserved]
The benefits held in the new interest are unrestricted non-preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that the benefits had in the member spouse's interest.
History
Reg 7A.21 inserted by SR No 353 of 2002, reg 3 and Sch 1 item 61, effective 28 December 2002.
REGULATION 7A.22
PAYING AN AMOUNT
7A.22(1)
[Application]
This regulation applies if the trustee pays an amount to the non-member spouse.
7A.22(2)
[Proportions preserved]
In paying the amount to the non-member spouse:
(a)
a proportion must be taken from the unrestricted non-preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse's interest immediately before the amount was paid.
History
Reg 7A.22 inserted by SR No 353 of 2002, reg 3 and Sch 1 item 61, effective 28 December 2002.
PART 8 - FINANCIAL REPORTING
REGULATION 8.01
ACCOUNTS - STATEMENT OF FINANCIAL POSITION AND FINANCIAL STATEMENT
8.01(1)
[Cases where statements not required]
For the purposes of paragraphs 35B(1)(a) and (b) of the Act (preparation of a statement of financial position and an operating statement), this regulation specifies cases where those paragraphs do not apply.
History
Reg 8.01(1) amended by SLI No 343 of 2007, reg 3 and Sch 1 item 7, by substituting "paragraphs 35B(1)(a) and (b)" for "paragraphs 112(1)(a) and (b)", effective 24 September 2007.
8.01(2)
Defined benefit funds and accumulation funds that prepare certain statements.
Those paragraphs do not apply in the case of:
(a)
a defined benefit fund in respect of a year of income of the fund; or
(b)
an accumulation fund in respect of the 1994-1995 year of income of the fund;
if the trustee of the fund prepares:
(c)
a statement of net assets of the entity; and
(d)
a statement of changes in net assets of the entity;
in respect of that year of income.
8.01(3)
Superannuation funds where benefits are determined by reference to a life assurance policy.
Those paragraphs do not apply in the case of a regulated superannuation fund in respect of a year of income of the fund if, at the end of the year, the fund is a fund from which the benefits paid to each individual member of the fund:
(a)
are wholly determined by reference to policies of life assurance; or
(b)
if paragraph (a) does not apply only because shares in the life insurance company issuing the policies were acquired because the company was demutualised:
(i)
would otherwise be wholly determined by reference to policies of life assurance; and
(ii)
the shares have been held for no longer than 18 months from the date of acquisition.
History
Reg 8.01(3) amended by SR No 108 of 1998.
8.01A
(Repealed) REGULATION 8.01A STATEMENT OF CASH FLOWS
(Repealed by SLI No 343 of 2007)
History
Reg 8.01A repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 8, effective 24 September 2007. Reg 8.01A formerly read:
REGULATION 8.01A STATEMENT OF CASH FLOWS
8.01A
For paragraph 112(1)(ba) of the Act (which is about preparation of a statement of cash flows), that paragraph does not apply to a self managed superannuation fund.
Reg 8.01A substituted by SR No 170 of 2003, reg 3 and Sch 1 item 1, effective 2 July 2003. Reg 8.01A formerly read:
REGULATION 8.01A STATEMENT OF CASH FLOWS
8.01A
For the purposes of paragraph 112(1)(ba) of the Act (preparation of a statement of cash flows), subsection 112(1) of the Act does not apply to:
(a)
a superannuation entity of the kind referred to in paragraph 8.01(2)(a) in the circumstances referred to in subregulation 8.01(2); or
(b)
a superannuation entity of the kind referred to in subregulation 8.01(3) in the circumstances referred to in that subregulation; or
(c)
a self managed superannuation fund.
Reg 8.01A amended by SR No 239 of 1999 and inserted by SR No 44 of 1996.
REGULATION 8.02
ACCOUNTS AND STATEMENTS THAT MUST BE PREPARED
8.02(1)
[Purpose of regulation]
This regulation is made for the purposes of paragraph 35B(1)(c) of the Act.
History
Reg 8.02(1) amended by SLI No 343 of 2007, reg 3 and Sch 1 item 9, by substituting "paragraph 35B(1)(c)" for "paragraph 112(1)(c)", effective 24 September 2007.
8.02(2)
[Where certain statements not required]
Where, because of subregulation 8.01(3), paragraphs 35B(1)(a) and (b) of the Act do not apply in respect of a regulated superannuation fund in respect of a year of income, the accounts and statements mentioned in subregulation (3) are specified in respect of the fund in respect of that year of income.
History
Reg 8.02(2) amended by SLI No 343 of 2007, reg 3 and Sch 1 item 10, by substituting "paragraphs 35B(1)(a) and (b)" for "paragraphs 112(1)(a) and (b)", effective 24 September 2007.
8.02(3)
[Specified accounts and statements]
Those accounts and statements are:
(a)
a statement that policies of the kinds mentioned in subregulation 8.01(3) are in place at the end of the year of income; and
(b)
a statement as to whether those policies have been fully maintained as directed by the relevant insurers; and
(c)
a statement of the identities of those insurers; and
(d)
the amounts contributed by employers and members in respect of the year of income; and
(e)
where not all of those amounts have been paid as premiums on the policies - the amount of premiums paid on the policies in respect of the year of income; and
(f)
the expenses incurred by the fund in respect of the year of income, other than amounts covered by premiums.
REGULATION 8.02A
8.02A
PERIOD WITHIN WHICH AN AUDITOR MUST BE APPOINTED
For subsection 35C(1) of the Act, the prescribed period is not later than 45 days before the day by which section 35D of the Act requires a return to be lodged for the fund.
Note: See regulation 8.03 for the period within which a report mentioned in subsection 35C(6) of the Act must be provided.
History
Reg 8.02A substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 10, effective 1 July 2013. Reg 8.02A formerly read:
SECTION 8.02A
REGULATION 8.02A PERIOD WITHIN WHICH AN AUDITOR MUST BE APPOINTED (ACT S 35C)
8.02A
For subsection 35C(1) of the Act, the following periods are prescribed:
(a)
for a registrable superannuation entity - as soon as practicable, but in any event, no later than the last day of each year of income;
(b)
for a self managed superannuation fund - as soon as practicable but, in any event, no later than 30 days before the date by which the auditor must give a report mentioned in subsection 35C(6) of the Act to the trustees of the fund.
Note: See regulation 8.03 for the period within which a report mentioned in subsection 35C(6) of the Act must be provided.
History
Reg 8.02A substituted by SLI No 134 of 2008, reg 3 and Sch 1 item 1, effective 4 October 2007. However, for the period starting on 4 October 2007 and ending immediately before 25 June 2008, the amendment does not apply to the extent to which:
(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at 25 June 2008 would be affected so as to disadvantage that person; or
(b) liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before 25 June 2008.
Reg 8.02A formerly read:
REGULATION 8.02A PERIOD WITHIN WHICH AN AUDITOR MUST BE APPOINTED (ACT S 35C)
8.02A
For subsection 35C(1) of the Act, the following periods are prescribed:
(a)
for a registrable superannuation entity - as soon as practicable, but in any event, no later than the last day of each year of income;
(b)
for a self managed superannuation fund - as soon as practicable but, in any event, no later than 30 days before the date by which the auditor must give a report mentioned in subsection 35C(6) of the Act to the trustees of the fund.
Note: See regulation 8.03 for the period within which a report mentioned in subsection 35C(6) of the Act must be provided.
Reg 8.02A inserted by SLI No 343 of 2007, reg 3 and Sch 1 item 11, effective 24 September 2007.
REGULATION 8.02B
8.02B
ASSET MUST BE VALUED AT MARKET VALUE
For subsection 35B(2) of the Act, for the year of income 2012-13 and any later year of income, when preparing accounts and statements required by subsection 35B(1) of the Act, an asset must be valued at its market value.
Note:
Market value
is defined in subsection 10(1) of the Act.
History
Reg 8.02B inserted by SLI No 183 of 2012, reg 3 and Sch 1 item 5, effective 7 August 2012.
REGULATION 8.03
8.03
PERIOD WITHIN WHICH AUDIT REPORT MUST BE GIVEN
For subsection 35C(6) of the Act, the period within which a report mentioned in that subsection must be given is 28 days after the trustee of the fund has provided all documents relevant to the preparation of the report to the auditor.
History
Reg 8.03 substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 11, effective 1 July 2013. Reg 8.03 formerly read:
REGULATION 8.03 PERIOD WITHIN WHICH AUDIT REPORT MUST BE GIVEN
8.03
For the purposes of subsection 35C(6) of the Act, the period within which a report mentioned in that subsection must be given after the year of income to which it relates is:
(a)
if the report is in respect of a self managed superannuation fund - the period ending on the day before the day by which section 35D of the Act requires a return to be lodged in respect of a self managed superannuation fund; or
(b)
if the report is for a public offerentity - 4 months; or
(c)
if the report is for any other superannuation entity:
(i)
for a year of income that ends before 30 June 2000 - 6 months; and
(ii)
for a year of income that ends on or after 30 June 2000 - 4 months.
History
Reg 8.03 amended by SLI No 134 of 2008, reg 3 and Sch 1 item 2, by substituting "section 35D" for "section 36A" in para (a), effective 4 October 2007.
Reg 8.03 amended by SLI No 343 of 2007, reg 3 and Sch 1 item 12, by substituting "subsection 35C(6)" for "subsection 113(4)", effective 24 September 2007.
Reg 8.03 amended by SR No 200 of 2002, reg 4 and Sch 2 item 12, by substituting "- the period ending on the day before the day by which seciton 36A of the Act requires a return to be lodged in respect of a self managed superannuation fund; or" for "- 9 months; or" in para (a), effective 29 August 2002.
Reg 8.03 amended by SR No 37 of 2001, reg 3 Sch 1 item 2, by substituting "113(4)" for "113(1)", effective 1 March 2001.
Reg 8.03 amended by SR No 239 of 1999 and SR No 31 of 1999; substituted by SR No 430 of 1995.
8.04
(Repealed) REGULATION 8.04 PERIOD WITHIN WHICH AUDIT REPORT IS GIVEN TO THE APRA (ACT S 36)
(Repealed by SLI No 155 of 2013)
History
Reg 8.04 repealed by SLI No 155 of 2013, reg 4 and Sch 2 item 12, effective 1 July 2013. Reg 8.04 formerly read:
REGULATION 8.04 PERIOD WITHIN WHICH AUDIT REPORT IS GIVEN TO THE APRA (ACT S 36)
8.04
For subsection 36(1) of the Act, the prescribed period is as soon as practicable but, in any event, no later than 4 months after the year of income to which that report relates.
History
Reg 8.04 inserted by SLI No 343 of 2007, reg 3 and Sch 1 item 13 (amended by SLI No 133 of 2008), applicable 4 October 2007.
PART 9 - FINANCIAL MANAGEMENT OF FUNDS
Division 9.1 - Introductory
REGULATION 9.01
9.01
INTERPRETATION
In this Part:
defined benefit sub-fund
(Repealed by MD No 1 of 2013)
[
CCH Note: MODIFICATION DECLARATION No 1 of 2013
(registered 28 June 2013, effective 1 July 2013) revoked
MODIFICATION DECLARATION No 23
(No GN 3 of 20 January 1999, effective 12 January 1999). Modification Declaration No23 provided that certain Superannuation Industry (Supervision) Regulations are to have effect, in relation to trustees and members of superannuation entities (other than public sector superannuation schemes), as if they were modified by inserting the following definition:
'defined benefit sub-fund'
means a segment of a regulated superannuation fund (other than a public sector superannuation scheme) that has the following characteristics:
(a)
the segment has at least 1 defined benefit member who is being paid a defined benefit pension from the fund; and
(b)
the segment has separately identifiable assets and separately identifiable beneficiaries; and
(c)
each beneficial interest in the segment is an interest only in the assets of the segment and not in any other assets of the regulated superannuation fund; and
(d)
there is no transfer of assets, benefits or money between the segment and any other part of the regulated superannuation fund without a transfer of a corresponding beneficial interest; and
(e)
the insurance and administration costs of the segment are attributable only to that segment.
Note:
Paragraph (c) of this definition does not prevent a beneficiary having more than one beneficial interest in one segment or more than one beneficial interest in one regulated superannuation fund.
This modification applies in relation to the effect of reg 2.29, 5.08, 7.03, 9.08, 9.09, 9.17, 9.23, 9.24, 9.25, 9.29 and 9.30, and, to the extent that they were made for the purposes of Pt 3 of the Superannuation Industry (Supervision) Act 1993, to the effect of reg 1.03, 5.01, 5.04, 7.05, 9.01, 9.05, 9.06, 9.07, 9.10, 9.11, 9.12, 9.13, 9.14, 9.16, 9.18, 9.19, 9.20, 9.21, 9.22, 9.26, 9.27, 9.28 and 9.31.]
funding and solvency certificate
means a certificate required under regulation 9.09.
Division 9.2 - Financial position of funds
REGULATION 9.02
9.02
APPLICATION
This Division applies only to superannuation entities other than:
(a)
funds that are part of one of the following schemes:
(i)
the scheme established by the Superannuation Act 1976;
(ii)
the scheme established under the provisions of the Superannuation Act 1990;
(iii)
the Military Superannuation and Benefits Scheme; and
(b)
funds that are part of an exempt public sector superannuation scheme.
REGULATION 9.02A
9.02A
INTERPRETATION
A reference in this Division to:
(a)
benefits vested in a member of a fund; or
(b)
aggregate benefit accounts of a member of a fund; or
(c)
benefits accrued to a member of a fund; or
(d)
obligations of a fund in respect of a member;
includes any amounts that would be payable to the member's spouse or former spouse under a payment split.
History
Reg 9.02A inserted by SR No 353 of 2001, reg 3 and Sch 1 item 44, effective 28 December 2002.
REGULATION 9.03
WHETHER THE FINANCIAL POSITION OF A DEFINED BENEFIT FUND MAY BE ABOUT TO BECOME UNSATISFACTORY - MATTERS TO CONSIDER
9.03(1)
For the purposes of subsection 130(6) or 130AA(11A) of the Act or subregulation 9.31(3) of these Regulations, in forming an opinion whether the financial position of a defined benefit fund may be about to become unsatisfactory, a person must consider whether, at the end of the 3-year period immediately following the date at which the person's calculations are done, the value of the assets of the fund is likely (based on the expectations referred to in subregulation (2)) to be inadequate to meet the value of such of the liabilities of the fund as relate to the benefits vested in the members of the fund.
History
Reg 9.03(1) amended by FRLI No F2024L01610, reg 4 and Sch 1 item 15, by substituting "For the purposes of subsection 130(6) or 130AA(11A) of the Act or subregulation 9.31(3) of these Regulations, in forming an opinion" for "In forming an opinion for the purposes of paragraph 130(1)(a) of the Act or subregulation 9.31(3)", effective 10 December 2024.
9.03(2)
For the purposes of subregulation (1), the likelihood of the value of assets being inadequate must be based;
(a)
if the person considering the matter is a superannuation actuary - on the actuary's reasonable expectations; and
(b)
if the person considering the matter is a superannuation auditor or lead auditor - on the reasonable expectation of a superannuation actuary on whose advice the auditor has relied in relation to the matter.
History
Reg 9.03(2) amended by FRLI No F2024L01610, reg 4 and Sch 1 item 16, by inserting "or lead auditor" in para (b), effective 10 December 2024.
Reg 9.03(2) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" in paras (a) and (b) and by substituting "a superannuation auditor" for "an auditor" in para (b), effective 1 July 2013.
9.03(3)
Nothing in subregulations (1) and (2) is to be taken to affect the meaning of paragraph 130(1)(a) or 130AA(1)(a), (2)(a) or (4)(b) of the Act.
History
Reg 9.03(3) amended by FRLI No F2024L01610, reg 4 and Sch 1 item 17, by inserting "or 130AA(1)(a), (2)(a) or (4)(b)", effective 10 December 2024.
9.03(4)
(Repealed by FRLI No F2024L01610)
History
Reg 9.03(4) repealed by FRLI No F2024L01610, reg 4 and Sch 1 item 18, effective 10 December 2024. Reg 9.03(4) formerly read:
9.03(4)
For the purposes of paragraph 130(1)(b) of the Act, if a superannuation actuary in the course of performing a function for an entity under the Act or these regulations obtains sufficient information to enable the actuary to assess the financial position of the entity, the actuary is taken to have performed an actuarial function under the Act or these regulations in relation to the entity.
Reg 9.03(4) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
9.03(5)
(Repealed by FRLI No F2024L01610)
History
Reg 9.03(5) repealed by FRLI No F2024L01610, reg 4 and Sch 1 item 18, effective 10 December 2024. Reg 9.03(5) formerly read:
9.03(5)
For the purposes of paragraph 130(1)(b) of the Act, if a superannuation auditor in the course of performing a function for an entity under the Act or these regulations obtains sufficient information to enable the superannuation auditor to assess the financial position of the entity, the superannuation auditor is taken to have performed an audit function under the Act or these regulations in relation to the entity.
Reg 9.03(5) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation auditor" for "an auditor" and by substituting "the superannuation auditor" for "the auditor", effective 1 July 2013.
REGULATION 9.04
9.04
WHEN THE FINANCIAL POSITION OF AN ENTITY IS UNSATISFACTORY
For the purposes of subsections 130(7) and 130AA(12) of the Act and subregulation 9.31(3), the financial position of an entity is treated as unsatisfactory if, in the opinion of a person performing an actuarial or audit function in relation to the entity:
(a)
in the case of an entity that is a defined benefit fund - the value of the assets of the fund is inadequate to cover the value of the liabilities of the fund in respect of benefits vested in the members of the fund; and
(b)
in the case of an entity that is an accumulation fund - either:
(i)
the assets of the fund are inadequate to cover the aggregate benefit accounts of members of the fund; or
(ii)
the value of the assets of the fund is inadequate to cover the value of the liabilities of the fund in respect of benefits accrued to members of the fund; and
(c)
in the case of an entity that is an approved deposit fund - the assets of the fund are inadequate to cover the obligations of the fund in respect of members of the fund; and
(d)
in the case of an entity that is a PST - the assets of the trust are inadequate to cover the obligations of the trust in respect of holders of units in the trust.
History
Reg 9.04 amended by FRLI No F2023L00990, reg 4 and Sch 1 item 40, by substituting "subsections 130(7) and 130AA(12)" for "subsection 130(7)", effective 8 July 2023.
Division 9.2A - Size of defined benefit funds
History
Div 9.2A inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04A
APPLICATION
9.04A(1)
[Applicable funds]
This Division applies to:
(a)
a defined benefit fund established after the commencement of this Division; and
(b)
a fund that is converted to a defined benefit fund after the commencement of this Division; and
(c)
a defined benefit fund that wishes to accept a new defined benefit member after the commencement of this Division; and
(d)
a defined benefit fund that wishes to convert a member of the fund to a defined benefit member after the commencement of this Division.
9.04A(2)
[Funds not applicable]
This Division does not apply to a fund that is part of:
(a)
the scheme established by the Superannuation Act 1976; or
(b)
the scheme established under the provisions of the Superannuation Act 1990; or
(c)
the Military Superannuation and Benefits Scheme; or
(d)
an exempt public sector superannuation scheme.
History
Reg 9.04A inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04B
9.04B
SUB-FUNDS TO BE TREATED AS FUNDS
A sub-fund within a defined benefit fund is taken, for the purposes of this Division, to be a defined benefit fund if the sub-fund satisfies the following conditions:
(a)
the sub-fund has separately identifiable assets and separately identifiable beneficiaries;
(b)
the interest of each beneficiary of the sub-fund is determined by reference only to the conditions governing that sub-fund.
History
Reg 9.04B inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04C
9.04C
OPERATING STANDARD
For subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds that are defined benefit funds.
History
Reg 9.04C inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04D
SIZE OF DEFINED BENEFIT FUNDS
9.04D(1)
[New funds]
A defined benefit fund established after the commencement of this Division must have at least 50 defined benefit members.
9.04D(2)
[Converted funds]
A fund that is converted to a defined benefit fund after the commencement of this Division must have at least 50 defined benefit members.
9.04D(3)
[New members]
A defined benefit fund may accept a new defined benefit member after the commencement of this Division only if the fund will have at least 50 defined benefit members after accepting the new defined benefit member.
9.04D(4)
[Converted members]
A defined benefit fund may convert a member of the fund to a defined benefit member after the commencement of this Division only if the fund will have at least 50 defined benefit members after converting the member to a defined benefit member.
History
Reg 9.04D inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
Division 9.2B - Provision of defined benefit pensions
History
Div 9.2B inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04E
9.04E
DEFINITION FOR DIVISION 9.2B
In this Division:
defined benefit pension
means a pension under section 10 of the Act, other than:
(a)
a pension wholly determined by reference to policies of life assurance purchased or obtained by the trustee of a regulated superannuation fund solely for the purposes of providing benefits to members of that fund; or
(b)
an allocated pension; or
(c)
a market linked pension; or
(d)
an account-based pension.
History
Reg 9.04E amended by SLI No 74 of 2007, reg 5 and Sch 3 items 82 and 83, by substituting "pension; or" for "pension." in para (c) and inserting para (d), effective 1 July 2007.
Reg 9.04E amended by SR No 148 of 2004, reg 3 and Sch 3 item 38, by substituting paras (b) and (c) for para (b), effective 20 September 2004. Para (b) formerly read:
(b)
an allocated pension.
Reg 9.04E inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04F
APPLICATION OF DIVISION 9.2B
9.04F(1)
[Applicable funds]
This Division applies to:
(a)
a regulated superannuation fund established after the commencement of this Division, the governing rules of which provide for the payment of a defined benefit pension; and
(b)
a regulated superannuation fund established before the commencement of this Division, the governing rules of which are amended after the commencement of this Division to provide for the payment of a defined benefit pension.
9.04F(2)
[Funds not applicable]
This Division does not apply to a fund that is part of:
(a)
the scheme established by the Superannuation Act 1976; or
(b)
the scheme established under the provisions of the Superannuation Act 1990; or
(c)
the Military Superannuation and Benefits Scheme; or
(d)
an exempt public sector superannuation scheme.
History
Reg 9.04F inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04G
9.04G
SUB-FUNDS TO BE TREATED AS FUNDS
A sub-fund within a regulated superannuation fund is taken, for the purposes of this Division, to be a regulated superannuation fund if the sub-fund satisfies the following conditions:
(a)
the sub-fund has separately identifiable assets and separately identifiable beneficiaries;
(b)
the interest of each beneficiary of the sub-fund is determined by reference only to the conditions governing that sub-fund.
History
Reg 9.04G inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04H
9.04H
OPERATING STANDARD
For subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds.
History
Reg 9.04H inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
REGULATION 9.04I
PROVISION OF DEFINED BENEFIT PENSIONS
9.04I(1)
[Number of members]
Subject to subregulation (3), a regulated superannuation fund that has less than 50 members must not provide a defined benefit pension.
History
Reg 9.04I(1) amended by SR No 155 of 2004, reg 3 and Sch 1 item 1, by substituting ``Subject to subregulation (3), a regulated superannuation fund'' for ``A regulated superannuation fund'', effective 25 June 2004.
9.04I(2)
[Effect]
Subregulation (1) has effect despite anything in the governing rules of the fund.
9.04I(3)
[Exception]
A regulated superannuation fund that has less than 50 members may provide a defined benefit pension only:
(a)
to a person:
(i)
who, on 11 May 2004, was a member of the fund; and
(ii)
who, before 1 January 2006:
(A)
retires (within the meaning of subregulation 6.01(7)) on or after attaining age 55; or
(B)
attains age 65; and
(iii)
who, after 11 May 2004 and before 1 January 2006, becomes entitled to be paid a defined benefit pension; and
(b)
if the first pension payment is made within 12 months after the day when the person became entitled to the pension.
History
Reg 9.04I(3) amended by SLI No 143 of 2005, reg 3 and Sch 1 item 1, by substituting ``1 January 2006'' for each mention of ``1 July 2005'', effective 18 June 2005.
Reg 9.04I(3) inserted by SR No 155 of 2004, reg 3 and Sch 1 item 2, effective 25 June 2004.
Reg 9.04I inserted by SR No 84 of 2004, reg 3 and Sch 1 item 10, effective 12 May 2004.
Division 9.3 - Funding and solvency of defined benefit funds
REGULATION 9.05
9.05
APPLICATION
This Division applies only to defined benefit funds other than:
(a)
funds that are part of one of the following schemes:
(i)
the scheme established by the Superannuation Act 1976;
(ii)
the scheme established under the provisions of the Superannuation Act 1990;
(iii)
the Military Superannuation and Benefits Scheme;
(iv)
the scheme established under the Superannuation (State Public Sector) Act 1990 (Qld); and
(b)
funds that are part of an exempt public sector superannuation scheme; and
(c)
funds that have never been used to reduce or remove the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992.
History
Reg 9.05 amended by SLI No 295 of 2009, reg 3 and Sch 1 items 1 and 2, by substituting "Benefits Scheme;" for "Benefits Scheme; and" in para (a)(iii) and inserting para (a)(iv), effective 3 November 2009.
REGULATION 9.06
INTERPRETATION
9.06(1)
[Definitions]
In this Division:
certified minimum contributions
, in relation to a fund, means the minimum contributions certified, in accordance with subregulation 9.10(1) or 9.18(9), in a funding and solvency certificate.
declared date
, in relation to a defined benefit fund that is technically insolvent, means the date on which a superannuation actuary declares in writing in accordance with paragraph 9.16(1)(a) that the fund is technically insolvent.
History
Definition of "declared date" amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
effective date
, in relation to a funding and solvency certificate, means the date specified in the certificate as the date on which the certificate takes effect.
expiry date
, in relation to a funding and solvency certificate, means the date specified in the certificate as the date on which the certificate expires.
minimum benefit index
, in relation to a defined benefit fund, means the index calculated in accordance with regulation 9.15.
notifiable event
, in relation to a defined benefit fund, means:
(a)
an amendment of the governing rules of the fund in a way that affects the level, or method of calculation, of the benefits of the fund; or
(aa)
the receipt by a trustee of the fund of a written direction from the Regulator under subregulation 9.09(1A); or
(b)
an event identified by a superannuation actuary, in accordance with paragraph 9.10(1)(c) or 9.18(9)(b), in a funding and solvency certificate relating to the fund.
History
Definition of "notifiable event" amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
Definition of "notifiable event" amended by SR No 113 of 2004, reg 3 and Sch 1 item 13, by inserting para (aa), effective 1 July 2004.
period of technical insolvency
, in relation to a defined benefit fund, means the period starting on the declared date and ending:
(a)
in the case where the responsible actuary is able to certify the solvency of the fund within 5 years of the declared date - on the effective date of the funding and solvency certificate in which the responsible actuary so certifies; and
(b)
in any other case - on the date 5 years after the declared date.
History
Definition of "period of technical insolvency" amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the responsible actuary" for "the actuary", effective 1 July 2013.
responsible actuary
, in relation to a defined benefit fund, means a superannuation actuary who, under subregulation 9.19(3), has accepted responsibility for the fund during its period of technical insolvency.
History
Definition of "responsible actuary" amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
special funding and solvency certificate
means a funding and solvency certificate referred to in subregulation 9.18(2).
9.06(2)
[Reference to solvency of a fund]
In this Division, a reference to the solvency of a fund is to be read as a reference to the minimum benefit index of the fund being certified in accordance with this Division as not less than 1.
9.06(3)
[Reference to technical insolvency of a fund]
In this Division, a reference to the technical insolvency of the fund is to be read as a reference to the minimum benefit index of the fund not being able to be certified in accordance with this Division as not less than 1.
REGULATION 9.07
9.07
PRESCRIPTION OF STANDARDS
For the purposes of subsection 31(1) of the Act, the standards contained in regulations 9.08, 9.09 and 9.17 are prescribed as standards applicable to the operation of defined benefit funds to which this Division applies.
REGULATION 9.08
FUNDING STANDARD
9.08(1)
[Contributions by employer-sponsor]
In respect of each year of income of a defined benefit fund to which this Division applies, an employer-sponsor of the fund must pay contributions to the fund in accordance with this regulation.
9.08(2)
[Certified minimum contributions]
The contributions paid must be not less than the certified minimum contributions relating to the fund.
9.08(3)
[Specifications by actuary]
Subject to subregulation (4), the contributions must be paid in accordance with any specification made by the superannuation actuary under paragraph 9.10(1)(g).
History
Reg 9.08(3) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.08(4)
[Contributions by specified instalments]
If, under paragraph 9.10(1)(g), a superannuation actuary has specified the instalments by which the certified minimum contributions must be paid, each instalment of the contribution must be paid not later than 28 days after the date indicated by the superannuation actuary as the date on which the instalment must be paid.
History
Reg 9.08(4) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary" and by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
9.08(5)
[Contributions not in instalments]
If the superannuation actuary has not, under paragraph 9.10(1)(g), specified payment by instalments, the contributions must be paid not later than 28 July following the end of the year of income in respect of which the contributions are payable.
History
Reg 9.08(5) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
REGULATION 9.09
FUNDING AND SOLVENCY CERTIFICATES - OPERATING STANDARD
9.09(1)
[Trustee to obtain actuary's certificate]
The trustee of a defined benefit fund to which this Division applies must, in accordance with this Division, obtain from a superannuation actuary a funding and solvency certificate in relation to the fund.
History
Reg 9.09(1) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
9.09(1A)
[Regulator's power]
The Regulator may direct the trustee of the fund, in writing, to obtain from a superannuation actuary a new or replacement funding and solvency certificate if the Regulator considers, on reasonable grounds, that to do so would be:
(a)
in the prudential interests of the fund; and
(b)
in the best interests of the members of the fund.
History
Reg 9.09(1A) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
Reg 9.09(1A) inserted by SR No 113 of 2004, reg 3 and Sch 1 item 14, effective 1 July 2004.
9.09(1B)
[Compliance with Regulator]
The trustee of the fund must comply with a written direction under subregulation (1A).
History
Reg 9.09(1B) inserted by SR No 113 of 2004, reg 3 and Sch 1 item 14, effective 1 July 2004.
9.09(2)
[Employer-sponsor to be provided with copy]
The trustee of the fund must, as soon as practicable, give a copy of a certificate obtained under this regulation to each employer-sponsor who has contributed or is contributing to the fund.
[
CCH Note: MODIFICATION DECLARATION No 1 of 2008
: (Registered on and effective 25 November 2008 applicable to all RSE Licensees):
Subregulation 9.09(2) of the SIS Regulations is modified by omitting subregulation 9.09(2) and substituting:
9.09(2) The trustee of the fund must, as soon as practicable, give a copy of a certificate obtained under this regulation to each employer-sponsor who has contributed, is contributing, or has the obligation to contribute, to the fund in respect of one or more defined benefit members of the fund.
]
REGULATION 9.10
CONTENTS OF FUNDING AND SOLVENCY CERTIFICATES
9.10(1)
[Details to be provided by actuary]
Subject to regulation 9.18 (relating to periods of technical insolvency), in the funding and solvency certificate required under regulation 9.09 in relation to a defined benefit fund, a superannuation actuary must:
(a)
in accordance with regulation 9.11, 9.13(5) or 9.14(4), specify the date on which the certificate takes effect; and
(b)
if subregulation 9.11(4) applies - make a statement in accordance with that subregulation; and
(c)
identify any event relating to the fund that, if the event occurs during the period when the certificate is in force, should, in the opinion of the superannuation actuary, require the certificate to cease to have effect and a new certificate to be obtained; and
(d)
in accordance with subregulation (2), specify the date on which the certificate expires; and
(e)
certify the solvency of the fund as at the effective date of the certificate; and
(f)
certify the minimum contributions reasonably expected by the superannuation actuary to be required in respect of any member or class of members to secure the solvency of the fund on the expiry date of the certificate; and
(g)
if the certified minimum contributions should, in the superannuation actuary's opinion, be paid by instalments - specify the number and amount of the instalments that must be paid and the frequency with which they must be paid; and
(h)
sign and date the certificate.
History
Reg 9.10(1) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" and by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.10(2)
[Date on which certificate expires]
The date specified under paragraph (1)(d) as the date on which the certificate expires must be a date that is:
(a)
not less than 12 months; and
(b)
not more than 5 years;
after the effective date of the certificate.
REGULATION 9.11
EFFECTIVE DATE OF FUNDING AND SOLVENCY CERTIFICATES
9.11(1)
[First funding and solvency certificate]
The first funding and solvency certificate obtained in respect of a defined benefit fund to which this Division applies must take effect on:
(a)
in the case of a fund in operation on 30 June 1994 in respect of which an actuarial investigation was carried out under paragraph 17(1)(a) of the Occupational Superannuation Standards Regulations on or after 1 July 1991 - whichever of the following dates is selected by the superannuation actuary:
(i)
the date of the last such actuarial investigation prior to 1 July 1994;
(ii)
1 July 1994; and
(b)
in the case of a fund in operation on 30 June 1994 to which paragraph (a) does not apply - 1 July 1994; and
(c)
in any other case - the date on which the fund is established.
History
Reg 9.11(1) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.11(2)
[Effective date earlier than signing date]
Subject to subregulations 9.13(5), 9.14(4) and 9.18(8), the effective date of a funding and solvency certificate may be a date earlier than the date on which the superannuation actuary signs the certificate but must not be more than 12 months earlier than that date, except in the case of a first funding and solvency certificate to which subregulation (3) applies.
History
Reg 9.11(2) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.11(3)
[First certificate takes effect before 1 July 1994]
If a first funding and solvency certificate takes effect in accordance with subparagraph (1)(a)(i) and the superannuation actuary signs the certificate not later than 30 June 1995, the effective date of the certificate may be more than 12 months earlier than the date on which the superannuation actuary signs the certificate.
History
Reg 9.11(3) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.11(4)
[Occurrence affecting contents of certificate]
If the effective date of a funding and solvency certificate is earlier than the date on which the superannuation actuary signs the certificate, the superannuation actuary must only sign the certificate if the superannuation actuary is not aware, and makes a statement in the certificate that he or she is not aware, of any occurrence between the effective date and the date of signing that would affect the contents of the certificate.
History
Reg 9.11(4) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
REGULATION 9.12
PERIOD OF EFFECT OF FUNDING AND SOLVENCY CERTIFICATES
9.12(1)
[Period of effect of certificate]
Subject to regulation 9.18, a funding and solvency certificate takes effect from and including the effective date to and including whichever of the following first occurs:
(a)
the expiry date; or
(b)
the date on which the certificate ceases to have effect under subregulation (2).
9.12(2)
[Certificate ceases to have effect]
A funding and solvency certificate relating to a defined benefit fund ceases to have effect if:
(a)
amounts from the fund are released to an employer-sponsor of the fund under section 117 of the Act; or
(b)
another funding and solvency certificate takes effect in respect of the fund; or
(c)
a notifiable event occurs in relation to the fund; or
(d)
an employer-sponsor of the fund fails to pay the contributions relating to the fund in accordance with subregulation 9.08; or
(e)
subparagraphs (2)(a), (b), (c) and (d) do not apply and the superannuation actuary, in the performance of his or her actuarial functions under the Act or these Regulations, forms the opinion that the certificate is no longer appropriate and withdraws the certificate by giving written notice of withdrawal to the trustee.
History
Reg 9.12(2) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
REGULATION 9.13
EFFECT OF NOTIFIABLE EVENTS ON FUNDING AND SOLVENCY CERTIFICATES
9.13(1)
[``lapsed certificate'']
In this regulation,
lapsed certificate
means a funding and solvency certificate that, under subregulation (2), has ceased to have effect because of the occurrence of a notifiable event.
9.13(2)
[Notifiable event occurs]
If a notifiable event occurs in relation to a defined benefit fund to which this Division applies:
(a)
the existing funding and solvency certificate in relation to the fund ceases to have effect at the end of the date on which the notifiable event occurs; and
(b)
the trustee of the fund must obtain a new funding and solvency certificate in accordance with this regulation.
9.13(3)
[New certificate]
The new funding and solvency certificate must be obtained not later than 3 months after the date on which the notifiable event occurs.
9.13(4)
[Kinds of new certificate]
The new funding and solvency certificate must be of a kind specified by a superannuation actuary at the request of the trustee, being whichever of the following kinds is considered by the superannuation actuary to be most appropriate, taking into account the nature of the notifiable event and its effect on the fund:
(a)
a new funding and solvency certificate having the same contents as the lapsed certificate;
(b)
a new funding and solvency certificate containing such modifications of the lapsed certificate as are specified by the superannuation actuary;
(c)
a new funding and solvency certificate unrelated to the lapsed certificate and relying upon new calculations to be made by the superannuation actuary.
History
Reg 9.13(4) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" and by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.13(5)
[Effective date of new certificate]
The date on which a new funding and solvency certificate obtained under subregulation (2), because of the occurrence of a notifiable event, takes effect must be the date immediately following the date on which the notifiable event occurs.
9.13(6)
[Expiry date]
The expiry date of the new funding and solvency certificate may be different from the expiry date of the lapsed certificate.
REGULATION 9.14
FURTHER FUNDING AND SOLVENCY CERTIFICATES TO BE OBTAINED
9.14(1)
[Definitions]
In this regulation:
effective funding and solvency certificate
means a funding and solvency certificate that has taken effect and has not expired or otherwise ceased to have effect.
term
, in relation to a funding and solvency certificate, means the period starting on the effective date of the certificate and ending on the expiry date of the certificate.
9.14(2)
[Time for obtaining further certificate]
Subject to regulations 9.13 and 9.18 and subregulation (3), the trustee of a defined benefit fund that has an effective funding and solvency certificate relating to the fund must obtain a further funding and solvency certificate relating to the fund that is signed:
(a)
in the case of a certificate having a term of 4 years or less - on or before the date on which 75% of the term expires; and
(b)
in the case of a certificate having a term of more than 4 years - not less than 12 months before the end of the term.
9.14(3)
[Certificate ceases to have effect]
If, under paragraphs 9.12(2)(a), (d) or (e), a funding and solvency certificate in relation to a fund ceases to have effect:
(a)
before the expiry date specified in the certificate; and
(b)
before a further funding and solvency certificate has been obtained under subregulation (2);
the trustee of the fund must obtain a further funding and solvency certificate not later than 3 months after the date on which the first-mentioned funding and solvency certificate ceased to have effect.
9.14(4)
[Effective date]
The date on which a further funding and solvency certificate referred to in subregulation (3) takes effect must be the date immediately following the date on which the previous funding and solvency certificate ceased to have effect.
REGULATION 9.15
MINIMUM BENEFIT INDEX
9.15(1)
[Calculation of index]
The minimum benefit index in respect of a defined benefit fund is the index calculated in accordance with the following formula:
9.15(2)
[Definitions]
In this regulation:
adjusted minimum benefit index
, in relation to a defined benefit fund, means:
(a)
if the index calculated as at the initial date in accordance with the following formula:
| |
is less than l - that index; and |
(b)
in any other case - an index of 1.
BEF
, in relation to a defined benefit fund, means the value of the benefit entitlements of former members of the fund.
benefit entitlements of former members
, in relation to a defined benefit fund, means the beneficial interests in the fund (including any amount that would be payable out of those interests to the spouse, or former spouse, of the former member under a payment split) of beneficiaries (including pension beneficiaries and deferred beneficiaries) who are not standard employer-sponsored members of the fund.
History
Definition of ``benefit entitlements of former members'' amended by SR No 353 of 2001, reg 3 and Sch 1 item 45, by inserting ``(including any amount that would be payable out of those interests to the spouse, or former spouse, of the former member under a payment split)'' after ``beneficial interests in the fund'', effective 28 December 2002.
FMRB
means the funded minimum requisite benefit.
funded minimum requisite benefit
, in relation to a defined benefit fund, means the amount that is the sum of:
(a)
the value of the pre-initial date component of the MRB multiplied by the adjusted minimum benefit index; and
(b)
the value of the post-initial date component of the MRB.
initial date
means whichever is the earlier of the following dates:
(a)
the date on which the first funding and solvency certificate in relation to the defined benefit fund takes effect in accordance with subregulation 9.11(1);
(b)
1 July 1994.
MRB
means the total amount of the minimum requisite benefits (including any amount that would be payable out of those benefits to the member's spouse or former spouse under a payment split) of all current members of the fund.
History
Definition of ``MRB'' amended by SR No 353 of 2001, reg 3 and Sch 1 item 46, by inserting ``(including any amount that would be payable out of those benefits to the member's spouse or former spouse under a payment split)'' after ``benefits'', effective 28 December 2002.
net realisable value of the assets
, in relation to a fund, means the amount calculated by deducting the estimated cost of disposing of the assets of the fund from the market value of those assets.
NRV
, in relation to a defined benefit fund, means the net realisable value of the assets of the fund.
REGULATION 9.16
NON-COMPLIANCE WITH SOLVENCY REQUIREMENT - TECHNICAL INSOLVENCY
9.16(1)
[Declaration by actuary]
If a superannuation actuary, in the course of carrying out actuarial functions in relation to a defined benefit fund, other than a fund that is technically insolvent, discovers that he or she is unable to certify the solvency of the fund as required under these regulations, the superannuation actuary must, as soon as practicable:
(a)
declare, in writing signed by the superannuation actuary, that the fund is technically insolvent on the date on which the declaration is made; and
(b)
deliver to the trustee a copy of the declaration of technical insolvency.
History
Reg 9.16(1) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" and by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.16(2)
[Date of insolvency]
A defined benefit fund is, for the purposes of these regulations, taken to be technically insolvent on and from the declared date.
REGULATION 9.17
9.17
TECHNICAL INSOLVENCY - OPERATING STANDARD
The trustee of a defined benefit fund that is taken to be technically insolvent for the purposes of these regulations must either:
(a)
initiate a program in accordance with this Division that is designed by a superannuation actuary to return the fund to a position that would enable the superannuation actuary to certify the solvency of the fund in a funding and solvency certificate in accordance with regulation 9.10 not later than 5 years after the date on which the technical insolvency commenced; or
(b)
initiate winding-up proceedings in accordance with Division 9.4.
History
Reg 9.17 amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" and by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
REGULATION 9.18
TECHNICAL INSOLVENCY PROGRAM - SPECIAL FUNDING AND SOLVENCY CERTIFICATE
9.18(1)
[``concluding date'']
In this regulation,
concluding date
, in relation to a funding and solvency certificate of a defined benefit fund, means whichever of the following first occurs:
(a)
the expiry date; or
(b)
the date on which the certificate ceases to have effect under subregulation 9.12(2).
9.18(2)
[Special funding and solvency certificate]
If a defined benefit fund is technically insolvent, the funding and solvency certificate that the trustee is required to obtain under regulation 9.09 must be a special funding and solvency certificate that complies with this regulation.
9.18(3)
[Period of effect]
A special funding and solvency certificate takes effect from and including the effective date to and including the concluding date.
9.18(4)
[``first special funding and solvency certificate'']
A special funding and solvency certificate (the
first special funding and solvency certificate
) must be obtained as soon as practicable after the date on which a defined benefit fund becomes technically insolvent and not later than 3 months after that date.
9.18(5)
[Effective date of first certificate]
The date on which the first special funding and solvency certificate obtained under subregulation (2) takes effect must be a date that is not more than 9 months earlier than the declared date.
9.18(6)
[Further certificates to be obtained]
At least one further special funding and solvency certificate must be obtained in each subsequent period of 12 months following the concluding date of the first special funding and solvency certificate until the end of the period of technical insolvency.
9.18(7)
[Time for obtaining further certificate]
Each further special funding and solvency certificate required under subregulation (6) must be obtained not later than 3 months after the concluding date of the previous special funding and solvency certificate.
9.18(8)
[Effective date of further certificate]
The date on which a further special funding and solvency certificate required under subregulation (6) takes effect must be the date immediately following the concluding date of the previous special funding and solvency certificate.
9.18(9)
[Contents of certificate]
In a special funding and solvency certificate relating to a defined benefit fund, a superannuation actuary must:
(a)
specify the date on which the certificate takes effect, in accordance with subregulation (5) and (8); and
(b)
identify any event relating to the fund that, if the event occurs during the period when the certificate is in force, should, in the opinion of the superannuation actuary, require the certificate to cease to have effect and a new certificate to be obtained; and
(c)
specify the date on which the certificate expires, in accordance with subregulation (10); and
(d)
certify the minimum contributions reasonably expected by the superannuation actuary to be required to secure the solvency of the fund at the end of the period of technical insolvency; and
(e)
certify the improvement (if any) in the level of the minimum benefit index from its level at the effective date of the immediately preceding funding and solvency certificate relating to the fund.
History
Reg 9.18(9) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" and by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.18(10)
[Date certificate expires]
The date specified under paragraph (9)(c) as the date on which the certificate expires must be a date that is 12 months after the effective date of the certificate.
REGULATION 9.19
TECHNICAL INSOLVENCY PROGRAMS - PROCEDURE
9.19(1)
[Procedures during technical insolvency]
This regulation sets out the procedure to be followed in relation to a defined benefit fund to which this Division applies during any period of technical insolvency of the fund.
9.19(2)
[Employer-sponsor to continue to contribute]
An employer-sponsor of the fund must continue to pay contributions that are not less than the certified minimum contributions as required under regulation 9.08.
9.19(3)
[Trustee to secure services of actuary]
The trustee of the fund must secure the services of a superannuation actuary for the fund who accepts responsibility for the actuarial management of the fund during the period of technical insolvency, including responsibility for the provision of special funding and solvency certificates and any approvals required under subregulation (4).
History
Reg 9.19(3) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
9.19(4)
[Payments from the fund]
The trustee must not make any payment from the fund unless, in respect of a payment:
(a)
the responsible actuary gives written approval for that particular payment to be made; or
(b)
the amount of the payment is determined in accordance with a scheme for payment approved in writing by the responsible actuary.
9.19(5)
[Actuary not able to accept responsibility]
If, during a period of technical insolvency of a fund, the responsible actuary for the fund is no longer willing or able to accept responsibility for the fund, the responsible actuary must, if practicable, inform the Regulator and the trustee that this is the case, giving the responsible actuary's reasons.
History
Reg 9.19(5) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the responsible actuary" for "the actuary", effective 1 July 2013.
Reg 9.19(5) amended by SR No 239 of 1999 and SR No 193 of 1998.
9.19(6)
[Change of fund's responsible actuary]
As soon as a trustee of a fund becomes aware that the responsible actuary for the fund is no longer willing or able to accept responsibility for the fund, the trustee must secure the services of another responsible actuary in accordance with subregulation (3) and must inform the Regulator of the change in the fund's responsible actuary.
History
Reg 9.19(6) amended by SR No 239 of 1999 and SR No 193 of 1998.
Division 9.4 - Winding-up of defined benefit funds
REGULATION 9.20
9.20
APPLICATION
This Division applies only to defined benefit funds other than:
(a)
funds that are part of one of the following schemes:
(i)
the scheme established by the Superannuation Act 1976;
(ii)
the scheme established under the provisions of the Superannuation Act 1990;
(iii)
the Military Superannuation and Benefits Scheme; and
(b)
funds that are part of an exempt public sector superannuation scheme; and
(c)
funds that have never been used to reduce or remove the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992.
REGULATION 9.21
INTERPRETATION
9.21(1)
[Definitions]
In this Division:
benefit entitlements of former members
has the same meaning as in subregulation 9.15(2).
funded minimum requisite benefit
has the same meaning as in subregulation 9.15(2).
minimum benefit index at the winding-up date
, in relation to a defined benefit fund, means an index calculated in accordance with regulation 9.15 except that the net realisable value of the assets is, for the purposes of the calculation, taken to be the net realisable value of the assets at the winding-up date as defined by this Division.
net realisable value of the assets at the winding-up date
, in relation to a defined benefit fund, means the amount calculated by deducting the sum of:
(a)
the actual cost of disposing of the assets of the fund; and
(b)
the administration, and other, costs associated with the winding-up proceedings being carried out in relation to the fund in accordance with this Division;
from the amount received on realisation of the assets of the fund.
period of technical insolvency
has the same meaning as in Division 9.3.
responsible actuary
, in relation to a defined benefit fund, means an actuary who, under subregulation 9.19(3), accepted responsibility for the fund during its period of technical insolvency.
winding-up date
, in relation to a defined benefit fund, means the date at which the trustee determines the allocations to be made, under the winding-up proceedings, to members of the fund in respect of their benefit entitlements.
9.21(2)
[Solvency of a fund]
In this Division, a reference to the solvency of a fund is to be read as a reference to the fund's minimum benefit index, as that term is defined in Division 9.3, being certified in accordance with that Division as not less than 1.
9.21(3)
[Technical insolvency of the fund]
In this Division, a reference to the technical insolvency of the fund is to be read as a reference to the fund's minimum benefit index, as that term is defined in Division 9.3, not being able to be certified in accordance with that Division as not less than 1.
REGULATION 9.22
9.22
PRESCRIPTION OF STANDARDS
For the purposes of subsection 31(1) of the Act, the standards contained in regulations 9.23, 9.24 and 9.25 are prescribed as standards applicable to the operation of defined benefit funds to which this Division applies.
REGULATION 9.23
WINDING-UP OF DEFINED BENEFIT FUNDS
9.23(1)
[Initiation of winding-up proceedings]
Subject to subregulation (4), the trustee of a defined benefit fund that is technically insolvent must initiate winding-up proceedings in accordance with this Division if:
(a)
the fund fails to comply with regulations 9.17, 9.18 or 9.19 during the period of technical insolvency; or
(b)
the superannuation actuary is unable to certify the solvency of the fund at the end of that period;
and regulation 9.24 does not apply.
History
Reg 9.23(1) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
9.23(2)
[Operation of Division]
Winding-up proceedings initiated under subregulation (1) must be carried out in accordance with this Division.
9.23(3)
[Proceedings initiated under other conditions]
Subject to subregulation (4), if a trustee of a defined benefit fund to which this Division applies initiates winding-up proceedings in relation to the fund otherwise than under subregulation (1), the winding-up proceedings must be carried out in accordance with this Division.
9.23(4)
[Winding-up schemes by the Regulator]
This regulation does not apply to a defined benefit fund in respect of which the Regulator formulates a scheme for the winding-up of the fund.
History
Reg 9.23(4) amended by SR No 239 of 1999 and SR No 193 of 1998.
REGULATION 9.24
ALTERNATIVE PROGRAMS APPROVED BY THE REGULATOR
9.24(1)
[Actuary's recommendations]
If, as an alternative to commencing winding-up proceedings, the responsible actuary of a defined benefit fund recommends in writing to the trustee of the fund a specified course of action, the trustee, if he or she wishes to accept the responsible actuary's recommendations, must, within 21 days after receiving the recommendations, forward a copy of the recommendations to the Regulator, together with a request that the Regulator approve the recommendations.
History
Reg 9.24(1) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the responsible actuary's" for "the actuary's", effective 1 July 2013.
Reg 9.24(1) amended by SR No 239 of 1999 and SR No 193 of 1998.
9.24(2)
[Trustee to follow approved recommendations]
If the Regulator approves the responsible actuary's recommendations, and notifies the trustee in writing of the approval, the trustee must follow the specified course of action as recommended.
History
Reg 9.24(2) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "the responsible actuary's" for "the actuary's", effective 1 July 2013.
Reg 9.24(2) amended by SR No 239 of 1999 and SR No 193 of 1998.
REGULATION 9.25
WINDING-UP PROCEEDINGS - PRIORITIES
9.25(1)
[Liabilities of the fund]
If, under regulation 9.23, winding-up proceedings in relation to a defined benefit fund are to be carried out in accordance with this Division, priority must be given to the liabilities of the fund in accordance with this regulation.
9.25(2)
[Administration and costs of proceedings]
The first charge on the assets of the fund must be the liability in respect of the administration and other costs associated with the winding-up proceedings.
9.25(3)
[Determination of priorities]
In determining the priorities to be given to the remaining liabilities of the fund, the trustee must ensure compliance with subregulations (4) and (5).
9.25(4)
[Minimum benefit index equal to or greater than 1]
If the fund's minimum benefit index at the winding-up date is equal to or greater than 1, the benefit entitlement allocated to each individual member of the fund at the winding-up date must be an amount that is not less than the sum of such part of:
(a)
the funded minimum requisite benefit; and
(b)
the benefit entitlements of former members;
as is attributable to that individual member.
9.25(5)
[Minimum benefit index less than 1]
If the fund's minimum benefit index at the winding-up date is less than 1, the benefit entitlement allocated to each individual member of the fund at the winding-up date must not be either:
(a)
greater than the amount referred to in subregulation (4) in respect of that individual member; or
(b)
less than an amount calculated by multiplying the amount referred to in subregulation (4) in respect of that individual member by the fund's minimum benefit index at the winding-up date.
Division 9.5 - Actuarial standards relating to defined benefit funds that are self-managed superannuation funds
History
Div 9.5 heading substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 13, effective 1 July 2013. Div 9.5 heading formerly read:
Division 9.5 - Actuarial standards relating to defined benefit funds
REGULATION 9.26
9.26
APPLICATION
This Division applies to a defined benefit fund that is a self-managed superannuation fund.
History
Reg 9.26 substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 14, effective 1 July 2013. Reg 9.26 formerly read:
REGULATION 9.26 APPLICATION
9.26
This Division applies only to defined benefit funds.
REGULATION 9.27
9.27
INTERPRETATION
In this Division:
accrued benefits
, in relation to a member of a defined benefit fund or a defined benefit sub-fund:
(a)
means the benefits to which the member has an absolute or potential entitlement at the valuation date on account of the length of time the member has been a member of the fund or sub-fund; and
(b)
includes any amount that would be payable out of the benefits mentioned in paragraph (a) to the member's spouse or former spouse under a payment split.
History
Definition of "accrued benefits" substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 15, effective 1 July 2013. The definition formerly read:
accrued benefits
, in relation to a member of a defined benefit fund, means the benefits to which the member has an absolute or potential entitlement at the valuation date on account of the length of time the member has been a member of the fund at that date (including any amount that would be payable out of those benefits to the member's spouse or former spouse under a payment split).
History
Definition of "accrued benefits" amended by SR No 353 of 2001, reg 3 and Sch 1 item 47, by substituting "that date (including any amount that would be payable out of those benefits to the member's spouse or former spouse under a payment split)." for "that date.", effective 28 December 2002.
Definition of "accrued benefits" amended by SR No 189 of 1994.
fully-funded
(Repealed by SLI No 155 of 2013)
History
Definition of "fully-funded" repealed by SLI No 155 of 2013, reg 4 and Sch 2 item 16, effective 1 July 2013. The definition formerly read:
fully-funded
, in relation to a fund, means funded in advance in accordance with actuarial advice at a level that is reasonably expected by the actuary to be adequate to provide for present and prospective liabilities in respect of benefits relating to the fund.
new fund
means:
(a)
any defined benefit fund established on or after 1 July 1994; or
(b)
any fund converted on or after 1 July 1994 to a defined benefit fund;
in respect of which no previous actuarial report has been made.
valuation date
, in relation to a defined benefit fund or sub-fund, means the date on which an investigation required under regulation 9.29 or 9.29A was carried out in relation to the fund or sub-fund.
History
Definition of "valuation date" substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 17, effective 1 July 2013. The definition formerly read:
valuation date
, in relation to a defined benefit fund, means the date as at which an investigation required under regulation 9.29 was carried out in relation to the fund.
REGULATION 9.28
9.28
PRESCRIPTION OF STANDARDS
For the purposes of subsection 31(1) of the Act, the standards contained in regulations 9.29, 9.29A and 9.30 are prescribed as standards applicable to the operation of defined benefit funds that are self managed superannuation funds.
History
Reg 9.28 substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 18, effective 1 July 2013. Reg 9.28 formerly read:
REGULATION 9.28 PRESCRIPTION OF STANDARDS
9.28
For the purposes of subsection 31(1) of the Act, the standards contained in regulations 9.29 and 9.30 are prescribed as standards applicable to the operation of defined benefit funds.
REGULATION 9.29
ACTUARIAL INVESTIGATION STANDARD
9.29(1)
Subject to regulation 9.29A, a trustee of a defined benefit fund must require an initial actuarial investigation (the
first actuarial investigation
) to be made in relation to the fund as a whole or each defined benefit sub-fund in the fund.
9.29(2)
If the first actuarial investigation is in relation to the fund as a whole it must be made:
(a)
for a defined benefit fund in operation on 30 June 1994 - at a date no later than 3 years after:
(i)
the date at which the last actuarial investigation of the fund as a whole was made; or
(ii)
if no actuarial investigation has been made - the date of establishment of the fund or conversion of the fund to a defined benefit fund; or
(b)
for a new fund - at the date of establishment or conversion of the fund.
9.29(3)
If the first actuarial investigation is in relation to a defined benefit sub-fund in the fund it must be made:
(a)
for a defined benefit sub-fund in operation on 30 June 1994 - at a date no later than 3 years after:
(i)
the date at which the last actuarial investigation of the sub-fund was made; or
(ii)
if no actuarial investigation was made - the date of establishment of the sub-fund or conversion of the sub-fund to a defined benefit sub-fund; or
(b)
for a new defined benefit sub-fund - at the date of establishment or conversion of the sub-fund.
9.29(4)
A trustee of a defined benefit fund or sub-fund must, after the first actuarial investigation has been made in relation to the fund or sub-fund, require regular actuarial investigations to be made in relation to the fund or sub-fund at least every 3 years.
9.29(5)
The Commissioner of Taxation may direct the trustee of the fund or sub-fund, in writing, to require an actuarial investigation to be made in relation to the fund or sub-fund, if the Commissioner of Taxation considers, on reasonable grounds, that to do so would be:
(a)
in the prudential interests of the fund or sub-fund; and
(b)
in the best interests of the members or beneficiaries of the fund or sub-fund.
9.29(6)
The trustee of the fund or sub-fund must comply with a written direction under subregulation (5).
History
Reg 9.29 substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 19, effective 1 July 2013. Reg 9.29 formerly read:
REGULATION 9.29 ACTUARIAL INVESTIGATION STANDARD
9.29(1)
A trustee of a defined benefit fund must require an actuarial investigation to be made in relation to the fund:
(a)
in the case of a defined benefit fund in operation on 30 June 1994 - as at a date not later than 3 years after:
(i)
the date as at which the last actuarial investigation was made; or
(ii)
if no actuarial investigation was made - the date of establishment of the fund, or conversion of the fund to a defined benefit fund; and
(b)
in the case of a new fund - as at the date of establishment or conversion of the fund;
and, in all cases, after the first actuarial investigation has been made in relation to a fund under paragraph (a) or (b), further regular actuarial investigations must be made as at a date not later than 3 years after the date as at which the last actuarial investigation was made.
[
CCH Note:
Reg 9.29 ceased to apply from 12 January 1999 - see now reg 9.29A.]
History
Reg 9.29 amended by SR No 113 of 2004, reg 3 and Sch 1 item 15, by renumbering reg 9.29 as reg 9.29(1), effective 1 July 2004.
9.29(2)
The Regulator may direct the trustee of the fund, in writing, to require an actuarial investigation to be made in relation to the fund if the Regulator considers, on reasonable grounds, that to do so would be:
(a)
in the prudential interests of the fund; and
(b)
in the best interests of the members or beneficiaries of the fund.
History
Reg 9.29(2) inserted by SR No 113 of 2004, reg 3 and Sch 1 item 16, effective 1 July 2004.
9.29(3)
The trustee of the fund must comply with a written direction under subregulation (2).
History
Reg 9.29(3) inserted by SR No 113 of 2004, reg 3 and Sch 1 item 16, effective 1 July 2004.
REGULATION 9.29A
ACTUARIAL INVESTIGATION STANDARD - EXEMPTION
9.29A(1)
Regulation 9.29 does not apply to a defined benefit fund or a defined benefit sub-fund to which this regulation applies.
9.29A(2)
This regulation applies to a defined benefit fund or a defined benefit sub-fund that pays a defined benefit pension to at least one member.
9.29A(3)
The trustee must require annual actuarial investigations to be made in relation to the fund or sub-fund, starting from the day that is 1 year after the day on which the fund or sub-fund made the first defined benefit pension payment.
History
Reg 9.29A inserted by SLI No 155 of 2013, reg 4 and Sch 2 item 19, effective 1 July 2013.
REGULATION 9.30
ACTUARIAL REPORTING STANDARD
9.30(1)
A trustee of a defined benefit fund or a defined benefit sub-fund must obtain an actuarial report in accordance with this regulation in relation to each investigation that is required to be made under regulation 9.29 or 9.29A in relation to the fund or sub-fund.
9.30(2)
The actuarial report must be obtained within the period of 12 months commencing on the date immediately following the valuation date in relation to the fund or sub-fund.
9.30(3)
The actuarial report must contain the information mentioned in regulation 9.31.
History
Reg 9.30 substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 19, effective 1 July 2013. Reg 9.30 formerly read:
REGULATION 9.30 ACTUARIAL REPORTING STANDARD
9.30(1)
A trustee of a defined benefit fund must obtain an actuarial report in accordance with this regulation in relation to each investigation required to be made under regulation 9.29 in relation to the fund.
9.30(2)
The actuarial report must be obtained within the period of 12 months commencing on the date immediately following the valuation date in relation to the fund.
9.30(3)
The actuarial report must contain:
(a)
in relation to a private sector fund or a fully funded public sector superannuation scheme - the matters specified in regulation 9.31; and
(b)
in relation to a public sector superannuation scheme that is not fully funded - the matters specified in regulation 9.32.
REGULATION 9.31
CONTENTS OF ACTUARIAL REPORT
9.31(1)
For regulation 9.30, an actuarial report must contain, in addition to any other required information:
(a)
a statement of the value of the assets of the fund or sub-fund at the valuation date; and
(b)
a statement of the SMSF actuary's opinion on whether, at the valuation date, the value of the fund's or sub-fund's assets is adequate to meet the value of the fund or sub-fund's liabilities in relation to the accrued benefits of members of the fund or sub-fund; and
(c)
for a regulated superannuation fund that has at least one defined benefit member who is being paid a defined benefit pension from the fund, but which has no defined benefit sub-funds - a statement of the SMSF actuary's opinion on whether, at the valuation date, there is a high degree of probability that the defined benefit fund will be able to pay the pension as required under the fund's governing rules; and
(d)
for a defined benefit sub-fund from which at least one defined benefit member is being paid a defined benefit pension - a statement of the SMSF actuary's opinion on whether, at the valuation date, there is a high degree of probability that the defined benefit sub-fund will be able to pay the pension as required under the fund's governing rules.
(e)
a statement recommending, in relation to the 3-year period immediately following the valuation date:
(i)
the rate at which, or the range of rates within which, the SMSF actuary considers employer contributions should be made; or
(ii)
if the SMSF actuary considers employer contributions should be made at different rates or within different ranges in respect of 2 or more periods within the 3-year period - those rates or ranges of rates; and
(f)
a statement, made in accordance with subregulations (3) and (4), regarding the financial position of the fund or the sub-fund; and
(g)
if the fund or sub-fund, has been used to reduce or remove the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992:
(i)
a statement that all funding and solvency certificates required under this Part during the period of the investigation to which the report relates were obtained; and
(ii)
a statement of the SMSF actuary's opinion regarding the likelihood of an actuary being able to certify the solvency of the fund or sub-fund in any funding and solvency certificate that may be required under these regulations during the 3-year period immediately following the valuation date; and
(h)
if a prescribed event for paragraph 342(4)(a) has occurred in relation to the grant or transfer of a pre-1 July 1988 funding credit - a statement that the prescribed event has occurred.
9.31(2)
In forming an opinion mentioned in paragraph (1)(b), (1)(c) or (1)(d), the SMSF actuary must consider:
(a)
the position of the fund or sub-fund at the valuation date; and
(b)
the likely future position of the fund or sub-fund during the 3 years immediately following the valuation date, based on the SMSF actuary's reasonable expectations.
9.31(3)
In making a statement regarding financial position under paragraph (1)(f), the SMSF actuary must indicate whether the financial position of the fund or sub-fund, is treated as unsatisfactory under regulation 9.04 and whether that position may, in the SMSF actuary's opinion, be about to become unsatisfactory, taking into consideration the matters referred to in regulation 9.03.
9.31(4)
If, in a statement made under paragraph (1)(f), the SMSF actuary considers that the stated financial position of the fund or sub-fund is dependent on certain actions being taken, or certain schemes being implemented, the SMSF actuary must indicate this and must include in the statement a detailed description of those actions or schemes.
History
Reg 9.31 substituted by SLI No 155 of 2013, reg 4 and Sch 2 item 19, effective 1 July 2013. Reg 9.31 formerly read:
REGULATION 9.31 CONTENTS OF ACTUARIAL REPORT - PRIVATE SECTOR FUNDS AND FULLY FUNDED PUBLIC SECTOR SUPERANNUATION SCHEMES
9.31(1)
Subject to regulation 9.33, an actuarial report required under regulation 9.30 that relates to a private sector fund or a fully funded public sector superannuation scheme must contain, in addition to any other matter:
(a)
a statement of the value of the assets of the fund at the valuation date; and
(b)
a statement of the actuary's opinion on whether, at the valuation date, the value of the assets of the fund is adequate to meet the value of the liabilities of the fund in respect of accrued benefits in the fund of members of the fund; and
(c)
a statement recommending, in respect of the 3-year period immediately following the valuation date, the rate at which, or the range of rates within which, the actuary considers employer contributions should be made or, where the actuary considers employer contributions should be made at different rates or within different ranges in respect of 2 or more periods within the 3-year period, such different rates or ranges of rates; and
(d)
a statement, made in accordance with subregulations (3) and (4) regarding the financial position of the fund; and
(e)
if the fund has been used to reduce or remove the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992:
(i)
a statement that all funding and solvency certificates required under this Part during the period of the investigation to which the report relates were obtained; and
(ii)
a statement of the actuary's opinion regarding the likelihood of an actuary being able to certify the solvency of the fund in any funding and solvency certificate that may be required under these regulations during the 3-year period immediately following the valuation date; and
(f)
if, under section 342 of the Act, a pre-1 July 1988 funding credit has been granted or, under Part 12 of these regulations, has been obtained by transfer and a prescribed event referred to in paragraph 342(4)(a) of the Act has occurred - a statement that the prescribed event has occurred.
9.31(2)
In forming an opinion referred to in paragraph (1)(b), an actuary must consider both:
(a)
the position of the fund at the valuation date; and
(b)
the likely future position of the fund, during the 3 years immediately following the valuation date, based on the reasonable expectations of the actuary.
9.31(3)
In making a statement regarding financial position under paragraph (1)(d), the actuary must indicate whether the financial position of the fund is treated as unsatisfactory under regulation 9.04 and whether the fund may, in the actuary's opinion, be about to become unsatisfactory, taking into consideration in relation to the fund the matters referred to in regulation 9.03.
9.31(4)
In a statement made under paragraph (1)(d), if an actuary considers that the stated financial position of the fund is dependant upon certain actions being taken or certain schemes being implemented, the actuary must indicate this and must include in the statement a detailed description of those actions or schemes.
9.32
(Repealed) REGULATION 9.32 CONTENTS OF ACTUARIAL REPORT - PUBLIC SECTOR SUPERANNUATION SCHEMES THAT ARE NOT FULLY FUNDED
(Repealed by SLI No 155 of 2013)
History
Reg 9.32 repealed by SLI No 155 of 2013, reg 4 and Sch 2 item 19, effective 1 July 2013. Reg 9.32 formerly read:
REGULATION 9.32 CONTENTS OF ACTUARIAL REPORT - PUBLIC SECTOR SUPERANNUATION SCHEMES THAT ARE NOT FULLY FUNDED
9.32
Subject to regulation 9.33, an actuarial report required under regulation 9.30 that relates to a public sector superannuation scheme that is not fully funded must contain, in addition to any other matter:
(a)
a statement of the value of the assets of the fund at the valuation date; and
(b)
if the actuary considers it appropriate, taking into account the proportion of the liabilities of the fund that are being funded - a statement recommending, in respect of the 3-year period immediately following the valuation date, the rate at which, or the range of rates within which, the actuary considers employer contributions should be made or, where the actuary considers employer contributions should be made at different rates, or within different ranges, in respect of 2 or more periods within the 3-year period, such different rates or ranges or rates; and
(c)
a statement regarding the adequacy of the funding of the liabilities of the fund, having regard to any guarantee given by the Commonwealth or by a State or Territory regarding the payment of benefits to members and taking into account any appropriations in respect of the fund; and
(d)
if, under section 342 of the Act, a pre-1 July 1988 funding credit has been granted or, under Part 12 of these Regulations, has been obtained by transfer and a prescribed event referred to in paragraph 342(4)(a) of the Act has occurred - a statement that the prescribed event has occurred.
9.33
(Repealed) REGULATION 9.33 CONTENT OF ACTUARIAL REPORT - NEWLY ESTABLISHED OR CONVERTED FUNDS
(Repealed by SLI No 155 of 2013)
History
Reg 9.33 repealed by SLI No 155 of 2013, reg 4 and Sch 2 item 19, effective 1 July 2013. Reg 9.33 formerly read:
REGULATION 9.33 CONTENT OF ACTUARIAL REPORT - NEWLY ESTABLISHED OR CONVERTED FUNDS
9.33
If an actuarial report required under regulation 9.30 relates to a new fund, the report;
(a)
must contain:
(i)
a statement recommending, in respect of the 3-year period immediately following the valuation date, the rate at which, or the range of rates within which, the actuary considers employer contributions should be made or, where the actuary considers employer contributions should be made at different rates or within different ranges in respect of 2 or more periods within the 3-year period, such different rates or ranges of rates; and
(ii)
a statement of the actuary's opinion regarding the likelihood of an actuary being able to certify the solvency of the fund in any funding and solvency certificate that may be required under these regulations during the 3-year period immediately following the valuation date; but
(b)
need not contain any of the other matters set out in regulation 9.31 or 9.32 (whichever is applicable).
Division 9.6 - Solvency of accumulation funds
REGULATION 9.34
9.34
APPLICATION
This Division applies only to accumulation funds other than:
(a)
funds that are part of an exempt public sector superannuation scheme; and
(b)
funds that have never been used to reduce or remove the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992.
REGULATION 9.35
INTERPRETATION
9.35(1)
[Definitions]
In this Division:
fund's actuary
, in relation to an accumulation fund, means a superannuation actuary whose services are secured by the trustee of the fund under subregulation 9.39(2).
History
Definition of "fund's actuary" amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
mandated employer-financed benefits
has the same meaning as in Part 5.
member financed-benefits
has the same meaning as in Part 5.
minimum guaranteed benefit
, in relation to a member of an accumulation fund, means an amount that is the sum of:
(a)
the member-financed benefits of the member; and
(b)
the mandated employer-financed benefits of the member; and
(c)
any minimum benefits of the member under regulation 5.06B, that are not included in paragraph (a) or (b).
History
Definition of "minimum guaranteed benefit" amended by SR No 353 of 2001, reg 3 and Sch 1 items 48 and 49, by substituting "member; and" for "member." in para (b) and inserting para (c), effective 28 December 2002.
net realisable value
, in relation to the assets of an accumulation fund, means the amount calculated by deducting the estimated cost of disposing of the assets of the fund from the market value of those assets.
period of technical insolvency
, in relation to an accumulation fund, means the period starting on the first day of the year of income in which the fund becomes technically insolvent or in which the trustee makes an election under subregulation 9.38(2) and ending on:
(a)
in the case where the fund is solvent at the beginning of a year of income that is earlier than the sixth year of income following the year of income in which the period starts - the first day of that first-mentioned year of income;
(b)
in any other case - the first day of that sixth year of income.
9.35(2)
[Reference to accumulation fund being solvent]
In this Division, a reference to an accumulation fund being solvent is to be read as a reference to the net realisable value of the assets of the fund being equal to or greater than the minimum guaranteed benefits of members of the fund.
9.35(3)
[Reference to fund being technically insolvent]
In this Division a reference to an accumulation fund being technically insolvent is to be read as a reference to the net realisable value of the assets of the fund being less than the minimum guaranteed benefits of members of the fund.
REGULATION 9.36
9.36
PRESCRIPTION OF STANDARDS - ACCUMULATION FUNDS
For the purposes of subsection 31(1) of the Act, the standards contained in regulations 9.37, 9.38 and 9.39 are prescribed as standards applicable to the operation of accumulation funds to which this Division applies.
History
Reg 9.36 amended by SR No 189 of 1994.
REGULATION 9.37
ACCUMULATION FUNDS SOLVENCY STANDARD
9.37(1)
[Addition to minimum guaranteed benefits]
Subject to subregulation (2), in a year of income the trustee of an accumulation fund that is solvent at the beginning of the year of income must not add such an amount to the minimum guaranteed benefits of members of the fund, in respect of the earnings of the fund, that would result in the fund being technically insolvent at the end of the year of income.
9.37(2)
[Amounts may be added under a program]
In a year of income, the trustee of an accumulation fund to which subregulation (1) applies may add an amount referred to in subregulation (1) if the amount is added in accordance with a program referred to in subregulation 9.38(2).
9.37(3)
[Technically insolvent accumulation funds]
In a year of income, the trustee of an accumulation fund that is technically insolvent at the beginning of the year of income must only add amounts to the minimum guaranteed benefits of members of the fund in accordance with a program referred to in subregulation 9.38(1).
REGULATION 9.38
TECHNICAL INSOLVENCY OF ACCUMULATION FUNDS - OPERATING STANDARD
9.38(1)
[Trustee to initiate program or winding-up]
The trustee of an accumulation fund that is technically insolvent must either:
(a)
initiate a program in accordance with this Division that is designed by a superannuation actuary to ensure that the fund is in a solvent position not later than at the end of the fifth year of income following the year of income in which the fund became technically insolvent; or
(b)
initiate winding-up proceedings.
History
Reg 9.38(1) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
9.38(2)
[Trustee may elect comparable program]
The trustee of an accumulation fund to which subregulation (1) does not apply may elect to have the fund comply with a program comparable with a program referred to in paragraph (1)(a), except that the program is designed to ensure that the fund is in a solvent position not later than at the end of the fifth year of income following the year of income in which the trustee made the election.
REGULATION 9.39
TECHNICAL INSOLVENCY PROGRAM FOR ACCUMULATION FUNDS - PROCEDURE
9.39(1)
[Procedure during technical insolvency]
This regulation sets out the procedure to be followed, in relation to an accumulation fund to which this Division applies, during any period of technical insolvency.
9.39(2)
[Actuary to design program]
The trustee of the fund must secure the services of a superannuation actuary for the fund, who must, as soon as practicable, design a program of the kind referred to in paragraph 9.38(1)(a) or subregulation 9.38(2) (whichever is applicable) and inform the trustee of the requirements of that program.
History
Reg 9.39(2) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
9.39(3)
[Addition to minimum guaranteed benefits]
The trustee of the fund must not add an amount to the minimum guaranteed benefits of members of the fund during any period of technical insolvency unless:
(a)
the addition is approved in writing by the fund's actuary; or
(b)
the amount is added in accordance with a scheme approved in writing by the fund's actuary for the adding of such amounts.
9.39(4)
[Payment from fund]
During any period of technical insolvency of the fund, the trustee of the fund must not make any payment from the fund unless:
(a)
the fund's actuary gives written approval for that particular payment to be made; or
(b)
the amount of the payment is determined in accordance with a scheme for payment approved in writing by the fund's actuary.
Division 9.7 - Winding-up of accumulation funds
REGULATION 9.40
9.40
APPLICATION
This Division applies only to accumulation funds to which Division 9.6 applies.
REGULATION 9.41
INTERPRETATION
9.41(1)
[Definitions]
In this Division:
fund's actuary
means a superannuation actuary whose services are secured under subregulation 9.39(2).
History
Definition of "fund's actuary" amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
minimum guaranteed benefit
, in relation to a member of an accumulation fund, has the same meaning as in Division 9.6.
net realisable value of the assets at the winding-up date
, in relation to an accumulation fund, means the amount calculated by deducting from the amount received on realisation of those assets the sum of:
(a)
the actual cost of disposing of the assets of the fund; and
(b)
the administration and other costs associated with winding-up proceedings in respect of the fund.
period of technical insolvency
, in relation to an accumulation fund, has the same meaning as in Division 9.6.
winding-up date
, in relation to an accumulation fund, means the date at which the trustee determines the allocations to be made, under the winding-up proceedings, to members of the fund in respect of their benefit entitlements.
9.41(2)
[Reference to accumulation fund being solvent]
In this Division, a reference to an accumulation fund being solvent at the winding-up date is to be read as a reference to the net realisable value of the assets at the winding-up date being equal to or greater than the minimum guaranteed benefits of members of the fund at that date.
9.41(3)
[Reference to fund being technically insolvent]
In this Division, a reference to an accumulation fund being technically insolvent at the winding-up date is to be read as a reference to the net realisable value of the assets at the winding-up date being less than the minimum guaranteed benefits of members of the fund at that date.
REGULATION 9.42
9.42
PRESCRIPTION OF STANDARDS - WINDING-UP OF ACCUMULATION FUNDS
For the purposes of subsection 31(1) of the Act, the standards contained in regulations 9.43, 9.44 and 9.45 are prescribed as standards applicable to the operation of accumulation funds which this Division applies.
REGULATION 9.43
WINDING-UP OF ACCUMULATION FUNDS
9.43(1)
[Trustee to initiate winding-up proceedings]
Subject to subregulation (4), the trustee of an accumulation fund to which this Division applies that is in a period of technical insolvency must initiate winding-up proceedings in accordance with this Division if;
(a)
the fund fails to comply with regulation 9.38 or 9.39 during a period of technical insolvency; or
(b)
the fund is not solvent within the meaning of that term in subregulation 9.35(2) on the date on which that period ends;
and regulation 9.44 does not apply.
9.43(2)
[Operation of Division]
Winding-up proceedings initiated under subregulation (1) must be carried out in accordance with this Division.
9.43(3)
[Proceedings initiated under other conditions]
Subject to subregulation (4), if a trustee of an accumulation fund to which this Division applies initiates winding-up proceedings in relation to the fund otherwise than under subregulation (1), the winding-up proceedings must be carried out in accordance with this Division.
9.43(4)
[Winding-up schemes by the Regulator]
This regulation does not apply to an accumulation fund in respect of which the Regulator formulates a scheme for the winding-up of the fund.
History
Reg 9.43(4) amended by SR No 239 of 1999 and SR No 193 of 1998.
REGULATION 9.44
ALTERNATIVE PROGRAMS APPROVED BY THE REGULATOR FOR ACCUMULATION FUNDS
9.44(1)
[Actuary's recommendations]
If, as an alternative to commencing winding-up proceedings, the fund's actuary recommends in writing to the trustee of the fund a specified course of action, the trustee, if he or she wishes to accept the recommendations of the fund's actuary, must, within 21 days after receiving the recommendations, forward a copy of the recommendations to the Regulator, together with a request that the Regulator approve the recommendations.
History
Reg 9.44(1) amended by SLI No 155 of 2013, reg 4 and Sch 1 item 99, by substituting "the fund's actuary" for "an accumulation fund's actuary", effective 1 July 2013.
Reg 9.44(1) amended by SR No 239 of 1999 and SR No 193 of 1998.
9.44(2)
[Trustee to follow approved recommendations]
If the Regulator approves the recommendations of the fund's actuary and notifies the trustee in writing of the approval, the trustee must follow the specified course of action as recommended.
History
Reg 9.44(2) amended by SR No 239 of 1999 and SR No 193 of 1998.
REGULATION 9.45
ACCUMULATION FUND WINDING-UP PROCEEDINGS - PRIORITIES
9.45(1)
[Liabilities of the fund]
If a trustee of an accumulation fund initiates winding-up proceedings in relation to the fund, priority must be given to the liabilities of the fund in accordance with this regulation.
9.45(2)
[Administration and costs of proceedings]
The first charge on the assets of the fund must be the liability in respect of the administration and other costs associated with the winding-up proceedings.
9.45(3)
[Determination of priorities]
In determining the priorities to be given to the remaining liabilities of the fund, the trustee must ensure compliance with subregulations (4) and (5).
9.45(4)
[Fund solvent at winding-up date]
If the fund is solvent at the winding-up date, the amount allocated to each individual member of the fund at the winding-up date must not be less than the minimum guaranteed benefit of the member.
9.45(5)
[Fund technically insolvent at winding-up date]
If the fund is technically insolvent at the winding-up date, an amount equal to the net realisable value of the assets at the winding-up date must be apportioned among all the members of the fund at that date so that the proportion of that amount that is apportioned to an individual member bears the same relation to the whole amount as the minimum guaranteed benefit of that member bears to the total of minimum guaranteed benefits in respect of all the members of the fund at the winding-up date.
PART 9AA - REQUIREMENTS RELATING TO MYSUPER PRODUCTS
[
CCH Note:
The first occurring Part 9A heading has been renumbered to Part 9AA, in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003.]
History
Pt 9A inserted by SLI No 26 of 2013, reg 4 and Sch 3 item 5, effective 1 July 2013.
REGULATION 9.46
NOTIFICATION - ACCRUED DEFAULT AMOUNT ATTRIBUTED TO MYSUPER PRODUCT
9.46(1)
For subsection 29SAA(3) of the Act, the RSE licensee must give the member a notice in writing in accordance with subregulation (3) at least 90 days before the attribution of the accrued default amount or the transfer of the accrued default amount to another fund.
9.46(2)
However, this regulation does not apply to the RSE licensee if the attribution or transfer will not result in any of the following:
(a)
an increase in a fee or charge that applies to the amount;
(b)
a reduction in an insured benefit that is attributable to the member;
(c)
an increase in an insurance premium that is attributable to the member;
(d)
a change in the investment strategy that relates to the amount.
9.46(3)
For subregulation (1), the notice must mention the following:
(a)
the amount that is attributable to the member at the time the notice is sent;
(b)
the name of the MySuper product to which the amount will be attributed or transferred;
(c)
how the member can elect, in writing, to opt out of the attribution or transfer;
(d)
how the member may obtain a product disclosure statement for the MySuper product;
(e)
any change to a fee or charge that applies to the amount;
(f)
any change to the member's insured benefits as a result of the attribution or transfer;
(g)
any change to the investment strategy applicable to the amount as a result of the attribution or transfer;
(h)
any other information that the member needs to understand the attribution or transfer.
9.46(4)
For paragraph (3)(e), the fee or charge must be stated in dollars.
9.46(5)
However, ASIC may determine that the fee or charge be stated another way if, in ASIC's opinion, there is a compelling reason why it is not possible to state the fee or charge in dollars.
9.46(6)
A determination under subregulation (5) must be published in the Gazette.
History
Reg 9.46 inserted by SLI No 26 of 2013, reg 4 and Sch 3 item 5, effective 1 July 2013.
REGULATION 9.46A
NOTIFICATION - PERIODIC STATEMENTS
9.46A(1)
This regulation is made for subsection 29SAA(3) of the Act.
9.46A(2)
An RSE licensee of a regulated superannuation fund that has made an election in accordance with section 29SAA of the Act must give a member of the fund mentioned in paragraph 29SAA(3)(a) or (b) of the Act a notice in writing.
9.46A(3)
The notice must mention the following:
(a)
the RSE licensee's obligation to:
(i)
move the accrued default amount by 30 June 2017; and
(ii)
promote the financial interests of the member in relation to a MySuper product held by the member; and
(b)
the accrued default amount; and
(c)
either:
(i)
if the RSE licensee has identified a MySuper product, either within the fund or in another regulated superannuation fund, to which the RSE licensee proposes to move the accrued default amount - the name of the MySuper product, and when the proposed move will occur; or
(ii)
if the RSE licensee has not identified such a MySuper product - why the RSE licensee has not done so, and what the RSE licensee has done, and will do, to do so.
9.46A(4)
The notice must be given to the member with:
(a)
the first periodic statement sent to the member after the RSE licensee has identified the accrued default amount; and
(b)
each subsequent periodic statement sent to the member until the accrued default amount is moved to a MySuper product.
History
Reg 9.46A inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 100, effective 1 July 2013.
REGULATION 9.47
9.47
OTHER FACTORS THAT MAY BE USED FOR A LIFECYCLE MYSUPER PRODUCT
For paragraph 29TC(2)(b) of the Act, the factors are:
(a)
the member's:
(i)
account balance; and
(ii)
contribution rate; and
(iii)
current salary; and
(iv)
gender; and
(b)
the time remaining, in the opinion of the trustee, before the member could be expected to retire.
History
Reg 9.47 inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 100, effective 1 July 2013.
REGULATION 9.48
LIMITATION IMPOSED BY GOVERNING RULES
9.48(1)
For paragraph 29TC(3)(a) of the Act, the following limitations on the source or kind of contributions made by or on behalf of a person who holds a MySuper product offered by a regulated superannuation fund are prescribed:
(a)
a limitation on a contribution, by way of transfer, from a fund that is, at the time the transfer is made:
(i)
a foreign superannuation fund; or
(ii)
a fund that is similar to a foreign superannuation fund;
(b)
a limitation on the contribution of an asset in a form other than money;
(c)
a limitation in relation to a contribution by a non-associated employer to:
(i)
a MySuper product that is authorised because section 29TB of the Act is satisfied; or
(ii)
a corporate MySuper product.
9.48(2)
In this regulation:
corporate MySuper product
has the meaning given by subsection 23A(3) of the Fair Work Act 2009.
foreign superannuation fund
has the meaning given by section 995-1 of the 1997 Tax Act.
non-associated employer
means a person who is not:
(a)
an employer of the person who holds the MySuper product; or
(b)
an employer associated with the employer of the person who holds the MySuper product.
History
Reg 9.48 inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 100, effective 1 July 2013.
REGULATION 9.49
9.49
OPT-OUT INSURANCE FOR MYSUPER MEMBERS CANNOT BE OBTAINED AT REASONABLE COST
For subsection 68AA(7) of the Act, the circumstances are that the trustee certifies, in writing, that the trustee is reasonably satisfied the risk that is to be insured cannot:
(a)
be placed with an insurer at a reasonable cost; or
(b)
be provided on an opt-out basis.
History
Reg 9.49 inserted by SLI No 26 of 2013, reg 4 and Sch 3 item 5, effective 1 July 2013.
REGULATION 9.50
CAPPED FEES AND COSTS
9.50(1)
This regulation is made for the purposes of paragraph 99G(3)(c) of the Act.
9.50(2)
The amount prescribed as part of the capped fees and costs charged to a member of a regulated superannuation fund in relation to a MySuper product or choice product for a year of income of the fund is so much of the indirect cost of the MySuper product or the choice product for the year that is required to be reported to the member under section 1017D of the Corporations Act 2001 as:
(a)
is not charged to the member as a fee; and
(b)
is incurred by the trustee or the trustees of the fund in relation to the year; and
(c)
relates to the administration of the fund or investment of the assets of the fund.
History
Reg 9.50 inserted by FRLI No F2019L00539, reg 4 and Sch 1 item 31, effective 6 April 2019.
REGULATION 9.51
9.51
FEE CAP PERCENTAGE
For the purposes of subsection 99G(4) of the Act, the fee cap percentage is 3%.
Note:
The fee cap percentage prescribed in this regulation would also apply in relation to subsections 99G(2) and (5) of the Act as those subsections are affected by item 20 of Schedule 1 to the Treasury Laws Amendment (Protecting Your Superannuation Package) Act 2019.
History
Reg 9.51 inserted by FRLI No F2019L00539, reg 4 and Sch 1 item 31, effective 6 April 2019.
PART 9AB - ANNUAL PERFORMANCE ASSESSMENTS ETC.
History
Pt 9AB inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
Division 9AB.1 - Preliminary
History
Div 9AB.1 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.1
9AB.1
DEFINITIONS
In this Part:
actual return
has the meaning given by regulations 9AB.11 and 9AB.12.
adjusted index
has the meaning given by subregulation 9AB.5A(7).
History
Definition of "adjusted index" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 1, effective 4 August 2023. For transitional provision, see reg 14.36.
administration fee cap
, of a Part 6A product in relation to a financial year, means the Part 6A product's fee cap (for the administration fee type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
administration fee flat amount
, of a Part 6A product in relation to a financial year, means the Part 6A product's dollar amount (for the administration fee type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
administration fee percentage
, of a Part 6A product in relation to a financial year, means the Part 6A product's percentage of member balance (for the administration fee type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
asset allocation standard
means:
(a)
the Financial Sector (Collection of Data) (reporting standard) determination No. 42 of 2023; or
(b)
an analogous legislative instrument (whether or not the legislative instrument is in force).
History
Definition of "asset allocation standard" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 2, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
asset allocation standard
means:
(a)
the Financial Sector (Collection of Data) (reporting standard) determination No. 13 of 2015; or
(b)
an analogous legislative instrument that is in force before or after the determination mentioned in paragraph (a).
assumed annual fee
has the meaning given by regulation 9AB.17.
assumed index
has the meaning given by regulation 9AB.17.
History
Definition of "assumed index" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 3, effective 4 August 2023. For transitional provision, see reg 14.36.
assumed rate of tax
has the meaning given by regulation 9AB.17.
benchmark RAFE
, for a Part 6A product in relation to a financial year, has the meaning given by regulation 9AB.16.
benchmark return
has the meaning given by regulations 9AB.13 and 9AB.14.
covered asset class
has the meaning given by regulation 9AB.17.
currency exposure
:
(a)
of a standard Part 6A product in relation to a quarter, means the Part 6A product's currency exposure in relation to the quarter, as reported to APRA in accordance with the applicable asset allocation standard; and
(b)
of a lifecycle Part 6A product in relation to a lifestage and a quarter, means the Part 6A product's currency exposure in relation to the lifestage and the quarter, as reported to APRA in accordance with the applicable asset allocation standard.
History
Definition of "currency exposure" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 3, effective 4 August 2023. For transitional provision, see reg 14.36.
fees standard
means:
(a)
the Financial Sector (Collection of Data) (reporting standard) determination No. 47 of 2023; or
(b)
an analogous legislative instrument (whether or not the legislative instrument is in force).
History
Definition of "fees standard" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 4, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
fees standard
means:
(a)
the Financial Sector (Collection of Data) (reporting standard) determination No. 41 of 2015; or
(b)
an analogous legislative instrument that is in force before or after the determination mentioned in paragraph (a).
gross investment return net of fees
:
(a)
of a standard Part 6A product in relation to a quarter, means the Part 6A product's gross investment return net of fees in relation to the quarter, as reported to APRA in accordance with the applicable investment performance standard; and
(b)
of a lifecycle Part 6A product in relation to a lifestage and a quarter, means the Part 6A product's gross investment return net of fees in relation to the lifestage and the quarter, as reported to APRA in accordance with the applicable investment performance standard.
History
Definition of "gross investment return net of fees" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 5, effective 4 August 2023. For transitional provision, see reg 14.36.
hybrid platform TDP
means a platform TDP that is offered through one or more investment menus of the generic type or the lifecycle option type (in addition to investment menus of the platform type), as reported to APRA in accordance with the applicable RSE structure standard.
History
Definition of "hybrid platform TDP" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 5, effective 4 August 2023. For transitional provision, see reg 14.36.
IEH percentage, IEU percentage
and
IFI percentage
have the meanings given by subregulation 9AB.5A(6).
History
Definition of "IEH percentage, IEU percentage and IFI percentage" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 5, effective 4 August 2023. For transitional provision, see reg 14.36.
index
has the meaning given by regulation 9AB.5A.
History
Definition of "index" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 5, effective 4 August 2023. For transitional provision, see reg 14.36.
indirect cost ratio
, of a Part 6A product in relation to a financial year, means the Part 6A product's indirect cost ratio in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
initial quarter
of a Part 6A product means the first quarter in relation to which the trustee of the superannuation entity that offers the Part 6A product reported to APRA, in accordance with the applicable investment performance standard, a net investment return or gross investment return net of fees of the Part 6A product.
History
Definition of "initial quarter" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 5, effective 4 August 2023. For transitional provision, see reg 14.36.
investment fee cap
, of a Part 6A product in relation to a financial year, means the Part 6A product's fee cap (for the investment fee type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
investment fee flat amount
, of a Part 6A product in relation to a financial year, means the Part 6A product's dollar amount (for the investment fee type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
investment fee percentage
, of a Part 6A product in relation to a financial year, means the Part 6A product's percentage of member balance (for the investment fee type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
investment pathway
: if there is a choice of different ways of investing in a Part 6A product, as reported to APRA in accordance with the applicable RSE structure standard, each of those ways is an
investment pathway
of the Part 6A product.
History
Definition of "investment pathway" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 5, effective 4 August 2023. For transitional provision, see reg 14.36.
investment pathway weight
has the meaning given by subregulation 9AB.4A(9).
History
Definition of "investment pathway weight" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 5, effective 4 August 2023. For transitional provision, see reg 14.36.
investment performance standard
means:
(a)
the Financial Sector (Collection of Data) (reporting standard) determination No. 45 of 2023; or
(b)
the Financial Sector (Collection of Data) (reporting standard) determination No. 46 of 2023; or
(c)
an analogous legislative instrument (whether or not the legislative instrument is in force).
History
Definition of "investment performance standard" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 6, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
investment performance standard
means:
(a)
the Financial Sector (Collection of Data) (reporting standard) determination No. 40 of 2015; or
(b)
an analogous legislative instrument that is in force before or after the determination mentioned in paragraph (a).
lifecycle Part 6A product
has the meaning given by regulation 9AB.3.
lifestage weight
has the meaning given by regulation 9AB.4.
lookback period
, for a Part 6A product in respect of a financial year, has the meaning given by regulation 9AB.6.
net investment return
, of a Part 6A product in relation to a quarter, means the Part 6A product's net investment return in relation to the quarter, as reported to APRA in accordance with the applicable investment performance standard.
net return
, of a Part 6A product in relation to a quarter, means the Part 6A product's net return in relation to the quarter, as reported to APRA in accordance with the applicable investment performance standard.
performance measure
, for a Part 6A product for a financial year, has the meaning given by subregulation 9AB.10(3).
platform TDP
means a trustee-directed product that is offered through one or more investment menus of the platform type, as reported to APRA in accordance with the applicable RSE structure standard.
History
Definition of "platform TDP" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 7, effective 4 August 2023. For transitional provision, see reg 14.36.
representative administration fees and expenses
or
RAFE
has the meaning given by regulation 9AB.4A.
History
Definition of "representative administration fees and expenses or RAFE" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 8, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
representative administration fees and expenses
or
RAFE
:
(a)
for a standard Part 6A product in relation to a period, means the sum of the following:
(i)
the Part 6A product's representative member administration fees and costs in relation to the period, as reported to APRA in accordance with the applicable investment performance standard;
(ii)
the Part 6A product's representative member administration-related tax expense/benefit in relation to the period, as reported to APRA in accordance with the applicable investment performance standard;
(iii)
the Part 6A product's representative member advice fees and costs in relation to the period, as reported to APRA in accordance with the applicable investment performance standard;
(iv)
the Part 6A product's representative member advice-related tax expense/benefit in relation to the period, as reported to APRA in accordance with the applicable investment performance standard; and
(b)
for a lifecycle Part 6A product in relation to a period and a lifestage, means the sum of the following:
(i)
the Part 6A product's representative member administration fees and costs in relation to the period and the lifestage, as reported to APRA in accordance with the applicable investment performance standard;
(ii)
the Part 6A product's representative member administration-related tax expense/benefit in relation to the period and the lifestage, as reported to APRA in accordance with the applicable investment performance standard;
(iii)
the Part 6A product's representative member advice fees and costs in relation to the period and the lifestage, as reported to APRA in accordance with the applicable investment performance standard;
(iv)
the Part 6A product's representative member advice-related tax expense/benefit in relation to the period and the lifestage, as reported to APRA in accordance with the applicable investment performance standard.
RSE structure standard
means:
(a)
the Financial Sector (Collection of Data) (reporting standard) determination No. 43 of 2023; or
(b)
the Financial Sector (Collection of Data) (reporting standard) determination No. 44 of 2023; or
(c)
an analogous legislative instrument (whether or not the legislative instrument is in force).
History
Definition of "RSE structure standard" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 9, effective 4 August 2023. For transitional provision, see reg 14.36.
standard fees and costs arrangement
, of a Part 6A product in relation to a period, means the Part 6A product's standard fees and costs arrangement in relation to the period, as reported to APRA in accordance with the applicable investment performance standard and applicable RSE structure standard.
History
Definition of "standard fees and costs arrangement" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 9, effective 4 August 2023. For transitional provision, see reg 14.36.
standard Part 6A product
: a Part 6A product is a standard Part 6A product if it is not a lifecycle Part 6A product.
standard platform TDP
means a platform TDP that is not a hybrid platform TDP.
History
Definition of "standard platform TDP" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 9, effective 4 August 2023. For transitional provision, see reg 14.36.
strategic asset allocation
has the meaning given by regulation 9AB.5.
transaction costs cap
, of a Part 6A product in relation to a financial year, means the Part 6A product's fee cap (for the transaction costs type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
History
Definition of "transaction costs cap" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 9, effective 4 August 2023. For transitional provision, see reg 14.36.
transaction costs flat amount
, of a Part 6A product in relation to a financial year, means the Part 6A product's dollar amount (for the transaction costs type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
History
Definition of "transaction costs cap" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 9, effective 4 August 2023. For transitional provision, see reg 14.36.
transaction costs percentage
, of a Part 6A product in relation to a financial year, means the Part 6A product's percentage of member balance (for the transaction costs type of fee) in relation to the end of the financial year, as reported to APRA in accordance with the applicable fees standard.
History
Definition of "transaction costs percentage" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 9, effective 4 August 2023. For transitional provision, see reg 14.36.
trustee-directed product
has the meaning given by regulation 9AB.2.
History
Definition of "trustee-directed product" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 9, effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.1 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.2
MEANING OF PART 6A PRODUCT - TRUSTEE-DIRECTED PRODUCTS
9AB.2(1)
For the purposes of paragraph 60B(b) of the Act, trustee-directed products are identified as a class of beneficial interest in a regulated superannuation fund.
History
Reg 9AB.2(1) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 10, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.2(1) formerly read:
9AB.2(1)
For the purposes of paragraph 60B(b) of the Act, subregulation (2) identifies a trustee-directed product as a class of beneficial interest in a regulated superannuation fund.
9AB.2(2)
A class of beneficial interest in a regulated superannuation fund is a
trustee-directed product
in the fund if:
(a)
at least one of the beneficial interests in the class is not a superannuation interest (within the meaning of the 1997 Tax Act) that supports any of the following:
(i)
a superannuation income stream that is in the retirement phase;
(ii)
a superannuation income stream that is a transition to retirement income stream (within the meaning of Part 6 of these Regulations); and
(b)
the investment strategy, for the class of beneficial interest, of the trustee of the fund:
(i)
requires the class of beneficial interest to have strategic asset allocations to more than one covered asset class; and
(ii)
if there are only 2 such strategic asset allocations - requires each of those strategic asset allocations (expressed as a percentage) to the class of beneficial interest to exceed 10%; and
(c)
a beneficiary of the fund cannot require any trustee of the fund to alter an amount attributable to the beneficiary to be invested in a particular covered asset class; and
(d)
none of the exceptions in subregulations (5), (6) and (7) applies.
History
Reg 9AB.2(2) amended by FRLI No F2024L01610, reg 4 and Sch 1 item 9, by substituting para (a), effective 10 December 2024. Para (a) formerly read:
(a)
at least one of the beneficial interests in the class is not a superannuation interest (within the meaning of the 1997 Tax Act) that supports a superannuation income stream that is in the retirement phase; and
Reg 9AB.2(2) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 11, by substituting para (a), effective 4 August 2023. For transitional provision, see reg 14.36. Para (a) formerly read:
(a)
there is no beneficial interest in the class that is a superannuation interest (within the meaning of the 1997 Tax Act) that supports a superannuation income stream that is in the retirement phase; and
9AB.2(3)
For the purposes of paragraph (2)(b), in determining a strategic asset allocation to a covered asset class, assume that the class of beneficial interest is a standard Part 6A product.
History
Reg 9AB.2(3) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 12, by substituting "standard Part 6A product" for "Part 6A product", effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.2(4)
For the purposes of subparagraph (2)(b)(i), treat 2 covered asset classes for a quarter as being one covered asset class for the quarter if the only difference between the descriptions of those classes in the table in regulation 9AB.17 relating to the quarter is that:
(a)
the description of one of those classes contains the word "hedged"; and
(b)
the description of the other class contains the word "unhedged".
9AB.2(4A)
Despite subregulation (4), for the purposes of subparagraph (2)(b)(i), treat the covered asset classes for a quarter listed in each of the following paragraphs as each being one covered asset class for the quarter:
(a)
the covered asset classes identified in items 2, 3, 4, 5, 6 and 7 of the table in regulation 9AB.17;
(b)
the covered asset classes identified in items 16, 17 and 18 of that table;
(c)
the covered asset classes identified in items 19, 20 and 21 of that table;
(d)
the covered asset classesidentified in items 24, 25 and 26 of that table.
History
Reg 9AB.2(4A) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 13, effective 4 August 2023. For transitional provision, see reg 14.36.
Exceptions
9AB.2(5)
The exception in this subregulation applies if all the members of the fund who hold the class of beneficial interest in the fund are defined benefit members.
9AB.2(6)
The exception in this subregulation applies if the assets of the fund that are invested in respect of the class of beneficial interest are invested only in one or more of the following:
(a)
a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;
(b)
a life policy under which the benefit to a member (or a relative or dependant of a member) is based only on the realisation of a risk, not the performance of an investment;
(c)
an investment account contract the only beneficiaries of which are a member, and relatives and dependants of a member.
9AB.2(7)
The exception in this subregulation applies if:
(a)
the trustee of the fund does not engage in any activity relating to the management of investments in respect of the class of beneficial interest; and
(b)
each entity that manages investments in respect of the class of beneficial interest is not a connected entity in relation to the trustee of the fund; and
(c)
the trustee of the fund does not engage in any activity relating to setting of strategic asset allocations to the class of beneficial interest; and
(d)
each entity that sets strategic asset allocations to the class of beneficial interest is not a connected entity in relation to the trustee of the fund.
History
Reg 9AB.2 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.3
MEANING OF LIFECYCLE PART 6A PRODUCT
9AB.3(1)
A Part 6A product is a
lifecycle Part 6A product
if:
(a)
the investments supporting the Part 6A product are divided into categories; and
(b)
each such category of investments is referrable to a lifestage of the Part 6A product.
9AB.3(2)
Subregulation (3) applies in relation to a Part 6A product in respect of a financial year (the
current year
) if the Part 6A product was a lifecycle Part 6A product (disregarding paragraph (3)(a)) at any time in the lookback period for the Part 6A product in respect of the current year.
9AB.3(3)
For the purposes of applying this Part to the current year:
(a)
treat the Part 6A product as a lifecycle Part 6A product throughout that lookback period; and
(b)
treat the Part 6A product as having one lifestage in relation to each quarter that satisfies both of the following requirements:
(i)
the quarter is in that lookback period;
(ii)
the Part 6A product was not a lifecycle Part 6A product (disregarding paragraph (a)) at the end of the previous quarter.
Note 1:
For the purposes of applying this Part to the current year, the Part 6A product will be in the class specified in subregulation 9AB.9(3) in relation to the current year.
Note 2:
For the purposes of applying this Part to the current year, the Part 6A product will have a lifestage weight of one in relation to each quarter in the lookback period and the lifestage mentioned in paragraph (b).
9AB.3(4)
Paragraph (3)(b) does not apply in relation to the quarter mentioned in subparagraph (3)(b)(i) if APRA has made a determination under subregulation 9AB.14(10) that:
(a)
specifies the Part 6A product; and
(b)
specifies the superannuation entity that offers the Part 6A product; and
(c)
specifies 2 quarters, the later of which is the quarter mentioned in subparagraph (3)(b)(i) of this regulation.
9AB.3(5)
For the purposes of subparagraph (3)(b)(ii), if the previous quarter is before the Part 6A product's initial quarter, treat the reference in that subparagraph to the previous quarter as being a reference to the initial quarter.
History
Reg 9AB.3(5) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 14, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.3(5) formerly read:
9AB.3(5)
For the purposes of subparagraph (3)(b)(ii), if the previous quarter is before the first quarter (the
initial quarter
) in relation to which the trustee of the superannuation fund offering the Part 6A product reported to APRA, in accordance with the applicable investment performance standard, a net return of the Part 6A product, treat the reference in that subparagraph to the previous quarter as being a reference to the initial quarter.
History
Reg 9AB.3 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.4
MEANING OF LIFESTAGE WEIGHT
9AB.4(1)
The
lifestage weight
of a Part 6A product, in relation to a quarter and a lifestage, is:
(a)
the market value at the end of the previous quarter of all investments supporting the Part 6A product that are referable to the lifestage;
divided by;
(b)
the market value at the end of the previous quarter of all investments supporting the Part 6A product that are referable to a lifestage of the Part 6A product.
9AB.4(2)
For the purposes of subregulation (1), if the previous quarter is before the Part 6A product's initial quarter, treat the references in subregulation (1) to the previous quarter as being references to the initial quarter.
History
Reg 9AB.4(2) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 15, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.4(2) formerly read:
9AB.4(2)
For the purposes of subregulation (1), if the previous quarter is before the first quarter (the
initial quarter
) in relation to which the trustee of the superannuation entity offering the Part 6A product reported to APRA, in accordance with the applicable investment performance standard, a net return of the Part 6A product, treat the references in subregulation (1) to the previous quarter as being references to the initial quarter.
History
Reg 9AB.4 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.4A
MEANING OF REPRESENTATIVE ADMINISTRATION FEES AND EXPENSES OR RAFE
9AB.4A(1)
Representative administration fees and expenses
or
RAFE
, for a Part 6A product in relation to a period, means the sum of the following:
(a)
the Part 6A product's administration fees and costs, and related tax expenses and benefits, in relation to the period under the Part 6A product's standard fees and costs arrangement in relation to the period as reported to APRA in accordance with the applicable investment performance standard and applicable RSE structure standard;
(b)
the Part 6A product's advice fees and costs, and related tax expenses and benefits, in relation to the period under that standard fees and costs arrangement.
9AB.4A(2)
In working out an amount for the purposes of paragraph (1)(a) or (b), assume that the amount related to a beneficiary of the entity offering the Part 6A product with an account balance in respect of the Part 6A product throughout the period of:
(a)
if paragraph (b) does not apply - $50,000;
(b)
if there is a minimum balance requirement to access the Part 6A product that is greater than $50,000 - that minimum balance.
Lifecycle Part 6A products
9AB.4A(3)
Subregulations (4) to (6) apply if the Part 6A product is a lifecycle Part 6A product.
9AB.4A(4)
Despite subregulation (1), work out the
representative administration fees and expenses
or
RAFE
for the Part 6A product in relation to a period as follows:
(a)
first, work out each RAFE for the Part 6A product in relation to the period, in accordance with subregulation (1), on the assumptions that:
(i)
subregulation (1) applies separately in respect of each lifestage of the Part 6A product; and
(ii)
in applying subregulation (1) to a lifestage, references in that subregulation to amounts reported to APRA were references to such amounts to the extent that they relate to that lifestage;
(b)
next, identify the largest of the RAFEs worked out under paragraph (a).
9AB.4A(5)
Subregulation (6) applies if:
(a)
the lifecycle Part 6A product has particular lifestages at the start of a financial year; and
(b)
at one or more times during the year, the product starts to have different lifestages.
9AB.4A(6)
Despite subregulations (1) and (4), work out the RAFE for the Part 6A product in relation to the year as follows:
(a)
first, divide the year into periods on the following basis:
(i)
the first period starts at the start of the year;
(ii)
a new period starts each time the product starts to have different lifestages;
(iii)
the last period ends at the end of the year;
Note:
Each period, other than the last period, ends immediately before the first time after the start of that period at which there is a change of the lifestages.
(b)
next, work out the RAFE for the Part 6A product in relation to each period identified under paragraph (a), in accordance with subregulation (4);
(c)
next, work out the sum of the RAFEs worked out under paragraph (b).
Trustee-directed products
9AB.4A(7)
Subregulations (8) and (9) apply if the Part 6A product is a trustee-directed product.
9AB.4A(8)
Despite subregulations (1) to (6), work out the
representative administration fees and expenses
or
RAFE
for the Part 6A product in relation to a period as follows:
(a)
first, work out each RAFE for the Part 6A product in relation to each quarter in the period, in accordance with those subregulations, on the assumptions that:
(i)
those subregulations apply separately in respect of each investment pathway of the Part 6A product; and
(ii)
in applying those subregulations in respect of an investment pathway, references in those subregulations to amounts reported to APRA were references to such amounts to the extent that they relate to that investment pathway;
(b)
next, multiply each RAFE identified under paragraph (a) in relation to a quarter and an investment pathway by the investment pathway weight for the investment pathway for the quarter (see subregulation (9));
(c)
next, work out the sum of the results of paragraph (b).
9AB.4A(9)
The
investment pathway weight
of a Part 6A product for an investment pathway for a quarter is:
(a)
the market value at the end of the quarter of all member assets supporting the Part 6A product that are referable to the investment pathway;
divided by:
(b)
the market value at the end of the quarter of all member assets supporting the Part 6A product that are referable to an investment pathway of the Part 6A product.
History
Reg 9AB.4A inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 16, effective 4 August 2023. For transitional provision, see reg 14.36.
REGULATION 9AB.5
MEANING OF STRATEGIC ASSET ALLOCATION
9AB.5(1)
A Part 6A product's
strategic asset allocation
in relation to a quarter to a covered asset class for the quarter is:
(a)
unless paragraph (b) or (c) applies - the Part 6A product's benchmark asset allocation in relation to the quarter to the covered asset class, as reported to APRA in accordance with the applicable asset allocation standard (expressed as a fraction); or
(b)
unless paragraph (c) applies, if the Part 6A product does not have a benchmark asset allocation in relation to the quarter to the covered asset class - zero; or
(c)
if the quarter is before the Part 6A product's initial quarter - the product's benchmark asset allocation in relation to the initial quarter to the covered asset class (expressed as a fraction).
History
Reg 9AB.5(1) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 17, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.5(1) formerly read:
9AB.5(1)
A Part 6A product's
strategic asset allocation
in relation to a quarter to a covered asset class in relation to the quarter is the Part 6A product's benchmark asset allocation in relation to the quarter to the covered asset class, as reported to APRA in accordance with the applicable asset allocation standard.
9AB.5(2)
For the purposes of subregulation (1), if a benchmark asset allocation to a covered asset class does not identify an asset domicile type for the covered asset class:
(a)
treat half of the amount of that benchmark asset allocation as identified with an Australian domicile type;
(b)
treat half of the amount of that benchmark asset allocation as identified with an international domicile type; and
(c)
where the benchmark asset allocation identifies a currency hedging ratio for the covered asset class (including a currency hedging ratio of zero) - treat all of the amount of that currency hedging ratio as identified with the international domicile type; and
(d)
where the benchmark asset allocation does not identify a currency hedging ratio for the covered asset class:
(i)
if the Part 6A product does not have a currency exposure in relation to the quarter - treat a currency hedging ratio of zero as identified with the international domicile type; or
(ii)
if the Part 6A product has a currency exposure in relation to the quarter (including a currency exposure of zero) - treat a currency hedging ratio of the amount worked out under subregulation (3A) as identified with the international domicile type.
History
Reg 9AB.5(2) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 17, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.5(2) formerly read:
9AB.5(2)
For the purposes of subregulation (1), if a benchmark asset allocation to a covered asset class does not identify an asset domicile type for the covered asset class:
(a)
if the benchmark asset allocation does not identify a currency hedging ratio for the covered asset class, or identifies a currency hedging ratio of zero for the covered asset class:
(i)
treat half of the amount of that benchmark asset allocation as identified with an Australian domicile type; and
(ii)
treat half of the amount of that benchmark asset allocation as identified with an international domicile type; and
(iii)
treat a currency hedging ratio of zero as identified with the international domicile type; and
(b)
if the benchmark asset allocation does identify a currency hedging ratio for the covered asset class:
(i)
treat half of the amount of that benchmark asset allocation as identified with an Australian domicile type; and
(ii)
treat half of the amount of that benchmark asset allocation as identified with an international domicile type; and
(iii)
treat all of the amount of that currency hedging ratio as identified with the international domicile type.
9AB.5(3)
For the purposes of subregulation (1), if a benchmark asset allocation to a covered asset class identifies the international domicile type with the covered asset class and does not identify a currency hedging ratio for the covered asset class:
(a)
if the Part 6A product does not have a currency exposure in relation to the quarter - treat a currency hedging ratio of zero as identified with the international domicile type; or
(b)
if the Part 6A product has a currency exposure in relation to the quarter (including a currency exposure of zero) - treat a currency hedging ratio of the amount worked out under subregulation (3A) as identified with the international domicile type.
History
Reg 9AB.5(3) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 17, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.5(3) formerly read:
9AB.5(3)
For the purposes of subregulation (1), if a benchmark asset allocation to a covered class:
(a)
identifies the international domicile type with the covered asset class; and
(b)
does not identify a currency hedging ratio for the covered asset class;
treat a currency hedging ratio of zero as identified with the international domicile type.
9AB.5(3A)
For the purposes of subparagraph (2)(d)(ii) and paragraph (3)(b), work out the currency hedging ratio as follows:
(a)
first, work out the Part 6A product's strategic asset allocation, in relation to the quarter, to each covered asset class identified with the international domicile type;
(b)
next, work out the sum of the strategic asset allocations worked out under paragraph (a);
(c)
next, divide the currency exposure mentioned in subparagraph (2)(d)(ii) and paragraph (3)(b) by the result of paragraph (b);
(d)
next, subtract the result of paragraph (c) from one.
If the result of paragraph (d) is less than zero, treat it as being zero.
History
Reg 9AB.5(3A) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 17, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.5(4)
For the purposes of subregulation (1), if a benchmark asset allocation to a covered asset class does not identify an asset listing type for the covered asset class:
(a)
treat half of the amount of that benchmark asset allocation as identified with a listed type; and
(b)
treat half of the amount of that benchmark asset allocation as identified with an unlisted type.
Lifecycle Part 6A products
9AB.5(4A)
Subregulation (4B) applies if the Part 6A product is a lifecycle Part 6A product.
History
Reg 9AB.5(4A) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 18, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.5(4B)
Despite subregulations (1) to (4), work out the
strategic asset allocation
of a lifecycle Part 6A product in relation to a lifestage and a quarter to a covered asset class for the quarter on the assumptions that:
(a)
those subregulations apply separately in respect of each lifestage of the Part 6A product; and
(b)
in applying those subregulations to a lifestage, references in this regulation to amounts reported to APRA were references to such amounts to the extent that they relate to that lifestage.
History
Reg 9AB.5(4B) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 18, effective 4 August 2023. For transitional provision, see reg 14.36.
APRA's determination that information relates to particular concepts in asset allocation standards
9AB.5(5)
Subregulation (6) applies if it is not possible to work out a Part 6A product's strategic asset allocation in relation to a quarter to a covered asset class for the quarter because it is not clear whether particular information relevant to that strategic asset allocation relates to a particular concept in an asset allocation standard.
Note:
It may be possible to work out the strategic asset allocation under subregulations (2) to (4).
History
Reg 9AB.5(5) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 19, by substituting "strategic asset allocation in relation to a quarter to a covered asset class for the quarter" for "strategic asset allocation to a covered asset class in relation to a quarter", effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.5(6)
For the purposes of this regulation, treat the information as relating to a particular concept in an asset allocation standard if a determination under subregulation (7):
(a)
specifies:
(i)
the Part 6A product; and
(ii)
the superannuation entity that offers the Part 6A product; and
(iii)
the covered asset class; and
(iv)
the asset allocation standard; and
(v)
the quarter; and
(b)
states that the information relates to the concept in the asset allocation standard.
9AB.5(7)
For the purposes of subregulation (6), APRA may make a determination, in writing, that:
(a)
specifies:
(i)
a Part 6A product; and
(ii)
the superannuation entity that offers the Part 6A product; and
(iii)
a covered asset class; and
(iv)
an asset allocation standard; and
(v)
a quarter; and
(b)
states that specified information relates to a specified concept in the asset allocation standard.
9AB.5(8)
APRA must give a notice of the determination to the trustee of the superannuation entity specified in the determination. The notice must:
(a)
be in writing; and
(b)
include a copy of the determination.
Reporting other than on a quarterly basis
9AB.5(9)
Subregulation (10) applies in relation to a quarter (the
current quarter
) if:
(a)
an asset allocation standard requires a Part 6A product's benchmark asset allocation in relation to a reporting period (within the meaning of that standard) to be reported to APRA; and
(b)
that reporting period:
(i)
is not a quarter; but
(ii)
starts during the current quarter; and
(c)
no asset allocation standard requires the Part 6A product's benchmark asset allocation in relation to a different reporting period that starts:
(i)
during the current quarter; and
(ii)
after the start of the reporting period mentioned in paragraph (a);
to be reported to APRA.
9AB.5(10)
For the purposes of working out the Part 6A product's strategic asset allocation in relation to the current quarter to a covered asset class for the quarter, treat:
(a)
a reference in this regulation to the Part 6A product's benchmark asset allocation, in relation to the quarter, to the covered asset class as being a reference to the Part 6A product's benchmark asset allocation, in relation to the reporting period mentioned in paragraph (9)(a), to the covered asset class; and
(b)
a reference in subparagraph (6)(a)(v) or (7)(a)(v) to a quarter as being a reference to the reporting period.
History
Reg 9AB.5(10) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 20, by substituting "covered asset class for the quarter" for "covered asset class in relation to the quarter", effective 4 August 2023. For transitional provision, see reg 14.36.
Strategic asset allocations add up to less than 1
9AB.5(11)
Subregulation (12) applies if, in relation to a quarter, the sum of the strategic asset allocations of a standard Part 6A product in relation to the quarter, or a lifecycle Part 6A product in relation to a lifestage and the quarter, to all covered asset classes for the quarter is less than 1.
History
Reg 9AB.5(11) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 21, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.5(12)
For the purposes of this regulation, treat the strategic asset allocation of the standard Part 6A product in relation to the quarter, or the lifecycle Part 6A product in relation to the lifestage and the quarter, to each covered asset class for the quarter as being reasonably adjusted such that the sum mentioned in subregulation (11) is 1.
History
Reg 9AB.5(12) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 21, effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.5 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.5A
MEANING OF INDEX
9AB.5A(1)
Index
, of a covered asset class for a quarter, means the amount calculated using the following formula, rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more):
| Value at the end of the quarter of the assumed index for the covered asset class |
− |
1 |
| Value at the end of the previous quarter of the assumed index for the covered asset class |
Note:
For a covered asset class for a quarter that is identified in item 24, 25 or 26 of the table in regulation 9AB.17 (alternatives, defensive alternatives or growthalternatives asset class), see subregulations (4) to (7) of this regulation.
Late reporting of unlisted infrastructure indices
9AB.5A(2)
Subregulation (3) applies in relation to a covered asset class for a quarter if:
(a)
the covered asset class is identified in item 14 or 15 of the table in regulation 9AB.17; and
(b)
the value at the end of the quarter of the assumed index for the covered asset class is not publicly available earlier than 36 days after the end of the financial year in which the quarter occurs.
9AB.5A(3)
For the purposes of calculating the index of the covered asset class for the quarter:
(a)
treat the value at the end of the quarter of the assumed index for the covered asset class as being the value at the end of the quarter of the assumed index for the covered asset class identified in item 10 of the table in regulation 9AB.17; and
(b)
treat the value at the end of the previous quarter of the assumed index for the covered asset class as being the value at the end of the previous quarter of the assumed index for the covered asset class identified in item 10 of the table in regulation 9AB.17.
Index for alternatives, defensive alternatives and growth alternatives
9AB.5A(4)
Subregulations (5), (6) and (7) apply in relation to a covered asset class for a quarter if the covered asset class is identified in item 24, 25 or 26 of the table in regulation 9AB.17.
9AB.5A(5)
Despite subregulation (1), the index of the covered asset class for a quarter is the sum of the following:
(a)
the covered asset class's IEH percentage (see subregulation (6)) of the adjusted index (see subregulation (7)) of the covered asset class identified in item 2 (International Equity (hedged)) of the table in regulation 9AB.17 for the quarter;
(b)
the covered asset class's IEU percentage (see subregulation (6)) of the adjusted index (see subregulation (7)) of the covered asset class identified in item 5 (International Equity (unhedged)) of that table for the quarter;
(c)
the covered asset class's IFI percentage (see subregulation (6)) of the adjusted index (see subregulation (7)) of the covered asset class identified in item 19 (International Fixed Interest) of that table for the quarter.
9AB.5A(6)
The
IEH percentage
,
IEU percentage
and
IFI percentage
of the covered asset class mentioned in subregulation (4) is that identified in the item of the following table that has the covered asset class item number and covered asset class description that corresponds to the covered asset class:
|
Component percentages for calculation of adjusted index for alternatives
|
|
Covered asset class item
|
Covered asset class description
|
IEH percentage
|
IEU percentage
|
IFI percentage
|
| 24 |
Alternatives |
25% |
25% |
50% |
25 |
Defensive alternatives |
12.5% |
12.5% |
75% |
| 26 |
Growth alternatives |
37.5% |
37.5% |
25% |
9AB.5A(7)
For the purposes of paragraphs (5)(a), (b) and (c), work out the
adjusted index
of a covered asset class for a quarter using the following formula, rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more):
9AB.5A_7_formula
where:
ART
means the assumed rate of tax for the quarter for the covered asset class.
fee
means the assumed annual fee for the quarter for the covered asset class.
index
means the index of the covered asset class for the quarter.
History
Reg 9AB.5A inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 22, effective 4 August 2023. For transitional provision, see reg 14.36.
REGULATION 9AB.6
MEANING OF LOOKBACK PERIOD
9AB.6(1)
The
lookback period
for a Part 6A product in respect of a financial year means the period that:
(a)
starts on the later of the following:
(i)
the start of the first quarter in relation to which the trustee of the superannuation entity that offered the Part 6A product reported to APRA, in accordance with the applicable investment performance standard, a net investment return or gross investment return net of fees of the product;
(ii)
if the financial year is the 2020-21 financial year - the 1 July that is 6 years before 1 July in the financial year;
(iii)
if the financial year is the 2021-22 financial year - the 1 July that is 7 years before 1 July in the financial year;
(iv)
if the financial year is the 2022-23 financial year - the 1 July that is 8 years before 1 July in the financial year;
(v)
if the financial year is the 2023-24 financial year or a later financial year - the 1 July that is 9 years before 1 July in the financial year; and
(b)
ends on 30 June in the financial year.
Note:
The lookback period will be 10 financial years, unless subparagraph (a)(i), (ii), (iii) or (iv) applies.
History
Reg 9AB.6(1) amended by FRLI No F2023L01063, reg 4 and Sch 1 items 23-25, by substituting "net investment return or gross investment return net of fees" for "net return" in para (a)(i), substituting para (a)(ii) to (v) for para (a)(ii) and substituting the note, effective 4 August 2023. For transitional provision, see reg 14.36. Para (a)(ii) and the note formerly read:
(ii)
the 1 July that is 7 years before 1 July in the financial year; and
Note:
The lookback period will be 8 financial years, unless subparagraph (a)(i) applies.
9AB.6(2)
For the purposes of subparagraph (1)(a)(i), in determining the first quarter mentioned in that subparagraph, disregard a quarter if:
(a)
there was not, for the entire duration of the quarter, at least one beneficiary holding the Part 6A product; or
(b)
the superannuation entity was not, for the entire duration of the quarter, offering the Part 6A product as potentially generating returns.
History
Reg 9AB.6 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.7
SPECIFIED CIRCUMSTANCES AND PROVISIONS WHERE MULTIPLE PART 6A PRODUCTS TREATED AS ONE PART 6A PRODUCT - SUBSECTION 60G(1) OF ACT
9AB.7(1)
For the purposes of subsection 60G(1) of the Act, subregulations (2) and (3) of this regulation specify:
(a)
a kind of circumstances; and
(b)
provisions of Part 6A of the Act in relation to that kind of circumstances.
Note:
Subsection 60G(2) of the Act provides that in those kinds of circumstances, for the purposes of those provisions, 2 or more Part 6A products are treated as being one Part 6A product.
9AB.7(2)
This subregulation specifies the kind of circumstances that exist where:
(a)
a determination under subregulation (4) is in force in relation to 2 or more Part 6A products; and
(b)
APRA has given notice of the determination in accordance with subregulation (6).
9AB.7(3)
This subregulation specifies all the provisions of Part 6A of the Act (apart from section 60G) in relation to the kind of circumstances specified in subregulation (2).
APRA's determination
9AB.7(4)
For the purposes of paragraph (2)(a), APRA may make a determination, in writing, in relation to 2 or more specified Part 6A products offered by one or more specified regulated superannuation funds, if APRA considers that making the determination is appropriate in the circumstances.
Note:
For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
9AB.7(5)
For the purposes of APRA making a determination under subregulation (4) in the period:
(a)
starting on 15 August in a financial year; and
(b)
ending on 31 August in the financial year;
APRA may, in working out whether the making of the determination is appropriate in the circumstances, assume that the information available to it on that 15 August is the only information that is relevant to the determination.
9AB.7(6)
APRA must give a notice of the determination to each of the trustees of the regulated superannuation funds specified in the determination. The notice must:
(a)
be in writing; and
(b)
include a copy of the determination.
History
Reg 9AB.7 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
Division 9AB.2 - Performance assessments
History
Div 9AB.2 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.8
9AB.8
PERIOD FOR MAKING AND GIVING ANNUAL PERFORMANCE ASSESSMENT - PARAGRAPH 60C(4)(b) OF ACT
For the purposes of paragraph 60C(4)(b) of the Act, the period mentioned in that paragraph is the period that:
(a)
starts immediately after the end of the financial year mentioned in that paragraph; and
(b)
ends on the following 31 August.
History
Reg 9AB.8 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.9
SPECIFIED CLASSES OF PART 6A PRODUCT
9AB.9(1)
For the purposes of subsection 60D(1) of the Act, the following subregulations specify classes of Part 6A product in relation to a financial year.
Standard Part 6A products
9AB.9(2)
A class of Part 6A product is specified in relation to a financial year if each Part 6A product in the class is a standard Part 6A product throughout the financial year.
Lifecycle Part 6A products
9AB.9(3)
A class of Part 6A product is specified in relation to a financial year if each Part 6A product in the class is a lifecycle Part 6A product throughout the financial year.
History
Reg 9AB.9 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.10
REQUIREMENTS FOR ASSESSMENT
9AB.10(1)
For the purposes of subsection 60D(1) of the Act, subregulation (2) specifies a requirement for all specified classes of Part 6A product in relation to a financial year (the
assessment year
).
9AB.10(2)
The requirement is that:
(a)
information available to APRA on 15 August in the financial year after the assessment year shows that either or both of the following conditions are met:
(i)
the performance measure for the Part 6A product for the assessment year equals or exceeds −0.005;
(ii)
if the number of whole financial years in the lookback period for the Part 6A product in respect of the assessment year is less than 7 - there is no determination in force under subregulation (4) that specifies the Part 6A product, the superannuation entity that offers the Part 6A product and the assessment year; or
(b)
if APRA makes a determination under subregulation (7) specifying the Part 6A product, the superannuation entity that offers the Part 6A product and the assessment year - information available to APRA on the day specified in the determination shows that either or both of the conditions mentioned in paragraph (a) of this subregulation are met.
History
Reg 9AB.10(2) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 26, by substituting "7" for "5" in para (a)(ii), effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.10(3)
The
performance measure
for a Part 6A product for a financial year is the amount calculated using the following formula:
| (Actual return − Benchmark return) |
+ |
(Benchmark RAFE − Actual RAFE) |
where:
actual RAFE
means the representative administration fees and expenses for the Part 6A product in relation to the financial year.
actual return
means the actual return for the Part 6A product for the lookback period for the Part 6A product in respect of the financial year.
benchmark RAFE
means the benchmark RAFE for the Part 6A product in relation to the financial year.
benchmark return
means the benchmark return for the Part 6A product for the lookback period for the Part 6A product in respect of the financial year.
APRA's determination - subparagraph (2)(a)(ii)
9AB.10(4)
For the purposes of subparagraph (2)(a)(ii), APRA may make a determination, in writing, specifying:
(a)
a Part 6A product; and
(b)
the superannuation entity that offers the Part 6A product; and
(c)
one or more financial years.
9AB.10(5)
In making the determination, APRA must consider whether any other Part 6A products that are offered by:
(a)
the entity; or
(b)
an associated entity (within the meaning of the Corporations Act 2001) of the entity;
have failed to meet the requirement in subsection 60D(1) of the Act in relation to any financial year.
9AB.10(6)
APRA must give a notice of the determination to the trustee of the superannuation entity specified in the determination. The notice must:
(a)
be in writing; and
(b)
include a copy of the determination.
APRA's determination - paragraph (2)(b)
9AB.10(7)
For the purposes of paragraph (2)(b), APRA may make a determination, in writing, specifying:
(a)
a Part 6A product; and
(b)
the superannuation entity that offers the Part 6A product; and
(c)
a financial year; and
(d)
a day occurring:
(i)
after 15 August; and
(ii)
on or before 31 August;
in the next financial year.
9AB.10(8)
APRA must give a notice of the determination to the trustee of the superannuation entity specified in the determination. The notice must:
(a)
be in writing; and
(b)
include a copy of the determination.
Hybrid platform TDP
9AB.10(9)
Subregulation (10) applies if the Part 6A product mentioned in subregulation (1) is a hybrid platform TDP.
History
Reg 9AB.10(9) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 27, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.10(10)
In applying subregulation (2) in relation to the hybrid platform TDP:
(a)
work out 2 performance measures for the hybrid platform TDP, as follows:
(i)
assume that the hybrid platform TDP were 2 separate Part 6A products;
(ii)
assume that one of those separate products was a standard platform TDP, and had the characteristics of the hybrid platform TDP relating to it being offered through investment menus of the platform type;
(iii)
assume that the other of those separate products was a trustee-directed product that was not a platform TDP, and had the characteristics of the hybrid platform TDP relating to it being offered through investment menus of the generic type, the lifecycle option type, or both (as the case may be);
(iv)
work out the performance measures for the 2 separate Part 6A products in accordance with subregulation (3); and
(b)
treat subparagraph (2)(a)(i) as reading "both performance measures for the Part 6A product for the assessment year equal or exceed −0.005".
History
Reg 9AB.10(10) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 27, effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.10 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.11
MEANING OF ACTUAL RETURN - STANDARD PART 6A PRODUCTS
9AB.11(1)
This regulation applies to standard Part 6A products.
9AB.11(2)
The
actual return
, for a Part 6A product for a lookback period for the product in respect of a financial year, is the amount calculated using the following formula, rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more):
9AB.11_2_formula_new
where:
n
means the number of quarters in the lookback period, divided by 4.
NIR
(Repealed by FRLI No F2023L01063)
History
Definition of "NIR" repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 30, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
NIR
, in relation to a quarter, means the Part 6A product's net investment return in relation to the quarter.
return
, in relation to a quarter, means:
(a)
if paragraph (b) does not apply - the Part 6A product's net investment return in relation to the quarter for the Part 6A product's standard fees and costs arrangement in relation to the quarter; or
(b)
if it is not possible to identify the Part 6A product's net investment return in relation to the quarter from information available to APRA, but it is possible to identify the Part 6A product's gross investment return net of fees in relation to the quarter from information available to APRA - the Part 6A product's gross investment return net of fees in relation to the quarter for the Part 6A product's standard fees and costs arrangement in relation to the quarter.
History
Definition of "return" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 31, effective 4 August 2023. For transitional provision, see reg 14.36.
t
represents a quarter in a consecutive sequence of quarters, where if t=1, the quarter is the first quarter that starts in the lookback period.
History
Reg 9AB.11(2) amended by FRLI No F2023L01063, reg 4 and Sch 1 items 28 and 29, by substituting "rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more)" for "rounded to 4 decimal places (rounding up if the fifth decimal place is 5 or more)" and the formula, effective 4 August 2023. For transitional provision, see reg 14.36. The formula formerly read:
Trustee-directed products
9AB.11(3)
Subregulation (4) applies if:
(a)
the Part 6A product is a trustee-directed product; and
(b)
at the end of a quarter in the lookback period, there are no member assets supporting the Part 6A product that are referable to any of the investment pathways of the Part 6A product.
History
Reg 9AB.11(3) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 32, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.11(4)
Treat the
return
(as defined in subregulation (2)), in relation to the quarter, as zero.
History
Reg 9AB.11(4) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 32, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.11(5)
Subregulation (6) applies if:
(a)
the Part 6A product is a trustee-directed product that has 2 or more net investment returns or gross investment returns net of fees in relation to a quarter in the lookback period; and
(b)
subregulation (4) does not apply in relation to the quarter.
History
Reg 9AB.11(5) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 32, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.11(6)
For the purposes of subregulation (2), treat the return (as defined in subregulation (2)), in relation to the quarter, as being the amount worked out under subregulation (7).
History
Reg 9AB.11(6) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 32, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.11(7)
For the purposes of subregulation (6), work out the amount as follows:
(a)
first, work out a separate return (as defined in subregulation (2)) in relation to the quarter for each investment pathway of the Part 6A product, on the assumptions that:
(i)
references in that definition to net investment return and gross investment return net of fees were references to such amounts to the extent that they relate to each investment pathway of the Part 6A product; and
(ii)
references in that definition to the Part 6A product's standard fees and costs arrangement were references to each investment pathway's standard fees and costs arrangement;
(b)
next, disregard any return worked out in accordance with paragraph (a) for an investment pathway of the Part 6A product, if there are no member assets supporting the Part 6A product that are referable to the investment pathway;
(c)
next, identify the smallest of the returns worked out in accordance with paragraphs (a) and (b).
History
Reg 9AB.11(7) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 32, effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.11 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.12
MEANING OF ACTUAL RETURN - LIFECYCLE PART 6A PRODUCTS
9AB.12(1)
This regulation applies to lifecycle Part 6A products.
9AB.12(2)
The
actual return
, for a Part 6A product for a lookback period for the product in respect of a financial year, is the amount calculated using the following formula, rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more):
9AB.12_2_formula_new
where:
j
represents a lifestage of the Part 6A product, in a consecutive sequence of lifestages of the Part 6A product, where:
(a)
if j=1, the lifestage is the lifestage that applies to the youngest beneficiaries who hold the product; and
(b)
subject to paragraph (c), the sequence proceeds in ascending order of the ages of those beneficiaries; and
(c)
if there are 2 or more lifestages of the Part 6A product that apply to beneficiaries of the same age - the sequence proceeds in respect of those lifestages in the order specified by APRA in a determination under regulation 9AB.15.
J
means the number of lifestages of the Part 6A product.
lifestage weight
, in relation to a lifestage and a quarter, means the Part 6A product's lifestage weight in relation to the quarter and the lifestage.
n
means the number of quarters in the lookback period, divided by 4.
NIR
(Repealed by FRLI No F2023L01063)
History
Definition of "NIR" repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 35, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
NIR
, in relation to a quarter and a lifestage, means the Part 6A product's net investment return in relation to the quarter and the lifestage.
return
, in relation to a quarter and a lifestage, means:
(a)
if paragraph (b) does not apply - the Part 6A product's net investment return in relation to the quarter and the lifestage, for the Part 6A product's standard fees and costs arrangement in relation to the quarter; or
(b)
if it is not possible to identify the Part 6A product's net investment return in relation to the quarter and the lifestage from information available to APRA, but it is possible to identify the Part 6A product's gross investment return net of fees in relation to the quarter and the lifestage from information available to APRA - the Part 6A product's gross investment return net of fees in relation to the quarter and the lifestage, for the Part 6A product's standard fees and costs arrangement in relation to the quarter.
History
Definition of "return" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 36, effective 4 August 2023. For transitional provision, see reg 14.36.
t
represents a quarter in a consecutive sequence of quarters, where if t=1, the quarter is the first quarter that starts in the lookback period.
History
Reg 9AB.12(2) amended by FRLI No F2023L01063, reg 4 and Sch 1 items 33 and 34, by substituting "rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more)" for "rounded to 4 decimal places (rounding up if the fifth decimal place is 5 or more)" and the formula, effective 4 August 2023. For transitional provision, see reg 14.36. The formula formerly read:
Change of lifestages
9AB.12(3)
Subregulation (4) applies if:
(a)
the following circumstances exist:
(i)
a lifecycle Part 6A product has particular lifestages at the end of a quarter in a lookback period for the product in respect of a financial year;
(ii)
the product has different lifestages at the end of a later quarter in the lookback period; and
(b)
either or both of the following apply:
(i)
the Part 6A product and the quarters are in a class of Part 6A products and quarters specified in a determination under subregulation (4A);
(ii)
the Part 6A product and the quarters are specified in a determination under subregulation (5).
History
Reg 9AB.12(3) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 37, by substituting para (b), effective 4 August 2023. For transitional provision, see reg 14.36. Para (b) formerly read:
(b)
APRA makes a determination under subregulation (5) that specifies:
(i)
the Part 6A product; and
(ii)
the superannuation entity that offers the Part 6A product; and
(iii)
the quarter mentioned in subparagraph (a)(i) of this subregulation; and
(iv)
the quarter mentioned in subparagraph (a)(ii).
9AB.12(4)
Despite subregulation (2), the
actual return
, for the Part 6A product for the lookback period, is the amount calculated using the formula in subregulation (2), as modified in the way specified in the following determination:
(a)
if only subparagraph (3)(b)(i) applies - the determination mentioned in that subparagraph;
(b)
if only subparagraph (3)(b)(ii) applies - the determination mentioned in that subparagraph;
(c)
if both subparagraphs (3)(b)(i) and (ii) apply - the determination mentioned in subparagraph (3)(b)(i).
History
Reg 9AB.12(4) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 38, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.12(4) formerly read:
9AB.12(4)
Despite subregulation (2), the
actual return
, for the Part 6A product for the lookback period, is the amount calculated using the formula in subregulation (2), as modified in the way specified in the determination.
9AB.12(4A)
For the purposes of subparagraph (3)(b)(i), APRA may, by legislative instrument, make a determination that:
(a)
specifies classes of Part 6A products and quarters; and
(b)
specifies modifications of the formula in subregulation (2) that APRA considers are reasonably necessary to reflect the circumstances mentioned in paragraph (3)(a) in respect of the specified classes of Part 6A products and quarters.
[
CCH Note:
For the purposes of reg 9AB.12(4A), APRA has made Superannuation Technical Determination No. 1 of 2023 - Actual and benchmark return formulae modifications (F2023L01066), effective 8 August 2023 and applicable to an RSE licensee of a superannuation entity that offers a Part 6A product that is both a MySuper product and a lifecycle Part 6A product.]
History
Reg 9AB.12(4A) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 38, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.12(5)
For the purposes of subparagraph (3)(b)(ii), APRA may make a determination, in writing, that:
(a)
specifies:
(i)
a lifecycle Part 6A product; and
(ii)
the superannuation entity that offers the Part 6A product; and
(iii)
2 quarters; and
(b)
specifies modifications of the formula in subregulation (2) that APRA considers are reasonably necessary to reflect the circumstances mentioned in paragraph (3)(a) in respect of the specified Part 6A product and quarters.
History
Reg 9AB.12(5) amended by FRLI No F2023L01063, reg 4 and Sch 1 items 39 and 40, by substituting "subparagraph (3)(b)(ii)" for "paragraph (3)(b)" and inserting "in respect of the specified Part 6A product and quarters" in para (b), effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.12(6)
APRA must give a notice of a determination under subregulation (5) to the trustee of the superannuation entity specified in the determination. The notice must:
(a)
be in writing; and
(b)
include a copy of the determination.
History
Reg 9AB.12(6) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 41, by substituting "a determination under subregulation (5)" for "the determination", effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.12 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.13
MEANING OF BENCHMARK RETURN - STANDARD PART 6A PRODUCTS
9AB.13(1)
This regulation applies to standard Part 6A products.
9AB.13(2)
The
benchmark return
, for a Part 6A product for a lookback period for the product in respect of a financial year, is the amount calculated using the following formula, rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more):
where:
a
represents a covered asset class for the quarter, where the value of "a" corresponds to the number of the item of the table in regulation 9AB.17 relating to the quarter that identifies that covered asset class for the quarter.
Example: If a=2, then "a" represents the covered asset class identified in item 2 of the table in regulation 9AB.17 that relates to the quarter.
A
means the number of covered asset classes identified in the table in regulation 9AB.17 that relates to the quarter.
ART
, in relation to a covered asset class and a quarter, means the assumed rate of tax for the quarter for the covered asset class.
fee
, in relation to a covered asset class and a quarter, means the assumed annual fee for the quarter for the covered asset class.
index
, in relation to a covered asset class and a quarter, means the index of the covered asset class for the quarter.
History
Definition of "index" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 43, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
index
, in relation to a covered asset class and a quarter, means the amount calculated using the following formula, rounded to 4 decimal places (rounding up if the fifth decimal place is 5 or more):
| Value at the end of the quarter of the assumed index for the covered asset class for the quarter |
− |
1 |
| Value at the end of the previous quarter of the assumed index for the covered asset class for the quarter |
Note:
For the covered asset class for a quarter that is identified in item 16 of the table in regulation 9AB.17 (other/commodities asset class), see subregulations (6) and (7) of this regulation.
n
means the number of quarters in the lookback period, divided by 4.
SAA
, in relation to a covered asset class and a quarter, means the Part 6A product's strategic asset allocation in relation to the quarter to the covered asset class for the quarter.
History
Definition of "SAA" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 44, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
SAA
, in relation to a covered asset class and a quarter, has the meaning given by subregulation (3).
t
represents a quarter in a consecutive sequence of quarters, where if t=1, the quarter is the first quarter that starts in the lookback period.
History
Reg 9AB.13(2) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 42, by substituting "rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more)" for "rounded to 4 decimal places (rounding up if the fifth decimal place is 5 or more)", effective 4 August 2023. For transitional provision, see reg 14.36.
Standard Part 6A products that report gross investment return net of fees
9AB.13(3)
Subregulation (4) applies in relation to a Part 6A product and a quarter if:
(a)
it is not possible to identify the Part 6A product's net investment return in relation to the quarter from information available to APRA; but
(b)
it is possible to identify the Part 6A product's gross investment return net of fees in relation to the quarter from information available to APRA.
History
Reg 9AB.13(3) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 45, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.13(3) formerly read:
9AB.13(3)
For the purposes of subregulation (2),
SAA
, in relation to a covered asset class and a quarter, means:
(a)
unless paragraph (b) or (c) applies - the product's strategic asset allocation to the covered asset class in relation to the quarter (expressed as a fraction); or
(b)
unless paragraph (c) applies, if the product does not have a strategic asset allocation to the covered asset class in relation to the quarter - zero; or
(c)
if the quarter is before the first quarter (the
initial quarter
) in relation to which the trustee of the superannuation entity that offered the Part 6A product reported to APRA, in accordance with the applicable investment performance standard, a net return of the Part 6A product - the product's strategic asset allocation to the covered asset class in relation to the initial quarter (expressed as a fraction).
9AB.13(4)
For the purposes of subregulation (2):
(a)
treat
ART
, in relation to a covered asset class and the quarter, as being zero; and
(b)
in working out
index
in relation to a covered asset class identified in item 24, 25 or 26 of the table in regulation 9AB.17 and the quarter by applying subregulation 9AB.5A(7), treat
ART
in that subregulation as being zero.
History
Reg 9AB.13(4) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 45, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.13(4) formerly read:
9AB.13(4)
Subregulation (5) applies, for the purposes of the definition of
index
, in relation to a covered asset class and a quarter, in subregulation (2), if:
(a)
the covered asset class for the quarter is identified in item 10 or 11 of the table in regulation 9AB.17 relating to the quarter; and
(b)
the value at the end of the quarter of the assumed index for the covered asset class for the quarter is not publicly available earlier than 36 days after the end of the financial year.
Trustee-directed products
9AB.13(5)
Subregulation (6) applies in relation to a Part 6A product and a quarter if:
(a)
the Part 6A product is a trustee-directed product; and
(b)
at the end of the quarter, there are no member assets supporting the Part 6A product that are referable to any of the investment pathways of the Part 6A product.
History
Reg 9AB.13(5) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 45, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.13(5) formerly read:
9AB.13(5)
For those purposes:
(a)
treat the value at the end of the quarter of the assumed index for the covered asset class for the quarter as being the value at the end of the quarter of the assumed index for the covered asset class identified in item 6 of the table in regulation 9AB.17 for the quarter; and
(b)
treat the value at the end of the previous quarter of the assumed index for the covered asset class for the previous quarter as being the value at the end of the previous quarter of the assumed index for the covered asset class identified in item 6 of the table in regulation 9AB.17 for the previous quarter.
9AB.13(6)
For the purposes of subregulation (2), treat
fee
and
index
, in relation to all covered asset classes and the quarter, as being zero.
History
Reg 9AB.13(6) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 45, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.13(6) formerly read:
9AB.13(6)
Subregulation (7) applies in relation to the covered asset class for a quarter that is identified in item 16 of the table in regulation 9AB.17 relating to the quarter.
9AB.13(7)
(Repealed by FRLI No F2023L01063)
History
Reg 9AB.13(7) repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 45, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.13(7) formerly read:
9AB.13(7)
For the purposes of subregulation (2), treat
index
, in relation to that covered asset class and the quarter, as being the sum of the following:
(a)
25% of the index (worked out in accordance with subregulation (2)) in relation to the covered asset class identified in item 2 of the table in regulation 9AB.17 and the quarter;
(b)
25% of the index (worked out in accordance with subregulation (2)) in relation to the covered asset class identified in item 3 of that table and the quarter;
(c)
50% of the index (worked out in accordance with subregulation (2)) in relation to the covered asset class identified in item 13 of that table and the quarter.
History
Reg 9AB.13 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.14
MEANING OF BENCHMARK RETURN - LIFECYCLE PART 6A PRODUCTS
9AB.14(1)
This regulation applies to lifecycle Part 6A products.
9AB.14(2)
The
benchmark return
, for a Part 6A product for a lookback period for the product in respect of a financial year, is the amount calculated using the following formula, rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more):
where:
a
represents a covered asset class for the quarter, where the value of "a" corresponds to the number of the item of the table in regulation 9AB.17 relating to the quarter that identifies that covered asset class for the quarter.
Example: If a=2, then "a" represents the covered asset class identified in item 2 of the table in regulation 9AB.17 that relates to the quarter.
A
means the number of covered asset classes identified in the table in regulation 9AB.17 that relates to the quarter.
ART
, in relation to a covered asset class and a quarter, means the assumed rate of tax for the quarter for the covered asset class.
fee
, in relation to a covered asset class and a quarter, means the assumed annual fee for the quarter for the covered asset class.
index
, in relation to a covered asset class and a quarter, means the index of the covered asset class for the quarter.
History
Definition of "index" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 47, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
index
, in relation to a covered asset class and a quarter, means the amount calculated using the following formula, rounded to 4 decimal places (rounding up if the fifth decimal place is 5 or more):
| Value at the end of the quarter of the assumed index for the covered asset class for the quarter |
− |
1 |
| Value at the end of the previous quarter of the assumed index for the covered asset class for the quarter |
Note:
For the covered asset class for a quarter that is identified in item 16 of the table in regulation 9AB.17 (other/commodities asset class), see subregulations (6) and (7) of this regulation.
j
represents a lifestage of the Part 6A product, in a consecutive sequence of lifestages of the Part 6A product, where:
(a)
if j=1, the lifestage is the lifestage that applies to the youngest beneficiaries who hold the product; and
(b)
subject to paragraph (c), the sequence proceeds in ascending order of the ages of those beneficiaries; and
(c)
if there are 2 or more lifestages of the Part 6A product that apply to beneficiaries of the same age - the sequence proceeds in respect of those lifestages in the order specified by APRA in a determination under regulation 9AB.15.
J
means the number of lifestages of the Part 6A product.
lifestage weight
, in relation to a lifestage and a quarter, means the Part 6A product's lifestage weight in relation to the quarter and the lifestage.
n
means the number of quarters in the lookback period, divided by 4.
SAA
, in relation to a covered asset class, a lifestage and a quarter, means the Part 6A product's strategic asset allocation in relation to the lifestage and the quarter to the covered asset class for the quarter.
History
Definition of "SAA" substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 48, effective 4 August 2023. For transitional provision, see reg 14.36. The definition formerly read:
SAA
, in relation to a covered asset class, a lifestage and a quarter, has the meaning given by subregulation (3).
t
represents a quarter in a consecutive sequence of quarters, where if t=1, the quarter is the first quarter that starts in the lookback period.
History
Reg 9AB.14(2) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 46, by substituting "rounded to 10 decimal places (rounding up if the eleventh decimal place is 5 or more)" for "rounded to 4 decimal places (rounding up if the fifth decimal place is 5 or more)", effective 4 August 2023. For transitional provision, see reg 14.36.
Lifecycle Part 6A products that report gross investment return net of fees
9AB.14(3)
Subregulation (4) applies in relation to a lifestage and a quarter if:
(a)
it is not possible to identify the Part 6A product's net investment return in relation to the lifestage and the quarter from information available to APRA; but
(b)
it is possible to identify the Part 6A product's gross investment return net of fees in relation to the lifestage and the quarter from information available to APRA.
History
Reg 9AB.14(3) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 49, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.14(3) formerly read:
9AB.14(3)
For the purposes of subregulation (2),
SAA
, in relation to a covered asset class, a lifestage and a quarter, means:
(a)
unless paragraph (b) or (c) applies - the product's strategic asset allocation to the covered asset class, the lifestage and the quarter (expressed as a fraction); or
(b)
unless paragraph (c)applies, if the product does not have a strategic asset allocation to the covered asset class, the lifestage and the quarter - zero; or
(c)
if the quarter is before the first quarter (the
initial quarter
) in relation to which the trustee of the superannuation entity that offered the Part 6A product reported to APRA, in accordance with the applicable investment performance standard, a net return of the Part 6A product - the product's strategic asset allocation to the covered asset class, the lifestage and the initial quarter (expressed as a fraction).
9AB.14(4)
For the purposes of subregulation (2):
(a)
treat
ART
, in relation to a covered asset class and the quarter, as being zero; and
(b)
in working out
index
in relation to a covered asset class identified in item 24, 25 or 26 of the table in regulation 9AB.17 and the quarter by applying subregulation 9AB.5A(7), treat
ART
in that subregulation as being zero.
History
Reg 9AB.14(4) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 49, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.14(4) formerly read:
9AB.14(4)
Subregulation (5) applies, for the purposes of the definition of
index
, in relation to a covered asset class and a quarter, in subregulation (2), if:
(a)
the covered asset class for the quarter is identified in item 10 or 11 of the table in regulation 9AB.17 relating to the quarter; and
(b)
the value at the end of the quarter of the assumed index for the covered asset class for the quarter is not publicly available earlier than 36 days after the end of the financial year.
9AB.14(5)
(Repealed by FRLI No F2023L01063)
History
Reg 9AB.14(5) repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 49, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.14(5) formerly read:
9AB.14(5)
For those purposes:
(a)
treat the value at the end of the quarter of the assumed index for the covered asset class for the quarter as being the value at the end of the quarter of the assumed index for the covered asset class identified in item 6 of the table in regulation 9AB.17 for the quarter; and
(b)
treat the value at the end of the previous quarter of the assumed index for the covered asset class for the previous quarter as being the value at the end of the previous quarter of the assumed index for the covered asset class identified in item 6 of the table in regulation 9AB.17 for the previous quarter.
9AB.14(6)
(Repealed by FRLI No F2023L01063)
History
Reg 9AB.14(6) repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 49, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.14(6) formerly read:
9AB.14(6)
Subregulation (7) applies in relation to the covered asset class for a quarter that is identified in item 16 of the table in regulation 9AB.17 relating to the quarter.
9AB.14(7)
(Repealed by FRLI No F2023L01063)
History
Reg 9AB.14(7) repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 49, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.14(7) formerly read:
9AB.14(7)
For the purposes of subregulation (2), treat
index
, in relation to that covered asset class and the quarter, as being the sum of the following:
(a)
25% of the index (worked out in accordance with subregulation (2)) in relation to the covered asset class identified in item 2 of the table in regulation 9AB.17 and the quarter;
(b)
25% of the index (worked out in accordance with subregulation (2)) in relation to the covered asset class identified in item 3 of that table and the quarter;
(c)
50% of the index (worked out in accordance with subregulation (2)) in relation to the covered asset class identified in item 13 of that table and the quarter.
Change of lifestages
9AB.14(8)
Subregulation (9) applies if:
(a)
the following circumstances exist:
(i)
a lifecycle Part 6A product has particular lifestages at the end of a quarter in a lookback period for the product in respect of a financial year;
(ii)
the product has different lifestages at the end of a later quarter in the lookback period; and
(b)
either or both of the following apply:
(i)
the Part 6A product and the quarters are in a class of Part 6A products and quarters specified in a determination under subregulation (9A);
(ii)
the Part 6A product and the quarters are specified in a determination under subregulation (10).
History
Reg 9AB.14(8) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 50, by substituting para (b), effective 4 August 2023. For transitional provision, see reg 14.36. Para (b) formerly read:
(b)
APRA makes a determination under subregulation (10) that specifies:
(i)
the Part 6A product; and
(ii)
the superannuation entity that offers the Part 6A product; and
(iii)
the quarter mentioned in subparagraph(a)(i) of this subregulation; and
(iv)
the quarter mentioned in subparagraph (a)(ii).
9AB.14(9)
Despite subregulation (2), the
benchmark return
, for the Part 6A product for the lookback period for the product in respect of the year, is the amount calculated using the formula in subregulation (2), as modified in the way specified in the following determination:
(a)
if only subparagraph (8)(b)(i) applies - the determination mentioned in that subparagraph;
(b)
if only subparagraph (8)(b)(ii) applies - the determination mentioned in that subparagraph;
(c)
if both subparagraphs (8)(b)(i) and (ii) apply - the determination mentioned in subparagraph (8)(b)(i).
History
Reg 9AB.14(9) substituted by FRLI No F2023L01063, reg 4 and Sch 1 item 51, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.14(9) formerly read:
9AB.14(9)
Despite subregulation (2), the
benchmark return
, for the Part 6A product for the lookback period for the product in respect of the year, is the amount calculated using the formula in subregulation (2), as modified in the way specified in the determination.
9AB.14(9A)
For the purposes of subparagraph (8)(b)(i), APRA may, by legislative instrument, make a determination that:
(a)
specifies classes of Part 6A products and quarters; and
(b)
specifies modifications of the formula in subregulation (2) that APRA considers are reasonably necessary to reflect the circumstances mentioned in paragraph (8)(a) in respect of the specified classes of Part 6A products and quarters.
[
CCH Note:
For the purposes of reg 9AB.14(9A), APRA has made Superannuation Technical Determination No. 1 of 2023 - Actual and benchmark return formulae modifications (F2023L01066), effective 8 August 2023 and applicable to an RSE licensee of a superannuation entity that offers a Part 6A product that is both a MySuper product and a lifecycle Part 6A product.]
History
Reg 9AB.14(9A) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 51, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.14(10)
For the purposes of subparagraph (8)(b)(ii), APRA may make a determination, in writing, that:
(a)
specifies:
(i)
a lifecycle Part 6A product; and
(ii)
the superannuation entity that offers the Part 6A product; and
(iii)
2 quarters; and
(b)
specifies modifications of the formula in subregulation (2) that APRA considers are reasonably necessary to reflect the circumstances mentioned in paragraph (8)(a) in respect of the specified Part 6A product and quarters.
History
Reg 9AB.14(10) amended by FRLI No F2023L01063, reg 4 and Sch 1 items 52 and 53, by substituting "subparagraph (8)(b)(ii)" for "paragraph (8)(b)" and inserting "in respect of the specified Part 6A product and quarters" in para (b), effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.14(11)
APRA must give a notice of a determination under subregulation (10) to the trustee of the superannuation entity specified in the determination. The notice must:
(a)
be in writing; and
(b)
include a copy of the determination.
History
Reg 9AB.14(11) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 54, by substituting "a determination under subregulation (10)" for "the determination", effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.14 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.15
APRA'S DETERMINATION OF SEQUENCE OF LIFESTAGES
9AB.15(1)
For the purposes of paragraph (c) of the definition of
j
in subregulation 9AB.12(2) or 9AB.14(2), APRA may make a determination, in writing, that specifies:
(a)
a Part 6A product; and
(b)
the trustee of the superannuation entity that offers the Part 6A product; and
(c)
a sequence of lifestages of the Part 6A product that apply to beneficiaries of the same age.
9AB.15(2)
APRA must give a notice of the determination to the trustee of the superannuation entity specified in the determination. The notice must:
(a)
be in writing; and
(b)
include a copy of the determination.
History
Reg 9AB.15 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.16
MEANING OF BENCHMARK RAFE
9AB.16(1)
Work out the
benchmark RAFE
for a Part 6A product in relation to a financial year in accordance with the following subregulations.
9AB.16(2)
First:
(a)
if the Part 6A product is a MySuper product - identify all Part 6A products that exist at the end of the year that are MySuper products; or
(b)
if the Part 6A product is not a MySuper product and is a platform TDP - identify all Part 6A products that exist at the end of the year that are not MySuper products and are platform TDPs; or
(c)
if the Part 6A product is not a MySuper product and is not a platform TDP - identify all Part 6A products that exist at the end of the year that are not MySuper products and are not platform TDPs.
History
Reg 9AB.16(2) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 55, by substituting para (b) and (c) for para (b), effective 4 August 2023. For transitional provision, see reg 14.36. Para (b) formerly read:
(b)
otherwise - identify all Part 6A products that exist at the end of the year that are not MySuper products.
9AB.16(2A)
However, do not include a Part 6A product in the identification under subregulation (2) in relation to the year if the Part 6A product's initial quarter starts on a day during the financial year that is not 1 July.
History
Reg 9AB.16(2A) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 56, effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.16(3)
Next, construct a consecutive sequence of the representative administration fees and expenses for each of the Part 6A products identified under subregulation (2) in relation to the year, where the sequence:
(a)
starts with the lowest of those RAFEs; and
(b)
proceeds in ascending order of the amount of each of those RAFEs.
9AB.16(4)
Next, work out the result of the following formula:
P = 0.5 × (M + 1)
where:
M
is the number of Part 6A products identified under subregulation (2).
9AB.16(5)
If P is a whole number, the
benchmark RAFE
for the Part 6A product in relation to the year is the RAFE that occupies the place in the sequence mentioned in subregulation (3) corresponding to P.
Example: If P=5, then the benchmark RAFE is the fifth RAFE in that sequence.
9AB.16(6)
If P is not a whole number, determine the
benchmark RAFE
mentioned in subregulation (1) by using the following formula:
RAFEPR + [(RAFEPR + 1 − RAFEPR) × 0.5]
where:
PR
is P rounded down to the nearest whole number
RAFEPR
is the RAFE that occupies the place in the sequence mentioned in subregulation (3) corresponding to PR.
RAFEPR + 1
is the RAFE that occupies the place in the sequence mentioned in subregulation (3) corresponding to PR + 1.
9AB.16(7)
(Repealed by FRLI No F2023L01063)
History
Reg 9AB.16(7) repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 57, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.16(7) formerly read:
RAFE for lifecycle Part 6A products
9AB.16(7)
If a Part 6A product is in the class of Part 6A products specified in relation to a financial year under subregulation 9AB.9(3) (lifecycle Part 6A products), treat a reference in subregulations (1) to (6) of this regulation to the RAFE for the Part 6A product in relation to the year as being a reference to the largest of the RAFEs for the product in relation to the year and each lifestage of the product.
9AB.16(8)
(Repealed by FRLI No F2023L01063)
History
Reg 9AB.16(8) repealed by FRLI No F2023L01063, reg 4 and Sch 1 item 57, effective 4 August 2023. For transitional provision, see reg 14.36. Reg 9AB.16(8) formerly read:
RAFE for lifecycle Part 6A products
9AB.16(8)
However, if:
(a)
the lifecycle Part 6A product has particular lifestages at the start of the financial year; and
(b)
at one or more times during the year, the product starts to have different lifestages;
treat a reference in subregulations (1) to (6) of this regulation to the RAFE for the Part 6A product in relation to the year as being a reference to the amount worked out as follows:
(c)
first, divide the year into periods on the following basis:
(i)
the first period starts at the start of the year;
(ii)
a new period starts each time the product starts to have different lifestages;
(iii)
the last period ends at the end of the year;
Note:
Each period, other than the last period, ends immediately before the first time after the start of that period at which there is a change of the lifestages.
(d)
then, for each period identified under paragraph (c), work out what is the largest of the RAFEs for the product in relation to the period and each lifestage that the product has during the period;
(e)
the RAFE for the Part 6A product in relation to the year is the sum of the RAFEs worked out under paragraph (d).
History
Reg 9AB.16 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.17
MEANING OF COVERED ASSET CLASS, ASSUMED INDEX, ASSUMED ANNUAL FEE AND ASSUMED RATE OF TAX
9AB.17(1)
Subregulations (2) to (5) define the following:
(a)
a
covered asset class
for a quarter starting on or after 1 July 2014;
(b)
the
assumed index
for a covered asset class for such a quarter;
(c)
the
assumed annual fee
for a covered asset class for such a quarter;
(d)
the
assumed rate of tax
for a covered asset class for such a quarter.
9AB.17(2)
A
covered asset class
for a quarter mentioned in paragraph (1)(a) is a class of assets identified in an item of the table in subregulation (7) by its description.
9AB.17(3)
For the purposes of this regulation, in determining a covered asset class for a quarter, treat the term
Alternatives
as having the same meaning as that term has in the asset allocation standard that applies in relation to the quarter.
History
Reg 9AB.17(3) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 58, by substituting "
Alternatives
" for "
Other/Commodities
", effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.17(4)
The
assumed index
for a quarter mentioned in paragraph (1)(a) for a covered asset class for the quarter is the assumed index identified in the item of the table in subregulation (7) that identifies the covered asset class.
9AB.17(5)
The
assumed annual fee
for a quarter mentioned in paragraph (1)(a) for a covered asset class for the quarter is the assumed annual fee identified in the item of the table in subregulation (7) that identifies the covered asset class.
9AB.17(6)
The
assumed rate of tax
for a quarter mentioned in paragraph (1)(a) for a covered asset class for the quarter is the assumed rate of tax identified in the item of the table in subregulation (7) that identifies the covered asset class.
9AB.17(7)
The table is as follows:
|
Covered asset classes, assumed indices, assumed annual fees and assumed tax rates for quarters starting on or after 1 July 2014
|
|
Item
|
Description
|
Assumed index
|
Assumed annual fee
|
Assumed annual rate of tax
|
| 1 |
Australian Equity |
ASA52
S&P/ASX 300 Total Return Index |
0.05% |
0.00% |
| 2 |
International Equity (hedged; international economy type not specified or not applicable) |
DE725341
MSCI All Country World Ex-Australia Equities Index with Special Tax (100% hedged to AUD) |
0.11% |
14.00% |
| 3 |
International Equity (hedged; emerging markets) |
DA725342
MSCI Emerging Markets with Special Tax (100% hedged to AUD) |
0.16% |
14.00% |
| 4 |
International Equity (hedged; developed markets) |
DA750700
MSCI World ex Australia with Special Tax (100% hedged to AUD) |
0.10% |
14.00% |
| 5 |
International Equity (unhedged; international economy type not specified or not applicable) |
DN714533
MSCI All Country World Ex-Australia Equities Index with Special Tax (unhedged in AUD) |
0.09% |
14.00% |
| 6 |
International Equity (unhedged; emerging markets) |
NA714531
MSCI Emerging Markets with Special Tax (unhedged in AUD) |
0.14% |
14.00% |
| 7 |
International Equity (unhedged; developed markets) |
NA714532
MSCI World ex Australia with Special Tax (unhedged in AUD) |
0.08% |
14.00% |
| 8 |
Australian Listed Property |
ASA6PROP
S&P/ASX 300 A-REIT Total Return Index |
0.12% |
14.00% |
| 9 |
International Listed Property |
RAHRSAH
FTSE EPRA Nareit Developed ex Aus Rental 100% Hedged to AUD Net Tax (Super) Index |
0.22% |
14.00% |
| 10 |
Australian Listed Infrastructure |
FDCICSAH
FTSE Developed Core Infrastructure 50/50 100% Hedged to AUD Net Tax (Super) Index |
0.26% |
14.00% |
| 11 |
International Listed Infrastructure |
FDCICSAH
FTSE Developed Core Infrastructure 50/50 100% Hedged to AUD Net Tax (Super) Index |
0.26% |
14.00% |
| 12 |
Australian Unlisted Property |
MSCI/Mercer Australia Core Wholesale Monthly Property Fund Index - NAV-Weighted Post-Fee Total Return (All Funds) |
0% |
14.00% |
| 13 |
International Unlisted Property |
MSCI Global (Excl. Pan-Europe and Pan-Asia Funds) Quarterly Property Fund Index (Unfrozen) (Net Total Return; AUD fixed) |
0% |
14.00% |
| 14 |
Australian Unlisted Infrastructure |
MSCI Australia Quarterly Private Infrastructure Fund Index (Unfrozen) - 50th Percentile Post-Fee Total Return (All Funds) |
0% |
14.00% |
| 15 |
International Unlisted Infrastructure |
MSCI Australia Quarterly Private Infrastructure Fund Index (Unfrozen) - 50th Percentile Post-Fee Total Return (All Funds) |
0% |
14.00% |
| 16 |
Australian Fixed Income |
BACM0
Bloomberg Ausbond Composite 0+ Yr Index |
0.10% |
15.00% |
| 17 |
Australian Fixed Income Excluding Credit |
BAGV0
Bloomberg Ausbond Govt 0+ Yr Index |
0.08% |
15.00% |
| 18 |
Australian Credit |
BACR0
Bloomberg Ausbond Credit 0+ Yr Index |
0.15% |
15.00% |
| 19 |
International Fixed Income |
LEGATRAH
Bloomberg Global Aggregate Index (hedged AUD) |
0.10% |
15.00% |
| 20 |
International Fixed Income Excluding Credit |
BTSYTRAH
Bloomberg Global Treasury Index (hedged AUD) |
0.08% |
15.00% |
| 21 |
International Credit |
LGCPTRAH
Bloomberg Global Aggregate Corporate Index (hedged AUD) |
0.15% |
15.00% |
| 22 |
Australian Cash |
BAUBIL
Bloomberg Ausbond Bank Bill Index |
0.04% |
15.00% |
| 23 |
International Cash |
BAUBIL
Bloomberg Ausbond Bank Bill Index |
0.04% |
15.00% |
| 24 |
Alternatives |
|
0% |
0% |
| 25 |
Defensive Alternatives |
|
0% |
0% |
| 26 |
Growth Alternatives |
|
0% |
0% |
History
Reg 9AB.17(7) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 59, by substituting the table, effective 4 August 2023. For transitional provision, see reg 14.36. The table formerly read:
|
Covered asset classes, assumed indices, assumed annual fees and assumed tax rates for quarters starting on or after 1 July 2014
|
|
Item
|
Description
|
Assumed index
|
Assumed annual fee
|
Assumed annual rate of tax
|
| 1 |
Australian Equity |
ASA52
S&P/ASX 300 Total Return Index |
0.05% |
0.00% |
| 2 |
International Equity (hedged) |
DE725341
MSCI All Country World Ex-Australia Equities Index with Special Tax (100% hedged to AUD) |
0.11% |
14.00% |
| 3 |
International Equity (unhedged) |
DN714533
MSCI All Country World Ex-Australia Equities Index with Special Tax (unhedged in AUD) |
0.09% |
14.00% |
| 4 |
Australian Listed Property |
ASA6PROP
S&P/ASX 300 A-REIT Total Return Index |
0.12% |
14.00% |
| 5 |
International Listed Property |
RAHRSAH
FTSE EPRA Nareit Developed ex Aus Rental 100% Hedged to AUD Net Tax (Super) Index |
0.22% |
14.00% |
| 6 |
Australian Listed Infrastructure |
FDCIISAH
FTSE Developed Core Infrastructure 100% Hedged to AUD Net Tax (Super) Index |
0.26% |
14.00% |
| 7 |
International Listed Infrastructure |
FDCIISAH
FTSE Developed Core Infrastructure 100% Hedged to AUD Net Tax (Super) Index |
0.26% |
14.00% |
| 8 |
Australian Unlisted Property |
MSCI/Mercer Australia Core Wholesale Monthly Property Fund Index - NAV-Weighted Post-Fee Total Return (All Funds) |
0% |
14.00% |
| 9 |
International Unlisted Property |
MSCI/Mercer Australia Core Wholesale Monthly Property Fund Index - NAV-Weighted Post-Fee Total Return (All Funds) |
0% |
14.00% |
| 10 |
Australian Unlisted Infrastructure |
MSCI Australia QuarterlyPrivate Infrastructure Fund Index (Unfrozen) - NAV-Weighted Post-Fee Total Return (All Funds) |
0% |
14.00% |
| 11 |
International Unlisted Infrastructure |
MSCI Australia Quarterly Private Infrastructure Fund Index (Unfrozen) - Nav-Weighted Post-Fee Total Return (All Funds) |
0% |
14.00% |
| 12 |
Australian Fixed Interest |
BACM0
Bloomberg Ausbond Composite 0+ Yr Index |
0.10% |
15.00% |
| 13 |
International Fixed Interest |
LEGATRAH
Bloomberg Barclays Global Aggregate Index (hedged to AUD) |
0.10% |
15.00% |
| 14 |
Australian Cash |
BAUBIL
Bloomberg Ausbond Bank Bill Index |
0.04% |
15.00% |
| 15 |
International Cash |
BAUBIL
Bloomberg Ausbond Bank Bill Index |
0.04% |
15.00% |
| 16 |
Other/Commodities |
|
0.10% |
14.50% |
Reg 9AB.17 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.18
APRA'S DETERMINATION OF ALTERNATIVE ASSUMPTIONS - PARAGRAPHS 60D(7)(b) AND (c) OF ACT
APRA's determination of alternative assumptions
9AB.18(1)
For the purposes of paragraph 60D(7)(b) of the Act, APRA may, by legislative instrument, determine a specified alternative assumption in relation to a specified quarter covered by the table in regulation 9AB.17 that replaces one of the following assumptions in relation to that quarter:
(a)
an assumed index identified in an item of that table;
(b)
an assumed annual fee identified in an item of that table;
(c)
an assumed annual rate of tax identified in an item of that table.
9AB.18(2)
To avoid doubt, the determination may:
(a)
specify an alternative assumption in relation to more than one specified quarter; or
(b)
specify more than one alternative assumptions, each of which replaces one particular assumption mentioned in paragraph (1)(a), (b) or (c), in relation to a specified quarter; or
(c)
specify more than one alternative assumption, each of which replaces one particular assumption mentioned in paragraph (1)(a), (b) or (c), in relation to more than one specified quarter.
Specified conditions for APRA's determination of alternative assumptions
9AB.18(3)
For the purposes of paragraph 60D(7)(c) of the Act, subregulations (4), (5) and (6) specify conditions to be met before APRA can make a determination under subregulation (1).
9AB.18(4)
Before making a determination under subregulation (1), APRA must consult with the Treasurer.
9AB.18(5)
Before making a determination under subregulation (1) specifying an alternative assumption that replaces an assumption mentioned in paragraph (1)(a) (assumed index) in relation to a specified quarter, APRA must be reasonably satisfied that:
(a)
the relevant assumed index identified in an item of the table in regulation 9AB.17 does or did not exist in relation that quarter; and
(b)
the specified alternative assumption is substantially analogous to the relevant assumed index.
9AB.18(6)
Before making a determination under subregulation (1) specifying an alternative assumption that replaces an assumption mentioned in paragraph (1)(b) or (c) (assumed annual fee or assumed annual rate of tax) in relation to a specified quarter, APRA must be reasonably satisfied that, as a result of material changes in the investment environment, the assumed annual fee or assumed rate of tax identified in an item of the table in regulation 9AB.17 is no longer suitable in relation to that quarter.
History
Reg 9AB.18 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.19
REQUIREMENTS FOR NOTIFICATION OF FAIL ASSESSMENT - SUBSECTION 60E(6) OF ACT
9AB.19(1)
For the purposes of subsection 60E(6) of the Act, this regulation specifies:
(a)
forms in which a notice mentioned in subsection 60E(2) of the Act must be; and
(b)
kinds of information that must be contained in such a notice.
9AB.19(2)
The information set out in Schedule 2A is specified as a kind of information
9AB.19(3)
If the notice includes an electronic communication as mentioned in subparagraph 60E(5)(a)(ii) of the Act:
(a)
the text "Important notice about your super product's performance" is specified as a kind of information; and
(b)
inclusion of that text in the subject line for the electronic communication is specified as a form.
History
Reg 9AB.19 insertedby FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.20
REQUIREMENTS FOR REOPENING DETERMINATION - SUBSECTION 60F(4) OF ACT
9AB.20(1)
For the purposes of subsection 60F(4) of the Act, this regulation specifies a requirement in relation to a Part 6A product and an entity.
Note:
Subsections 60F(3) and (4) of the Act provide that if APRA is satisfied that this requirement is met, it may make a determination that has the effect that each trustee of the entity is released from the obligation in subsection 60F(2) of the Act (to ensure that there are no new beneficiaries for the Part 6A product).
9AB.20(2)
The requirement is that the performance measure for the Part 6A product for the most recently ended financial year equals or exceeds −0.005.
History
Reg 9AB.20 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
Division 9AB.3 - Comparison rankings
History
Div 9AB.3 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.21
SPECIFIED FORMULA AS BASIS FOR RANKING PART 6A PRODUCTS - PERFORMANCE ASSESSMENT MET
9AB.21(1)
This regulation applies in relation to a Part 6A product for which the requirement in subsection 60D(1) of the Act is met in relation to a financial year.
9AB.21(2)
For the purposes of paragraph 60J(3)(a) of the Act:
(a)
this paragraph specifies the formula set out in regulation 9AB.23 (net return ranking formula) as a basis for ranking Part 6A products in relation to the financial year; and
(b)
this paragraph specifies the formula set out in regulation 9AB.24 (fee ranking formula) as a basis for ranking that Part 6A products in relation to:
(i)
a beneficiary who holds the Part 6A product; and
(ii)
a year (the
relevant year
) that is the financial year, or the year that is the period of 12 months ending on 30 September, 31 December or 31 March in the next financial year.
History
Reg 9AB.21 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.22
SPECIFIED FORMULA AS BASIS FOR RANKING PART 6A PRODUCTS - PERFORMANCE ASSESSMENT
NOT
MET
9AB.22(1)
This regulation applies in relation to a Part 6A product for which the requirement in subsection 60D(1) of the Act is not met in relation to a financial year.
9AB.22(2)
For the purposes of paragraph 60J(3)(a) of the Act:
(a)
this paragraph specifies the formula set out in regulation 9AB.23 (net return ranking formula) as a basis for ranking Part 6A products in relation to the financial year; and
(b)
this paragraph specifies the formula set out in regulation 9AB.24 (fee ranking formula) as a basis for ranking Part 6A products in relation to:
(i)
a beneficiary who holds the Part 6A product; and
(ii)
a year (the
relevant year
) that is the financial year, or the year that is the period of 12 months ending on 30 September, 31 December or 31 March in the next financial year.
History
Reg 9AB.22 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
REGULATION 9AB.23
9AB.23
NET RETURN RANKING FORMULA
For the purposes of paragraphs 9AB.21(2)(a) and 9AB.22(2)(a), the formula is:
where:
n
means the number of whole quarters in the test period, divided by 4.
NR
, in relation to a quarter, means the Part 6A product's net return in relation to the quarter.
t
represents a quarter in a consecutive sequence of quarters, where if t=1, the quarter is the first quarter that starts in the test period.
test period
mean the period that:
(a)
starts at a time that:
(i)
is no earlier than 10 years before the start of the financial year; and
(ii)
is the start of a quarter in an earlier financial year; and
(b)
ends at the end of a quarter in the financial year.
History
Definition of "test period" amended by FRLI No F2023L01063, reg 4 and Sch 1 item 60, by substituting "10" for "8" in para (a)(i), effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.23 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.24
FEE RANKING FORMULA
9AB.24(1)
For the purposes of paragraphs 9AB.21(2)(b) and 9AB.22(2)(b), the formula is:
| Applicable investment fee |
+ |
Applicable administration fee |
+ |
Applicable cost amount |
where:
applicable administration fee
has the meaning given by subregulation (2).
applicable cost amount
means:
(a)
where it is possible to identify the Part 6A product's applicable transaction costs in relation to the relevant year from information available to APRA - means the applicable transaction costs; or
(b)
otherwise - means the applicable indirect cost ratio.
History
Definition of "applicable cost amount" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 62, effective 4 August 2023. For transitional provision, see reg 14.36.
applicable indirect cost ratio
means the product of the following:
(a)
the relevant beneficiary's account balance in respect of the Part 6A product;
(b)
the Part 6A product's indirect cost ratio in relation to the relevant year.
applicable investment fee
has the meaning given by subregulation (3).
applicable transaction costs
has the meaning given by subregulation (4).
History
Definition of "applicable transaction costs" inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 62, effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.24(1) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 61, by substituting the formula, effective 4 August 2023. For transitional provision, see reg 14.36. The formula formerly read:
| Applicable investment fee |
+ |
Applicable administration fee |
+ |
Applicable indirect cost ratio |
9AB.24(2)
For the purposes of subregulation (1), work out the
applicable administration fee
as follows:
(a)
first, work out the product of the following:
(i)
an account balance in respect of the Part 6A product;
(ii)
the Part 6A product's administration fee percentage in relation to the relevant year;
(b)
work out the sum of the following:
(i)
the result of paragraph (a);
(ii)
the Part 6A product's administration fee flat amount in relation to the relevant year;
(c)
if the Part 6A product does not have an administration fee cap in relation to the relevant year, the
applicable administration fee
is the result of paragraph (b);
(d)
if the Part 6A product has an administration fee cap in relation to the relevant year, the
applicable administration fee
is the lesser of the following:
(i)
the result of paragraph (b);
(ii)
that administration fee cap.
9AB.24(3)
For the purposes of subregulation (1), work out the
applicable investment fee
as follows:
(a)
first, work out the product of the following:
(i)
an account balance in respect of the Part 6A product;
(ii)
the Part 6A product's investment fee percentage in relation to the relevant year;
(b)
work out the sum of the following:
(i)
the result of paragraph (a);
(ii)
the Part 6A product's investment fee flat amount in relation to the relevant year;
(c)
if the Part 6A product does not have an investment fee cap in relation to the relevant year, the
applicable investment fee
is the result of paragraph (b);
(d)
if the Part 6A product has an investment fee cap in relation to the relevant year, the
applicable investment fee
is the lesser of the following:
(i)
the result of paragraph (b);
(ii)
that investment fee cap.
History
Reg 9AB.24(3) amended by FRLI No F2023L01063, reg 4 and Sch 1 item 63, by inserting "the" in para (d)(i), effective 4 August 2023. For transitional provision, see reg 14.36.
9AB.24(4)
For the purposes of subregulation (1), work out the
applicable transaction costs
as follows:
(a)
first, work out the product of the following:
(i)
an account balance in respect of the Part 6A product;
(ii)
the Part 6A product's transaction costs percentage in relation to the relevant year;
(b)
work out the sum of the following:
(i)
the result of paragraph (a);
(ii)
the Part 6A product's transaction costs flat amount in relation to the relevant year;
(c)
if the Part 6A product does not have a transaction costs cap in relation to the relevant year, the
applicable transaction costs
is the result of paragraph (b);
(d)
if the Part 6A product has a transaction costs cap in relation to the relevant year, the
applicable transaction costs
is the lesser of the following:
(i)
the result of paragraph (b);
(ii)
that transaction costs cap.
History
Reg 9AB.24(4) inserted by FRLI No F2023L01063, reg 4 and Sch 1 item 64, effective 4 August 2023. For transitional provision, see reg 14.36.
History
Reg 9AB.24 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see reg 14.28.
REGULATION 9AB.25
SPECIFIED METHODS FOR PART 6A RANKING PRODUCTS - PARAGRAPH 60J(3)(b) OF ACT
9AB.25(1)
For the purposes of paragraph 60J(3)(b) of the Act, the following subregulations specify methods for ranking Part 6A products according to the formulas specified in regulations 9AB.21 and 9AB.22.
9AB.25(2)
This subregulation specifies the method of ranking Part 6A products from:
(a)
the highest result of applying the formula set out in regulation 9AB.23 (net return ranking formula) in respect of a Part 6A product in respect of a financial year;
to:
(b)
the lowest result of applying that formula in respect of a Part 6A product in respect of the financial year.
9AB.25(3)
This subregulation specifies the method of ranking Part 6A products from:
(a)
the lowest result of applying the formula set out in regulation 9AB.24 (fee ranking formula) in respect of a Part 6A product in respect of a financial year;
to:
(b)
the highest result of applying that formula in respect of a Part 6A product in respect of the financial year.
History
Reg 9AB.25 inserted by FRLI No F2021L01077, reg 4 and Sch 1 item 4, effective 6 August 2021. For transitional provision, see s 14.28.
PART 9AC - DUTIES OF TRUSTEES AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES
History
Pt 9AC inserted by FRLI No F2024L01610, reg 4 and Sch 1 item 30, effective 9 January 2025.
REGULATION 9AC.01
9AC.01
FUND INFORMATION
For the purposes of subsection 106(1A) of the Act,
fund information
means fund information required to be provided under regulation 7.9.32 of the Corporations Regulations 2001.
History
Reg 9AC.01 inserted by FRLI No F2024L01610, reg 4 and Sch 1 item 30, effective 9 January 2025.
PART 9A - APPROVED SMSF AUDITORS
History
Pt 9A inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
REGULATION 9A.01
QUALIFICATIONS
9A.01(1)
For subparagraph 128B(1)(a)(i) of the Act, each of the following subregulations sets out a qualification.
9A.01(2)
A degree, diploma or certificate in accounting of not less than 3 years, which includes a course in audit, from either of the following bodies (a
relevant body
):
(a)
a university mentioned in Part 1 of the table in regulation 9.2.02 of the Corporations Regulations 2001;
(b)
the institution mentioned in Part 2 of the table in regulation 9.2.02 of the Corporations Regulations 2001.
9A.01(3)
Both:
(a)
a degree, diploma or certificate in accounting of not less than 3 years, which does not include a course in audit, from a relevant body; and
(b)
satisfactory completion of a course in audit (a
relevant course
) mentioned in regulation 9A.02.
9A.01(4)
Both:
(a)
a degree, diploma or certificate in accounting of not less than 3 years, which does not include a course in audit, from a relevant body; and
(b)
satisfactory completion of the self managed superannuation fund specialist auditor program conducted by the SMSF Professionals' Association of Australia Limited.
9A.01(5)
A qualification or combination of qualifications which the Regulator regards as equivalent to the degree, diploma or certificate mentioned in subregulation (2), (3) or (4).
Note:
The applicant need only have a qualification mentioned in subregulation 9A.01(2), (3), (4) or (5).
History
Reg 9A.01 inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
REGULATION 9A.02
9A.02
RELEVANT COURSES
For paragraph 9A.01(3)(b), the relevant courses are:
(a)
the following courses conducted by the Institute of Chartered Accountants in Australia:
(i)
Audit and Assurance in the CA Program;
(ii)
Financial Reporting and Assurance in the CA Program;
(iii)
Accounting 2 in the Professional Year Program;
(iv)
Audit and EDP Module in the Professional Year Program;
(v)
an audit module in the Professional Year Program conducted before 1986 that is equivalent to a course mentioned in subparagraph (i), (ii), (iii) or (iv); and
(b)
the following courses in the CPA Program conducted by CPA Australia:
(i)
Assurance Services and Auditing;
(ii)
Advanced Audit and Assurance; and
(c)
the following courses conducted by, or on behalf of, the Institute of Public Accountants:
(i)
Issues in Auditing and Professional Practice in the Graduate Certificate in Professional Accounting, offered by the University of New England in conjunction with the Institute of Public Accountants;
(ii)
Issues in Auditing and Professional Practice in the Degree of Master of Commerce (Professional Accounting), offered by the University of New England in conjunction with the Institute of Public Accountants.
History
Reg 9A.02 inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
REGULATION 9A.03
9A.03
PRACTICAL EXPERIENCE
For subparagraph 128B(1)(a)(ii) of the Act, each of the following is practical experience:
(a)
at least 300 hours of work auditing self managed superannuation funds under the direction of an approved SMSF auditor in the 3 years immediately before applying to be an approved SMSF auditor;
(b)
practical experience that the Regulator regards as equivalent to the practical experience mentioned in paragraph (a).
Note:
The applicant need only have the practical experience mentioned in paragraph 9A.03(a) or (b).
History
Reg 9A.03 inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
REGULATION 9A.04
CONTINUING PROFESSIONAL DEVELOPMENT REQUIREMENTS
9A.04(1)
For paragraph 128F(a) of the Act, the requirements in this regulation form the continuing professional development requirement.
9A.04(2)
The approved SMSF auditor must undertake at least 120 hours of continuing professional development every 3 years.
9A.04(3)
The development must:
(a)
include 30 hours of development about superannuation at least 8 hours of which is development about auditing of self managed superannuation funds; and
(b)
be development that could reasonably be expected to enhance an approved SMSF auditor's technical skills or professional service delivery.
9A.04(4)
The approved SMSF auditor must keep a written record of the development undertaken by the approved SMSF auditor for at least 3 years after the end of the financial year in which the development occurred.
History
Reg 9A.04 inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
REGULATION 9A.05
PROFESSIONAL INDEMNITY REQUIREMENTS
9A.05(1)
For paragraph 128F(b) of the Act, each of the following subregulations sets out a level of professional indemnity insurance.
9A.05(2)
The level that is set under a limitation of liability scheme provided by a professional organisation mentioned in Schedule 1AAA.
9A.05(3)
The level that:
(a)
is adequate to ensure that the amount of coverage in relation to a single claim or in aggregate is at least $500,000; and
(b)
is adequate because other terms of the policy will indemnify the auditor against civil liability that may arise from an act, error or omission in connection with audits of self managed superannuation funds.
Note:
The applicant need only have the level of professional indemnity insurance mentioned in subregulation 9A.05(2) or (3).
History
Reg 9A.05 inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
REGULATION 9A.06
9A.06
AUDITOR INDEPENDENCE REQUIREMENTS
For paragraph 128F(d) of the Act, the auditor independence requirements produced by the Accounting Professional and Ethical Standards Board Limited and set out in the APES 110 Code of Ethics for Professional Accountants (including Independence Standards) are prescribed for all approved SMSF auditors.
Note:
At the commencement of this regulation, a copy of the APES 110 Code of Ethics for Professional Accountants (including Independence Standards) was available at www.apesb.org.au.
History
Reg 9A.06 amended by FRLI No F2020L01610, reg 4 and Sch 1 items 67 and 68, by inserting "(including Independence Standards)", effective 15 December 2020.
Reg 9A.06 inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
REGULATION 9A.07
9A.07
WHEN FEES MUST BE PAID
For subsection 128L(3) of the Act, the table sets out when fees imposed under the Superannuation Auditor Registration Imposition Act 2012 are due and payable.
|
Item
|
A fee payable for ...
|
is due and payable ...
|
| 1 |
applying for registration as an approved SMSF auditor |
when the application is submitted |
| 1A |
applying for conditions imposed on registration as an approved SMSF auditor to be varied or revoked under section 128D of the Act |
when the application is submitted |
| 1B |
applying for registration as an approved SMSF auditor to be cancelled under section 128E of the Act |
when the application is submitted |
| 2 |
undertaking a competency examination in accordance with section 128C of the Act |
when applying to sit the examination |
| 3 |
giving to the Regulator a statement under section 128G of the Act |
when the statement is submitted |
| 4 |
giving to the Regulator a statement under section 128G of the Act within 1 month after it fell due (in addition to the fee payable because of item 3) |
when the statement is submitted |
| 5 |
giving to the Regulator a statement under section 128G of the Act more than 1 month after it fell due (in addition to the fee payable because of item 3) |
when the statement is submitted |
| 6 |
giving to the Regulator particulars under section 128H of the Act within 1 month after they fell due |
when the particulars are submitted |
| 7 |
giving to the Regulator particulars under section 128H of the Act more than 1 month after they fell due |
when the particulars are submitted |
| 8 |
inspecting or searching a register that the Regulator keeps under Division 1A of the Act |
when the request is made |
History
Reg 9A.07 amended by FRLI No F2018L00965, reg 4 and Sch 1 item 43, by inserting table items 1A and 1B, effective 4 July 2018.
Reg 9A.07 inserted by SLI No 330 of 2012, reg 3 and Sch 1 item 3, effective 31 January 2013.
PART 10 - ELIGIBLE ROLLOVER FUNDS
History
Pt 10 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 101, effective 1 July 2013. Pt 10 formerly read:
PART 10 - ELIGIBLE ROLLOVER FUNDS
Division 10.1 - Introductory
REGULATION 10.01 DEFINITION OF ELIGIBLE ROLLOVER FUND (ACT, S 242)
10.01(1)
For the purposes of the definition of
eligible rollover fund
in section 242 of the Act, a fund is an eligible rollover fund if:
(a)
it has the following characteristics:
(i)
the fund is a regulated superannuation fund or an approved deposit fund;
(ii)
the trustee of the fund has given to APRA a notice in the approved form stating that it is an eligible rollover fund;
(iii)
the fund has not ceased to be an eligible rollover fund; or
(b)
the fund:
(i)
was an eligible rollover fund immediately before 1 July 1995; and
(ii)
has not ceased to be an eligible rollover fund.
History
Reg 10.01(1) amended by SR No 193 of 1998.
10.01(2)
A fund ceases to be an eligible rollover fund if the trustee of the fund gives notice of wishing to do so to APRA in the approved form.
History
Reg 10.01(2) amended by SR No 193 of 1998.
10.01(3)
A notice under subparagraph (1)(a)(ii) or subregulation (2) has effect at the time when APRA acknowledges having received it.
History
Reg 10.01(3) amended by SR No 193 of 1998.
Reg 10.01 substituted by SR No 159 of 1995.
Division 10.2 - Prescribed matters
SECTION 10.02
REGULATION 10.02 INTERPRETATION
10.02
Expressions used in this Division that are defined for the purposes of Part 24 of the Act have the same meaning in this Division as in that Part.
History
Reg 10.02 inserted by SR No 159 of 1995; omitted by SR No 64 of 1995.
REGULATION 10.03 PAYMENT OF BENEFIT TO ELIGIBLE ROLLOVER FUND
10.03(1)
For the purposes of paragraph 243(1)(b) of the Act, 1 July 1995 is the date from which section 243 of the Act applies to a person.
10.03(2)
For paragraph 243(1)(c) of the Act, the condition is that the beneficiary is not a non-member spouse whose entitlement under a payment split is to be dealt with under regulation 7A.16.
History
Reg 10.03(2) and (3) substituted for reg 10.03(2) by SR No 353 of 2001, reg 3 and Sch 1 item 50, effective 28 December 2002. Reg 10.03(2) formerly read:
10.03(2)
For the purposes of paragraph 243(3)(b) of the Act, the amount of the consideration for the issue of a superannuation interest is the amount of the beneficiary's withdrawal benefit in the transferor fund.
Note: Section 243 of the Act sets out the circumstances in which the trustee of a fund may apply on behalf of a beneficiary of the fund to an eligible rollover fund for the issue of a superannuation interest to the beneficiary. There are no conditions prescribed for the purposes of paragraph 243(1)(c) of the Act.
10.03(3)
For paragraph 243(3)(b) of the Act, the amount of the consideration for the issue of a superannuation interest is the amount of the beneficiary's withdrawal benefit in the transferor fund (not including any amount that would be payable to the member's spouse or former spouse under a payment split).
Note: Section 243 of the Act sets out the circumstances in which the trustee of a fund may apply to an eligible rollover fund, on behalf of a beneficiary of the fund, for the issue of a superannuation interest in the eligible rollover fund to the beneficiary.
History
Reg 10.03(2) and (3) substituted for reg 10.03(2) by SR No 353 of 2001, reg 3 and Sch 1 item 50, effective 28 December 2002.
Reg 10.03 substituted by SR No 159 of 1995.
SECTION 10.04
REGULATION 10.04 PRESCRIBED INFORMATION TO BE GIVEN TO ELIGIBLE ROLLOVER FUND
10.04
(Omitted by SR No 159 of 1995)
SECTION 10.04A
REGULATION 10.04A MINIMUM AMOUNT TO BE DEALT WITH AS UNCLAIMED MONEY
10.04A
(Omitted by SR No 159 of 1995)
History
Reg 10.04A inserted by SR No 432 of 1994.
SECTION 10.05
REGULATION 10.05 PRESCRIBED INFORMATION TO BE GIVEN TO THE COMMISSIONER
10.05
(Omitted by SR No 64 of 1995)
Division 10.3 - Additional operating standards applicable to eligible rollover funds
REGULATION 10.06 OPERATING STANDARDS - ELIGIBLE ROLLOVER FUNDS
10.06(1)
For subsections 31(1) and 32(1) of the Act, and subject to regulation 10.07, the standard stated in subregulation (2) is a standard applicable (in addition to other standards applicable under these Regulations) to the operation of an eligible rollover fund.
History
Reg 10.06(1) substituted by SR No 113 of 2004, reg 3 and Sch 1 item 17, effective 1 July 2004. Reg 10.06(1) formerly read:
10.06(1)
For the purposes of subsections 31(1) and 32(1) of the Act, a requirement of this Division is a standard applicable (in addition to other standards applicable under these Regulations) to the operation of an eligible rollover fund.
10.06(2)
The trustee of an eligible rollover fund must accept payment of:
(a)
benefits (other than pension benefits) paid from:
(i)
a superannuation fund (other than an eligible rollover fund); or
(ii)
an approved deposit fund (other than an eligible rollover fund); or
(iii)
an RSA; and
(b)
shortfall components; and
(c)
amounts paid from the Superannuation Holding Accounts Special Account.
History
Reg 10.06(2) amended by SLI No 218 of 2005, reg 3 and Sch 1 item 36, by substituting "Superannuation Holding Accounts Special Account" for "Superannuation Holding Accounts Reserve" in para (c), effective 8 October 2005.
Reg 10.06(2) amended by SR No 117 of 1997 and SR No 159 of 1995.
10.06(3)
The trustee of an eligible rollover fund must at all times treat the whole of the benefits of every member as minimum benefits (within the meaning of Part 5).
History
Reg 10.06(3) substituted by SLI No 86 of 2013, reg 4 and Sch 1 item 10, effective 1 July 2013. Reg 10.06(3) formerly read:
10.06(3)
The trustee of an eligible rollover fund must treat:
(a)
every member of the fund as a protected member at all times; and
(b)
the whole of the benefits of every member as minimum benefits (within the meaning of Part 5) at all times.
Reg 10.06(3) amended by SR No 159 of 1995.
Reg 10.06 substituted by SR No 64 of 1995.
REGULATION 10.07 OPERATING STANDARD - RESTRICTION ON ACCEPTANCE OF ROLLOVERS
10.07(1)
For paragraphs 31(2)(d) and 32(2)(a) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is an eligible rollover fund.
History
Reg 10.07(1) and note substituted by SLI No 113 of 2004, reg 3 and Sch 2 item 11, effective a July 2006. Reg 10.07(1), including the note, formerly read:
10.07(1)
For paragraphs 31(2)(d) and 32(2)(a) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is an eligible rollover fund:
(a)
that came into existence on or after the start of the licensing transition period; and
(b)
for which there is an RSE licensee.
Note:
Licensing transition period
is defined in subsection 10(1) of the Act.
10.07(2)
A trustee of a registrable superannuation entity that is an eligible rollover fund must not, unless the registrable superannuation entity is registered under Part 2B of the Act, accept payment of:
(a)
benefits; or
(b)
shortfall components; or
(c)
amounts paid from the Superannuation Holding Accounts Special Account.
History
Reg 10.07(2) amended by SLI No 218 of 2005, reg 3 and Sch 1 item 37, by substituting "Superannuation Holding Accounts Special Account" for "Superannuation Holding Accounts Reserve" in para (c), effective 8 October 2005.
Reg 10.07 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 18, effective 1 July 2004.
Pt 10 heading substituted by SR No 159 of 1995.
REGULATION 10.01
10.01
APPLICATION FOR AUTHORITY TO OPERATE ELIGIBLE ROLLOVER FUND
For subsection 242A(1) of the Act, the following may apply to APRA for authority to operate a regulated superannuation fund as an eligible rollover fund:
(a)
the class of RSE licensee that holds a public offer entity licence;
(b)
the class of RSE licensee that holds an extended public offer entity licence.
Note: For extended public offer entity licences, see regulation 3A.03.
History
Reg 10.01 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 101, effective 1 July 2013. For former wording, see history note under Pt 10 heading.
REGULATION 10.02
PAYMENT OF BENEFIT TO ELIGIBLE ROLLOVER FUND
10.02(1)
For paragraph 243(1)(b) of the Act, 1 July 1995 is the date from which section 243 of the Act applies to a person.
10.02(2)
For paragraph 243(1)(c) of the Act, the condition is that the beneficiary is not a non-member spouse whose entitlement under a payment split is to be dealt with under regulation 7A.16.
10.02(3)
For paragraph 243(3)(b) of the Act, the amount of the consideration for the issue of a superannuation interest:
(a)
is the amount of the beneficiary's withdrawal benefit in the transferor fund; and
(b)
does not include any amount that would be payable to the member's spouse or former spouse under a payment split.
Note:
Section 243 of the Act sets out the circumstances in which the trustee of a fund may apply to an eligible rollover fund, on behalf of a beneficiary of the fund, for the issue of a superannuation interest in the eligible rollover fund to the beneficiary.
History
Reg 10.02 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 101, effective 1 July 2013. For former wording, see history note under Pt 10 heading.
10.03
(Repealed) REGULATION 10.03 OPERATING STANDARD - ELIGIBLE ROLLOVER FUNDS
(Repealed by FRLI No F2021L00412)
History
Reg 10.03 repealed by FRLI No F2021L00412, reg 4 and Sch 1 item 52, effective 2 April 2021. Reg 10.03 formerly read:
REGULATION 10.03 OPERATING STANDARD - ELIGIBLE ROLLOVER FUNDS
10.03(1)
For subsection 31(1) of the Act, this standard applies to the trustee of an eligible rollover fund.
10.03(2)
The trustee must accept payment of benefits, other than pension benefits, paid from a superannuation fund, other than an eligible rollover fund.
Reg 10.03 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 101, effective 1 July 2013. For former wording, see history note under Pt 10 heading.
PART 11 - INFORMATION TO BE GIVEN TO THE REGULATOR AND RELATED MATTERS
History
Heading to Pt 11 amended by SR No 193 of 1998.
REGULATION 11.01
11.01
DEFINITION
In this Part:
contact person
means a named individual, or a person holding a designated office or position, who is available to receive and deal with inquiries from the Regulator.
History
Definition of ``contact person'' amended by SR No 193 of 1998.
11.02
(Repealed) REGULATION 11.02 LODGMENT OF ANNUAL RETURNS BY NON SELF MANAGED SUPERANNUATION ENTITIES
(Repealed by SR No 170 of 2003)
History
Reg 11.02 repealed by SR No 170 of 2003, reg 3 and Sch 1 item 2, effective 2 July 2003. Reg 11.02 formerly read:
REGULATION 11.02 LODGMENT OF ANNUAL RETURNS BY NON SELF MANAGED SUPERANNUATION ENTITIES
11.02
For the purposes of subsection 36(1) of the Act, the prescribed period after the end of each year of income of a superannuation entity is:
(a)
for a superannuation entity that is a public offer entity - 4 months; and
(b)
(Repealed by SR No 239 of 1999)
(c)
for any other superannuation entity:
(i)
for a year of income that ends before 30 June 2000 - 6 months; and
(ii)
for a year of income that ends on or after 30 June 2000 - 4 months.
Note:
This regulation does not apply to a superannuation entity that is a self managed superannuation fund for the whole of a year of income (see subs 36 (5) of the Act). The lodgment of returns by such a superannuation fund is dealt with in s 36A of the Act.
Reg 11.02 amended by SR No 239 of 1999, SR No 31 of 1999, SR No 240 of 1998 and SR No 193 of 1998.
11.02A
(Repealed) REGULATION 11.02A SERVICE OF CONTRAVENTION NOTICE (ACT S 252B)
(Repealed by FRLI No F2022L01627)
History
Reg 11.02A repealed by FRLI No F2022L01627, reg 4 and Sch 1 item 4, effective 13 December 2022. Reg 11.02A formerly read:
REGULATION 11.02A SERVICE OF CONTRAVENTION NOTICE (ACT S 252B)
11.02A(1)
[Service]
For subsection 252B(1) of the Act, a contravention notice may be served on the trustee of a fund by:
(a)
delivering it personally to the trustee; or
(b)
leaving it at the trustee's address for service; or
(c)
sending it by facsimile transmission:
(i)
to the trustee; or
(ii)
to another person who would, in the ordinary course of events, give the notice to the trustee; or
(d)
sending it by prepaid letter post, addressed to the trustee at the trustee's address for service.
11.02A(2)
[Trustee's address for service]
For paragraphs (1)(b) and (d), a trustee's address for service is:
(a)
if the trustee told APRA or the Commissioner of Taxation of the fund's registered address or address for service - that address; or
(b)
in any other case - any address that whichever of APRA or the Commissioner of Taxation is serving the notice reasonably believes is the trustee's address.
11.02A(3)
[Taken as served]
In the absence of proof to the contrary, a contravention notice served on a trustee in accordance with subregulation (1) is taken to have been served:
(a)
in the case of service in accordance with paragraph (1)(a), (b), or (c) - when the notice or document is delivered, left or transmitted; and
(b)
in the case of service in accordance with paragraph (1)(d) - when the notice or document would, in the ordinary course of post, have arrived at the place to which it was addressed.
Reg 11.02A inserted by SR No 239 of 1999.
11.03
(Repealed) REGULATION 11.03 PERIOD FOR GIVING INFORMATION TO THE REGULATOR, ACT, S 254(1)
(Repealed by FRLI No F2024L01610)
History
Reg 11.03 repealed by FRLI No F2024L01610, reg 4 and Sch 1 item 19, effective 10 December 2024. Reg 11.03 formerly read:
REGULATION 11.03 PERIOD FOR GIVING INFORMATION TO THE REGULATOR, ACT, S 254(1)
11.03
For subsection 254(1) of the Act, the prescribed period is 7 days.
Reg 11.03 amended by SR No 193 of 1998.
REGULATION 11.04
11.04
PRESCRIBED INFORMATION - REGULATED SUPERANNUATION FUNDS
For the purposes of paragraph 254(2A)(b) of the Act, the prescribed information in relation to a regulated superannuation fund is:
(a)
the following general information:
(i)
the name of the fund; and
(ii)
the postal address of the fund; and
(iii)
the registered address of, or an address for service of notices on, the fund; and
(iv)
a contact person, and contact telephone and facsimile numbers; and
(b)
the following trustee information:
(i)
if the trustee is a corporate trustee - the name, registered address and telephone number of the trustee, and the name of each director of the trustee; or
(ii)
if the trustee, or each of the trustees, is an individual - the name of the trustee or of each trustee, as the case requires; and
(c)
the following information about the fund:
(i)
the date of establishment of the fund; and
(ii)
a statement as to whether:
(A)
the trustee of the fund is a constitutional corporation pursuant to a requirement contained in the governing rules; or
(B)
the governing rules of the fund provide that the sole or primary purpose of the fund is the provision of old-age pensions; and
(iii)
a statement as to whether the fund is any (and if so, which) of the following:
(A)
a self managed superannuation fund; or
(B)
a public offer superannuation fund; or
(C)
a public sector superannuation fund; or
(D)
a public sector superannuation scheme;
(iv)
if the fund is a self managed superannuation fund - a statement as to whether, in the trustee's opinion, the fund is likely to be a self managed superannuation fund at the end of 12 months after the date of lodgment of the notice.
History
Reg 11.04 amended by FRLI No F2024L01610, reg 4 and Sch 1 item 31, by substituting "information about the fund" for "fund information" in para (c), effective 9 January 2025.
Reg 11.04 amended by FRLI No F2024L01610, reg 4 and Sch 1 items 21 and 22, by substituting "paragraph 254(2A)(b)" for "subsection 254(1)" and omitting "the trustee of" (first occurring) after "in relation to", effective 10 December 2024.
Reg 11.04 amended by SLI No 343 of 2007, Sch 2 item 1, by substituting "the name, registered address and telephone number of the trustee," for "the name of the trustee, its registered address, telephone number and Australian Company Number," in para (b)(i), effective 24 September 2008.
Reg 11.04 amended by SR No 239 of 1999.
REGULATION 11.05
11.05
PRESCRIBED INFORMATION - APPROVED DEPOSIT FUNDS
For the purposes of paragraph 254(2A)(b) of the Act, the prescribed information in relation to an approved deposit fund is:
(a)
the following general information:
(i)
the name of the fund; and
(ii)
the postal address of the fund; and
(iii)
the registered address of, or an address for service of notices on, the fund; and
(iv)
a contact person, and contact telephone and facsimile numbers; and
(b)
the following trustee information:
(i)
the name of the trustee, its registered address and telephone number; and
(ii)
the name of each director of the trustee; and
(c)
the following information about the fund:
(i)
the date of establishment of the fund; and
(ii)
a statement as to whether the fund is an excluded approved deposit fund.
History
Reg 11.05 amended by FRLI No F2024L01610, reg 4 and Sch 1 item 31, by substituting "information about the fund" for "fund information" in para (c), effective 9 January 2025.
Reg 11.05 amended by FRLI No F2024L01610, reg 4 and Sch 1 items 24 and 25, by substituting "paragraph 254(2A)(b)" for "subsection 254(1)" and omitting "the trustee of" after "in relation to", effective 10 December 2024.
Reg 11.05 amended by SLI No 343 of 2007, Sch 2 item 2, by substituting "and telephone number" for ", telephone number and Australian Company Number" in para (b)(i), effective 24 September 2008.
REGULATION 11.06
11.06
PRESCRIBED INFORMATION - PSTs
For the purposes of paragraph 254(2A)(b) of the Act, the prescribed information in relation to a pooled superannuation trust is:
(a)
the following general information:
(i)
the name of the trust; and
(ii)
the postal address of the trust; and
(iii)
the registered address of, or an address for service of notices on, the trust; and
(iv)
a contact person, and contact telephone and facsimile numbers; and
(b)
the following trustee information:
(i)
the name of the trustee, its registered address and telephone number; and
(ii)
the name of each director of the trustee; and
(c)
the date of establishment of the trust.
History
Reg 11.06 amended by FRLI No F2024L01610, reg 4 and Sch 1 item 27, by substituting "paragraph 254(2A)(b)" for "subsection 254(1)", effective 10 December 2024.
Reg 11.06 amended by SLI No 343 of 2007, Sch 2 item 3, by substituting "and telephone number" for ", telephone number and Australian Company Number" in para (b)(i), effective 24 September 2008.
11.06A
(Repealed) REGULATION 11.06A SPECIFIED PERSON OR BODY (ACT S 254(1))
(Repealed by FRLI No F2024L01610)
History
Reg 11.06A repealed by FRLI No F2024L01610, reg 4 and Sch 1 item 28, effective 10 December 2024. Reg 11.06A formerly read:
REGULATION 11.06A SPECIFIED PERSON OR BODY (ACT S 254(1))
11.06A
For subsection 254(1) of the Act, the Commissioner of Taxation is specified.
Reg 11.06A inserted by SR No 239 of 1999.
REGULATION 11.07
OPERATING STANDARD - DISCLOSURE OF CERTAIN INFORMATION (FUNDS OTHER THAN SELF MANAGED SUPERANNUATION FUNDS)
11.07(1)
This standard:
(a)
is made for subsections 31(1), 32(1) and 33(1)of the Act; and
(b)
applies to a superannuation entity other than a self managed superannuation fund.
11.07(2)
The trustee of the entity must give written notice to the Regulator of any change in the following:
(a)
the name of the entity;
(b)
the postal address, registered address or address for service of notices of the entity;
(c)
details of the contact person for the entity, and contact telephone and facsimile numbers;
(d)
the RSE licensee of the entity.
11.07(3)
The notice for subregulation (2) must be given:
(a)
for a superannuation entity that is an eligible rollover fund - immediately after the change; or
(b)
in any other case - within 28 days of the change.
11.07(4)
An RSE licensee who is an incoming trustee of the entity must give written notice of that fact to the Regulator.
11.07(5)
The notice for subregulation (4) must be given:
(a)
as soon as practicable after the RSE licensee becomes a trustee of the entity; and
(b)
no later than 5 days after the date on which the RSE licensee becomes a trustee of the entity.
11.07(6)
The trustee of the entity must give written notice to the Regulator of a decision or resolution:
(a)
to wind up the entity; or
(b)
to retire as a trustee of the entity.
11.07(7)
The notice for subregulation (6) must be given
(a)
as soon as practicable after the making of the decision or resolution; and
(b)
before the winding up has commenced or the trustee has retired.
11.07(8)
The trustee of the entity must give written notice to the Regulator of a change in class of the RSE.
11.07(9)
The notice for subregulation (8) must be given before, or as soon as practicable after, the change in the class.
History
Reg 11.07 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 102, effective 1 July 2013. Reg 11.07 formerly read:
REGULATION 11.07 OPERATING STANDARD - DISCLOSURE OF CERTAIN INFORMATION (FUNDS OTHER THAN SELF MANAGED SUPERANNUATION FUNDS)
11.07(1)
For the purposes of subsections 31(1), 32(1) and 33(1) of the Act, it is a standard applicable to the operation of a superannuation entity other than a self managed superannuation fund that the trustee must give notice in writing to the Regulator, in accordance with subregulation (2), of any change in:
(a)
the name of the entity; or
(b)
the postal address, registered address or address for service of notices, of the entity; or
(c)
details of the contact person, and contact telephone and facsimile numbers; or
(d)
the RSE licensee of the entity.
History
Reg 11.07(1) amended by SLI No 343 of 2007, reg 3 and Sch 1 items 14 and 15 (as amended by SLI No 133 of 2008), by substituting "numbers; or" for "numbers." in para (c) and inserting para (d), applicable 4 October 2007.
Reg 11.07(1) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 85, by inserting "other than a self managed superannuation fund" after "a superannuation entity", effective 1 July 2007.
Reg 11.07(1) amended by SR No 239 of 1999, SR No 239 of 1999 and SR No 193 of 1998.
11.07(2)
A notice mentioned in subregulation (1) must be given:
(a)
in the case of a superannuation entity that is an eligible rollover fund - immediately after the occurrence of the change; or
(b)
in any other case - within 28 days after the occurrence of the change.
History
Reg 11.07(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 86, by substituting "28 days after" for "1 month of" in para (b), effective 1 July 2007.
11.07(2A)
For subsections 31(1), 32(1) and 33(1) of the Act, it is a standard applicable to the operation of a superannuation entity other than a self managed superannuation fund that an incoming trustee must give written notice to the Regulator that it has commenced as a trustee of the entity.
History
Reg 11.07(2A) inserted by SLI No 343 of 2007, reg 3 and Sch 1 item 16 (as amended by SLI No 133 of 2008), applicable 4 October 2007.
11.07(2B)
A notice mentioned in subregulation (2A) must be given as soon as practicable after the RSE licensee has commenced as a trustee of the entity but, in any event, no later than 5 days after that date.
History
Reg 11.07(2B) inserted by SLI No 343 of 2007, reg 3 and Sch 1 item 16 (as amended by SLI No 133 of 2008), applicable 4 October 2007.
11.07(3)
For subsections 31(1), 32(1) and 33(1) of the Act, it is a standard applicable to the operation of a superannuation entity that the trustee must give notice in writing to the Regulator, in accordance with subregulation (4), of:
(a)
a decision or resolution to wind up the entity; or
(b)
a decision or resolution to retire as a trustee of the entity.
History
Reg 11.07(3) substituted by SLI No 343 of 2007, reg 3 and Sch 1 item 17 (as amended by SLI No 133 of 2008), applicable 4 October 2007. Reg 11.07(3) formerly read:
11.07(3)
For the purposes of subsections 31(1), 32(1) and 33(1) of the Act, it is a standard applicable to the operation of a superannuation entity that the trustee must give notice in writing to the Regulator, in accordance with subregulation (4), of a decision or resolution to wind up the entity.
Reg 11.07(3) amended by SR No 239 of 1999 and SR No 193 of 1998.
11.07(4)
Notice under subregulation (3) must be given:
(a)
in the case of a regulated superannuation fund that is a self managed superannuation fund - before, or as soon practicable after, the winding up is commenced or the trustee of the entity has retired; or
(b)
in any other case - as soon as practicable after the making of the decision or resolution to wind up the entity or of the trustee to retire and, in any event, before the winding up is commenced or the trustee has retired.
History
Reg 11.07(4) amended by SLI No 343 of 2007, reg 3 and Sch 1 items 18 and 19 (as amended by SLI No 133 of 2008), by inserting "or the trustee of the entity has retired" after "commenced" in para (a) and substituting "entity or of the trustee to retire and, in any event, before the winding up is commenced or the trustee has retired." for "entity and, in any event, before the winding up is commenced." in para (b), applicable 4 October 2007.
Reg 11.07(4) amended by SR No 239 of 1999.
REGULATION 11.07AA
OPERATING STANDARD - DISCLOSURE OF CERTAIN INFORMATION (SELF MANAGED SUPERANNUATION FUNDS)
11.07AA(1)
This standard is made for subsection 31(1) of the Act.
11.07AA(2)
The trustee of a self managed superannuation fund must give written notice to the Regulator of any change in the following:
(a)the name of the fund;
(b)
the postal address, registered address or address for service of notices of the fund;
(c)
details of the contact person for the fund, and contact telephone and facsimile numbers;
(d)
the membership of the fund;
(e)
the trustees of the fund;
(f)
the directors of the fund's corporate trustee.
11.07AA(3)
The notice for subregulation (2) must be given:
(a)
using the approved form; and
(b)
within 28 days after the change.
History
Reg 11.07AA substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 102, effective 1 July 2013. Reg 11.07AA formerly read:
REGULATION 11.07AA OPERATING STANDARD - DISCLOSURE OF CERTAIN INFORMATION (SELF MANAGED SUPERANNUATION FUNDS)
11.07AA(1)
For subsections 31(1), 32(1) and 33(1) of the Act, it is a standard applicable to the operation of a self managed superannuation fund that the trustee must give notice in writing to the Regulator, in accordance with subregulation (2), of any change in:
(a)
the name of the entity; or
(b)
the postal address, registered address or address for service of notices, of the entity; or
(c)
details of the contact person, and contact telephone and facsimile numbers; or
(d)
the membership of the fund; or
(e)
the trustees of the fund; or
(f)
the directors of the fund's corporate trustee.
11.07AA(2)
A notice mentioned in subregulation (1) must be given:
(a)
using the approved form; and
(b)
within 28 days after the occurrence of the change.
History
Reg 11.07AA inserted by SLI No 74 of 2007, reg 5 and Sch 3 item 87, effective 1 July 2007.
REGULATION 11.07A
OPERATING STANDARD - DISCLOSURE ON CHANGE OF STATUS
11.07A(1)
[Prescribed standard]
For subsection 31(1) of the Act, the requirement in subregulation (3) is a standard applicable to the operation of a regulated superannuation fund.
11.07A(2)
[Application]
The standard applies to the trustee of a superannuation fund that:
(a)
is a self managed superannuation fund and:
(i)
ceases to be such a superannuation fund; or
(ii)
ceases to exist; or
(b)
is not a self managed superannuation fund and becomes such a superannuation fund.
11.07A(3)
[Disclosure]
Within 28 days after the trustee first has knowledge of such a change, the trustee must tell the Commissioner of Taxation in writing:
(a)
the fund's name; and
(b)
its ABN; and
(c)
the name of an individual who is able to act as a contact person, and his or her telephone and facsimile numbers; and
(d)
the date on which the change occurred; and
(e)
if the fund has not ceased to exist - whether it has become a self managed superannuation fund; and
(f)
if the fund has become a self managed superannuation fund:
(i)
for any trustee of the fund that is an individual - his or her name, date of birth and sex; or
(ii)
for any trustee that is a corporation - its name and its ABN; and
(g)
if the fund has not ceased to exist, but is not a self managed superannuation fund after the change - the trustee's name and its ABN.
History
Reg 11.07A(3) amended by SLI No 343 of 2007, Sch 2 items 4, 5 and 6, by omitting "(if any) or, if it has no ABN, its SFN (if any)" after "its ABN" in paras (b), (f)(ii) and (g), effective 24 September 2008.
Reg 11.07A(3) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 88, by substituting "28 days" for "21 days", effective 1 July 2007.
11.07A(4)
[Interpretation]
In subregulation (3):
ABN
, for an entity, means the Australian Business Number given to the entity under the A New Tax System (Australian Business Number) Act 1999.
SFN
(Repealed by SLI No 343 of 2007)
History
Reg 11.07A(4) amended by SLI No 343 of 2007, Sch 2 item 7, by omitting the definition of "SFN", effective 24 September 2008. The definition of "SFN" formerly read:
SFN
, for a superannuation fund, means the number assigned to the fund by APRA.
History
Reg 11.07A inserted by SR No 239 of 1999.
REGULATION 11.08
OPERATING STANDARD - DISCLOSURE OF SUCCESSOR FUND TRANSFER
11.08(1)
For subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of a superannuation entity, other than a pooled superannuation trust or a self managed superannuation fund, that the trustee must give notice in writing to the Regulator, in accordance with subregulation (2), of a decision to transfer a member's benefits from the fund, without the member's consent.
11.08(2)
Notice under subregulation (1) must be given:
(a)
as soon as practicable after the making of the decision to transfer the member's benefits from the fund; or
(b)
if the fund is being wound up - before the winding up is commenced.
History
Reg 11.08 inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 103, effective 1 July 2013.
Former reg 11.08 substituted by SR No 64 of 1995. Former reg 11.08 formerly read:
REGULATION 11.08 INFORMATION REGARDING LOST MEMBERS TO BE PROVIDED TO ASIC
11.08
(Repealed by SR No 317 of 1999)
History
Reg 11.08 substituted by SR No 64 of 1995.
PART 11A - REGISTER TO BE KEPT BY APRA
History
Pt 11A substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 104, effective 1 July 2013. Pt 11A formerly read:
PART 11A - REGISTER TO BE KEPT BY APRA
REGULATION 11A.01 GENERAL
11A.01(1)
For subsection 353(2) of the Act, APRA must keep a register of:
(a)
registrable superannuation entities that have been registered under Part 2B of the Act; and
(b)
the RSE licensees of those entities.
11A.01(2)
APRA may determine the form and manner in which the Register will be kept.
Note
The form of register determined by APRA must be a form that would allow the register to be inspected and copied under subregulation (3).
11A.01(3)
A person may:
(a)
inspect a register; and
(b)
make a copy of, or take extracts from, the register.
History
Reg 11A.01 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 19, effective 1 July 2004.
REGULATION 11A.02 REGULATED SUPERANNUATION FUNDS
11A.02(1)
The Register must contain the information set out in subregulations (2) and (3) for each registrable superannuation entity that is a regulated superannuation fund.
11A.02(2)
The Register must contain the following information for each registrable superannuation entity:
(a)
the name of the entity;
(b)
(Repealed by SLI No 343 of 2007)
(c)
the postal address of the entity;
(d)
the registered address of, or an address for service of notices on, the entity;
(e)
a contact person and contact telephone and facsimile numbers for the entity;
(f)
the status of the entity under section 42 of the Act;
(g)
the Australian Business Number (the
ABN
) of the entity.
History
Reg 11A.02(2) amended by SLI No 343 of 2007, Sch 2 items 8 and 9, by omitting para (b) and omitting ", if any," after "
ABN
" in para (g), effective 24 September 2008. Para (b) formerly read:
(b)
the registration number of the entity;
11A.02(3)
The Register must also contain, in relation to each registrable superannuation entity, the following information:
(a)
the class of RSE licence held by the RSE licensee;
(b)
for an RSE licensee that is a body corporate - the RSE licensee's:
(i)
(Repealed by SLI No 343 of 2007)
(ii)
name; and
(iii)
registered address; and
(iv)
telephone number; and
(v)
(Repealed by SLI No 343 of 2007)
(vi)
ABN;
(c)
for an RSE licensee that is a group of individual trustees:
(i)
the ABN of the RSE licensee; and
(ii)
the name of each individual trustee who is a member of the group.
History
Reg 11A.02(3) amended by SLI No 343 of 2007, Sch 2 items 10 to 12, by omitting para (b)(i) and (v), omitting ", if any" after "ABN" in para (b)(vi) and substituting para (c)(i), effective 24 September 2008. Para (b)(i) and (v) and para (c)(i) formerly read:
(i)
unique licence number; and
(v)
Australian Company Number (
ACN
); and
(i)
the RSE licensee's unique licence number; and
History
Reg 11A.02 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 19, effective 1 July 2004.
REGULATION 11A.03 APPROVED DEPOSIT FUNDS
11A.03(1)
The Register must contain the information set out in subregulations (2) and (3) for each registrable superannuation entity that is an approved deposit fund.
11A.03(2)
The Register must contain the following information for each registrable superannuation entity:
(a)
the name of the entity;
(b)
(Repealed by SLI No 343 of 2007)
(c)
the postal address of the entity;
(d)
the registered address of, or an address for service of notices on, the entity;
(e)
a contact person and contact telephone and facsimile numbers for the entity;
(f)
the status of the entity under section 43 of the Act;
(g)
the ABN of the entity.
History
Reg 11A.03(2) amended by SLI No 343 of 2007, Sch 2 items 13 and 14, by omitting para (b) and omitting ", if any," after "the ABN" in para (g), effective 24 September 2008. Para (b) formerly read:
(b)
the registration number of the entity;
11A.03(3)
The register must also contain, in relation to each registrable superannuation entity, the following information:
(a)
the class of RSE licence held by the RSE licensee;
(b)
the RSElicensee's:
(i)
(Repealed by SLI No 343 of 2007)
(ii)
name; and
(iii)
registered address; and
(iv)
telephone number; and
(v)
(Repealed by SLI No 343 of 2007)
(vi)
ABN.
History
Reg 11A.03(3) amended by SLI No 343 of 2007, Sch 2 items 15 and 16, by omitting para (b)(i) and (v), and omitting ", if any" after "ABN" in para (b)(vi), effective 24 September 2008. Para (b)(i) and (v) formerly read:
(i)
unique licence number; and
(v)
ACN; and
History
Reg 11A.03 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 19, effective 1 July 2004.
REGULATION 11A.04 POOLED SUPERANNUATION TRUSTS
11A.04(1)
The Register must contain the information set out in subregulations (2) and (3) for each registrable superannuation entity that is a PST.
11A.04(2)
The Register must contain the following information for each registrable superannuation entity:
(a)
the name of the entity;
(b)
(Repealed by SLI No 343 of 2007)
(c)
the postal address of the entity;
(d)
the registered address of, or an address for service of notices on, the entity;
(e)
a contact person and contact telephone and facsimile numbers for the entity;
(f)
the status of the entity under section 44 of the Act;
(g)
the ABN of the entity.
History
Reg 11A.04(2) amended by SLI No 343 of 2007, Sch 2 items 17 and 18, by omitting para (b) and omitting ", if any," after "the ABN" in para (g), effective 24 September 2008. Para (b) formerly read:
(b)
the registration number of the entity;
11A.04(3)
The Register must also contain, in relation to each registrable superannuation entity, the following information:
(a)
the class of RSE licence held by the RSE licensee;
(b)
the RSE licensee's:
(i)
(Repealed by SLI No 343 of 2007)
(ii)
name; and
(iii)
registered address; and
(iv)
telephone number; and
(v)
(Repealed by SLI No 343 of 2007)
(vi)
ABN.
History
Reg 11A.04(3) amended by SLI No 343 of 2007, Sch 2 items 19 and 20, by omitting para (b)(i) and (v) and omitting ", if any" after "ABN" in para (b)(vi), effective 24 September 2008. Para (b)(i) and (v) formerly read:
(i)
unique licence number; and
(v)
ACN; and
History
Reg 11A.04 inserted by SR No 113 of 2004, reg 3 and Sch 1 item 19, effective 1 July 2004.
Pt 11A inserted by SR No 113 of 2004, reg 3 and Sch 1 item 19, effective 1 July 2004.
REGULATION 11A.01
11A.01
SOURCE OF POWER FOR THIS PART
This Part is made for subsection 353(1) of the Act.
Note: See subsection 353(2) of the Act.
History
Reg 11A.01 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 104, effective 1 July 2013. For former wording, see history note under Pt 11A heading.
REGULATION 11A.02
11A.02
DEFINITION
In this Part:
Register
means the register kept by APRA under this Part.
History
Reg 11A.02 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 104, effective 1 July 2013. For former wording, see history note under Pt 11A heading.
REGULATION 11A.03
APRA MUST KEEP REGISTER
11A.03(1)
APRA must keep a register of:
(a)
registrable superannuation entities that have been registered under Part 2B of the Act; and
(b)
the RSE licensees of those entities.
11A.03(2)
APRA may determine the form and manner in which the Register is kept.
Note: The form of register determined by APRA must be a form that would allow the register to be inspected and copied under subregulation (3).
11A.03(3)
A person may:
(a)
inspect the Register; and
(b)
make a copy of, or take extracts from, the Register.
History
Reg 11A.03 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 104, effective 1 July 2013. For former wording, see history note under Pt 11A heading.
REGULATION 11A.04
11A.04
REGULATED SUPERANNUATION FUNDS
The Register must contain the following information for each registrable superannuation entity that is a regulated superannuation fund:
(a)
the name of the entity;
(b)
the postal address of the entity;
(c)
the registered address of, or an address for service of notices on, the entity;
(d)
a contact person and contact telephone and facsimile numbers for the entity;
(e)
the status of the entity under section 42 of the Act;
(f)
the Australian Business Number (the
ABN
) of the entity;
(g)
the class of RSE licence held by the RSE licensee;
(h)
for each MySuper product of the entity:
(i)
the name of the MySuper product; and
(ii)
the unique identifier of the MySuper product; and
(iii)
whether the type of MySuper authorisation held by the entity is generic, large employer or goodwill; and
(iv)
for an entity that has a large employer authorisation, for each MySuper product authorised - the name and ABN of each associated large employer;
(i)
whether the entity is an eligible rollover fund;
(j)
for an RSE licensee that is a body corporate - the RSE licensee's:
(i)
name; and
(ii)
registered address; and
(iii)
telephone number; and
(iv)
ABN;
(k)
for an RSE licensee that is a group of individual trustees:
(i)
the ABN of the RSE licensee; and
(ii)
the name of each individual trustee who is a member of the group.
History
Reg 11A.04 substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 104, effective 1 July 2013. For former wording, see history note under Pt 11A heading.
REGULATION 11A.05
11A.05
APPROVED DEPOSIT FUNDS
The Register must contain the following information for each registrable superannuation entity that is an approved deposit fund:
(a)
the name of the entity;
(b)
the postal address of the entity;
(c)
the registered address of, or an address for service of notices on, the entity;
(d)
a contact person and contact telephone and facsimile numbers for the entity;
(e)
the status of the entity under section 43 of the Act;
(f)
the ABN of the entity;
(g)
the class of RSE licence held by the RSE licensee;
(h)
the RSE licensee's:
(i)
name; and
(ii)
registered address; and
(iii)
telephone number; and
(iv)
ABN.
History
Reg 11A.05 inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 104, effective 1 July 2013.
REGULATION 11A.06
11A.06
PSTs
The Register must contain the following information for each registrable superannuation entity that is a PST:
(a)
the name of the entity;
(b)
the postal address of the entity;
(c)
the registered address of, or an address for service of notices on, the entity;
(d)
a contact person and contact telephone and facsimile numbers for the entity;
(e)
the status of the entity under section 44 of the Act;
(f)
the ABN of the entity;
(g)
the class of RSE licence held by the RSE licensee;
(h)
the RSE licensee's:
(i)
name; and
(ii)
registered address; and
(iii)
telephone number; and
(iv)
ABN.
History
Reg 11A.06 inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 104, effective 1 July 2013.
PART 12 - PRE-1 JULY 1988 FUNDING CREDITS AND DEBITS
REGULATION 12.01
12.01
DEFINITIONS
In this Part, unless the contrary intention appears:
defined benefit fund
has the meaning that would be given by regulation 1.03 if
regulated
were omitted from the definition of
defined benefit fund
in that regulation.
History
Definition of ``defined benefit fund'' inserted by SR No 432 of 1994.
PJFC
, in relation to a superannuation fund, means an amount specified in a notice by APRA under subsection 342(2) of the Act.
History
Definition of ``PJFC'' amended by SR No 193 of 1998.
pre-1 July 88 funding amount
has the meaning given by regulation 12.02.
pre-1 July 88 funding credits available
has the meaning given by subsection 295-265(2) of the 1997 Tax Act.
History
Definition of "pre-1 July 88 funding credits available" substituted for definition of "pre-1July 88 funding credit balance" by SLI No 74 of 2007, reg 5 and Sch 3 item 89, effective 1 July 2007. The definition of "pre-1 July 88 funding credit balance" formerly read:
"pre-1 July 88 funding credit balance"
has the meaning given by subsection 275A(1) of the Tax Act;
prescribed event
has the meaning given by regulation 12.10.
reviewable decision
(Omitted by SR No 344 of 1996)
shortfall-in-assets amount
means an amount determined by an actuary in accordance with regulation 12.03.
REGULATION 12.02
PRE-1 JULY 88 FUNDING AMOUNTS
12.02(1)
[``late payment amount'']
In this regulation:
late payment amount
, in relation to a superannuation fund, means an amount (other than an amount representing a contribution that was payable or not payable at the discretion of an employer-contributor in respect of the fund) representing contributions to the fund that were unpaid as at 30 June 1988, being contributions that an employer-contributor in respect of the fund was obliged as at 30 June 1988 to pay in accordance with:
(a)
except if paragraph (b) applies, the governing rules of the fund then in force; or
(b)
in the case of an amount representing contributions in respect of a member of a defined benefit fund who is an associate of an employer-contributor - the determination of an actuary; or
(c)
an agreement certified, or an award made, by an industrial authority.
12.02(2)
[Pre-1 July 88 funding amounts]
Subject to subregulation (3), the following amounts are to be treated as pre-1 July 88 funding amounts for the purposes of paragraph 342(2)(a) of the Act:
(a)
a late payment amount;
(b)
a shortfall-in-assets amount.
12.02(3)
[Late payment amount sufficient]
If:
(a)
the pre-1 July 88 funding amount of a defined benefit fund includes a late payment amount; and
(b)
that late payment amount is sufficient to fund the liabilities of the fund in relation to accrued benefits of the members of the fund;
the pre-1 July 88 funding amount must not include a shortfall-in-assets amount.
REGULATION 12.03
SHORTFALL-IN-ASSETS AMOUNT - CALCULATION
12.03(1)
[Determination of shortfall-in-assets amount]
The shortfall-in-assets amount in respect of a superannuation fund is the amount determined by an actuary as the lesser of the amounts calculated in accordance with the following formulas:
Note: A shortfall-in-assets amount is the amount of any deficiency in a superannuation fund as at 30 June 1988, other than a deficiency that is the result of contributions that are due, but have not been paid, to the fund.
12.03(2)
[Definitions]
In subregulation (1), in relation to a superannuation fund:
actuarially determined value of fund assets
means the value of the assets of the fund as at 30 June 1988, including any late payment amount, that is determined by an actuary using a method that the actuary certifies:
(a)
is consistent with the method used in the last actuarial investigation of the fund that was completed before 25 May 1988; and
(b)
as determining a value that is comparable to the value of the assets determined in that actuarial investigation.
net market value of fund assets
means the amount that, having regard to matters specified in regulation 12.04, could reasonably be estimated to be obtained from disposal of the assets of the fund, and includes any late payment amount.
value A of accrued benefits
has the meaning given by regulation 12.05.
value B of accrued benefits
has the meaning given by regulation 12.06.
12.03(3)
[Altered rules and benefit amounts to be disregarded]
For the purposes of this regulation:
(a)
an alteration made after 25 May 1988 to the governing rules of a superannuation fund that relates to benefits payable to members of the fund is to be disregarded unless the alteration is a prescribed event; and
(b)
in the case of the calculation of a shortfall-in-assets amount in respect of a member of a superannuation fund who is an associate of an employer, any amount of benefits in respect of the member that is attributable to the exercise of discretion by, or on behalf of, the trustee of the fund is to be disregarded.
REGULATION 12.04
12.04
ESTIMATION OF NET MARKET VALUE OF FUND ASSETS
For the purposes of the definition of
net market value of fund assets
in subregulation 12.03(2), the following matters are specified:
(a)
the assumptions that, when the assets are sold:
(i)
the buyer and seller of the assets are willing, but not anxious, to buy and sell the assets; and
(ii)
there is a period in which to negotiate the sale that is reasonable, having regard to the nature and situation of the assets and the state of the market for assets of the same kind; and
(iii)
the assets will be reasonably exposed to the market; and
(iv)
no account is taken of the value or other advantage or benefit, additional to market value, to the buyer incidental to ownership of the assets;
(b)
the value of any estate in the property comprising the assets that is not held by the trustee in the capacity of trustee;
(c)
deduction of the costs of disposing of the assets from the proceeds of the disposal.
REGULATION 12.05
VALUE A OF ACCRUED BENEFITS
12.05(1)
[Accrued benefits as at 30 June 1988]
Value A of accrued benefits in relation to a superannuation fund is the total value of accrued benefits in respect of all members of the fund as at 30 June 1988 that is calculated in accordance with regulation 12.07.
12.05(2)
[Calculation assumptions]
For the purposes of calculating value A of accrued benefits, the following assumptions apply:
(a)
that a member of the superannuation fund will not die or become disabled before the member's normal retirement from the work force;
(b)
that the governing rules of the fund providing for benefits and the amounts of the benefits vested in members of the fund are those rules and amounts as at 25 May l988;
(c)
that the value of the accrued benefits in the fund in respect of a member of the fund is not less than the amount of benefits vested in the member on 30 June 1988;
(d)
if the governing rules of the fund provide for adjustment of pension benefits to compensate for changes in the cost of living at the discretion of the trustees of the fund, that the rules providing for adjustment are disregarded, unless:
(i)
all pension benefits have been increased under that rule on at least 3 occasions before 30 June l988; and
(ii)
at least 1 of those increases occurred in the period from the beginning of 1 July 1985 to the end of 30 June 1988.
12.05(3)
[Elements of actuarial basis for calculation]
Subject to this regulation, the elements of the actuarial basis for the calculation of value A of accrued benefits in respect of a superannuation fund are taken to be those used in the last actuarial investigation of the fund that was completed before 25 May 1988.
12.05(4)
[Actuarial investigation not completed before 25 May 1988]
If an actuarial investigation of a superannuation fund was not completed before 25 May 1988, a superannuation actuary must submit to APRA in writing the elements that the superannuation actuary proposes to use in respect of the fund:
(a)
for the purposes of regulation 12.07; and
(b)
in substitution for the elements referred to in that subregulation.
History
Reg 12.05(4) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" and by substituting "the superannuation actuary" for "the actuary", effective 1 July 2013.
Reg 12.05(4) amended by SR No 193 of 1998.
12.05(5)
[Proposed element of actuarial basis for calculation]
APRA must approve a proposed element of the actuarial basis for the calculation of value A of accrued benefits in respect of a superannuation fund if APRA is satisfied that the proposed element corresponds reasonably closely to the element that would have been used if an actuarial investigation had been made into the fund.
History
Reg 12.05(5) amended by SR No 193 of 1998.
12.05(6)
[Special circumstances for approval of proposed element]
In special circumstances, APRA may approve a proposed element of the actuarial basis for the calculation of value A of accrued benefits in respect of a superannuation fund if APRA is satisfied that application of the proposed element is reasonable in those circumstances.
History
Reg 12.05(6) amended by SR No 193 of 1998.
12.05(7)
[Tax liability]
Liability to pay tax on income of the fund is not a special circumstance for the purposes of subregulation (6) if the liability results directly from an amendment of the Tax Act made by the Taxation Laws Amendment (Superannuation) Act 1989.
REGULATION 12.06
VALUE B OF ACCRUED BENEFITS
12.06(1)
[Accrued benefits as at 30 June 1988]
Value B of accrued benefits in relation to a superannuation fund is the total value of accrued benefits in respect of all members of the fund as at 30 June 1988 that is calculated in accordance with regulation 12.07.
12.06(2)
[Calculation assumptions]
For the purposes of calculating value B of accrued benefits, the following assumptions apply:
(a)
that a member of the superannuation fund will not:
(i)
die, or become disabled, before the member's normal retirement from the work force; or
(ii)
withdraw from the fund, or retire from the work force, before the age of the member's normal retirement;
(b)
that the governing rules of the fund providing for benefits and the amounts of the benefits vested in the member are those rules and amounts as at 25 May 1988;
(c)
that the value of the accrued benefits in the fund in respect of the member is not less than the amount of benefits vested in the member on 30 June 1988;
(d)
that the annual earning rate of the fund, net of administrative or other costs, is 10%;
(e)
that if the governing rules of the fund provide for adjustment of pension benefits to compensate for changes in the cost of living at the discretion of the trustees of the fund - the adjustment factor is the lesser of:
(i)
the average annual percentage increase in pension benefits (if any) in the period from the beginning of 1 July 1985 to the end of 30 June 1988; and
(ii)
7% annually;
(f)
if the governing rules of the fund provide for adjustment of benefits to compensate for changes in the cost of living, other than at the discretion of the trustee of the fund, that the adjustment factor is 7% annually;
(g)
if the governing rules of the fund provide for adjustment of benefits in accordance with the amount or rate of salary of members of the fund, that the amount or rate increases by 8.5% annually;
(h)
that the probability of survival of the member after the member's retirement from the work force is ascertained in accordance with the Australian Life Tables 1985-1987 prepared by the Australian Government Actuary.
12.06(3)
[Elements of actuarial basis for calculation]
Subject to this regulation, the elements of the actuarial basis for the calculation of value B of accrued benefits in respect of a superannuation fund are taken to be those used in the last actuarial investigation of the fund that was completed before 25 May 1988.
12.06(4)
[Substitution of assumptions or elements]
In special circumstances, a superannuation actuary may submit to APRA in writing a proposal to substitute:
(a)
an assumption stated in paragraph (2)(d), (e), (f), (g) or (h) in respect of a superannuation fund with another assumption; or
(b)
an element referred to in subregulation (3) in respect of a superannuation fund with another element.
History
Reg 12.06(4) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
Reg 12.06(4) amended by SR No 193 of 1998.
12.06(5)
[Approval of substitution by APRA]
APRA may approve a proposed assumption or element mentioned in subregulation (4) if APRA is satisfied that application of that assumption or element would be reasonable in the circumstances.
History
Reg 12.06(5) amended by SR No 193 of 1998, reg 37.1 and 37.2, by substituting "APRA" for "The Commissioner" and "the Commissioner", effective 1 July 1998. For transitional provisions of SR No 199 of 1998 affecting the amendments made by SR No 193 of 1998, see history note under reg 1.04(2).
12.06(6)
[Tax liability]
Liability to pay tax on income of the fund is not a special circumstance for the purposes of subregulation (4) if the liability results directly from an amendment of the Tax Act made by the Taxation Laws Amendment (Superannuation) Act 1989.
REGULATION 12.07
12.07
CALCULATION OF VALUE A OR B OF ACCRUED BENEFITS
For the purposes of regulations 12.05 and 12.06, the value of the benefits payable to a member in respect of a period after 30 June 1988 is the total of the amounts in respect of each financial year, or part of a financial year, in the period that are determined by a superannuation actuary:
(a)
in respect of each kind of benefit that the member is, or may be, entitled to receive from the superannuation fund; and
(b)
by using the following formula:
| P1 × Net present value × P2 |
| |
where: |
| |
P1
is the probability, determined by the superannuation actuary, of the member being paid a benefit in each financial year, or part of a financial year; and |
| |
Net present value
is the value of each benefit to the fund, being an amount that is determined by the superannuation actuary as at 30 June 1988: |
| |
(i) |
in the case of the calculation of value A of accrued benefits - using the earning rate of the fund used in the actuarial investigation of the fund mentioned in subregulation 12.05(3); and |
| |
(ii) |
in the case of the calculation of value B of accrued benefits - using the earning rate of the fund referred to in paragraph 12.06(2)(d); and |
| |
P2
is a proportion that is calculated: |
| |
(i) |
in the case of the calculation of value A of accrued benefits - using the method applied in the actuarial investigation of the fund mentioned in subregulation 12.05(3); and |
| |
(ii) |
in the case of the calculation of value B of accrued benefits - as follows: |
completed period of fund membership
in relation to the member at 30 June 1988
completed period of fund membership in relation to
the member at the members date of exit from the fund |
| |
where a reference to
completed period of fund membership
in relation to the member at a particular time is a reference to the period from the time at which the member joined, or last joined, the fund to the particular time. |
History
Reg 12.07 amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary" and by substituting "the actuary" for "the superannuation actuary", effective 1 July 2013.
REGULATION 12.08
12.08
DATE BEFORE WHICH APPLICATIONS TO BE MADE
For the purposes of paragraph 342(3)(b) of the Act, the day on or before which an application in relation to a fund must be made is the day specified for that purpose by APRA by notice in writing given to the trustee of the fund.
History
Reg 12.08 amended by SR No 193 of 1998, reg 38.1, by substituting ``APRA'' for ``the Commissioner'', effective 1 July 1998. For transitional provisions of SR No 199 of 1998 affecting the amendments made by SR No 193 of 1998, see history note under reg 1.04(2).
Reg 12.08 substituted by SR No 430 of 1995; amended by SR No 432 of 1994.
REGULATION 12.09
APPLICATION FEES
12.09(1)
[Prescribed fees]
For the purposes of sub-paragraph 342(3)(d)(ii) of the Act, the following application fees are prescribed:
(a)
if the application is for a PJFC that consists of a late payment amount or is the aggregate of late payment amounts - $300;
(b)
subject to subregulation (2), if the application is for a PJFC that consists of a shortfall-in-assets amount or is the aggregate of shortfall-in-assets amounts, an amount calculated using the formula:
| 0.002 × the amount of the PJFC; |
(c)
if an application is for a PJFC that includes:
(i)
a late payment amount or the aggregate of late payment amounts; and
(ii)
a shortfall-in-assets amount or the aggregate of shortfall-in-assets amounts;
the fee prescribed in paragraph (b), as if the PJFC consisted of a shortfall-in-assets amount or the aggregate of shortfall-in-assets amounts.
12.09(2)
[Fee for shortfall-in-assets applications]
A fee under paragraph (1)(b) must not be:
(a)
less than $500; or
(b)
more than $5,000.
REGULATION 12.10
PRESCRIBED EVENTS FOR THE PURPOSES OF PARAGRAPH 342(4)(a) OF THE ACT
12.10(1)
For the purposes of paragraph 342(4)(a) of the Act, a prescribed event in relation to a superannuation fund is any alteration of the governing rules of the fund having the effect that calculation of a pre-1 July 88 funding amount under the rules as so altered produces an amount that is less than the amount calculated using the formula:
Graphic
12.10(2)
A reference in subregulation (1) to a PJFC is a reference to the amount of the PJFC multiplied by the indexation factor calculated in accordance with Subdivision 960-M of the Tax Act.
History
Reg 12.10(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 90, by substituting "Subdivision 960-M" for "subsection 159SG(2)", effective 1 July 2007.
REGULATION 12.11
WHEN AND HOW APRA TO BE NOTIFIED OF PRESCRIBED EVENTS
12.11(1)
[Time to give notice]
For the purposes of paragraph 342(4)(b) of the Act, if a prescribed event occurs in relation to a superannuation fund, the trustee of the fund must give notice in writing to APRA of the event not later than:
(a)
a date 3 months after the date of the occurrence; or
(b)
31 March 1995;
whichever happens last.
History
Reg 12.11(1) amended by SR No 432 of 1994 and SR No 193 of 1998.
12.11(2)
[Statements to accompany notice]
The notice must have with it:
(a)
a statement of an amount that is certified by a superannuation actuary as the amount by which the pre-1 July 88 funding credits available in the fund is reduced as a result of the prescribed event; and
(b)
a statement by the trustees of the fund that describes the prescribed event in sufficient detail to allow the statement to be properly considered.
History
Reg 12.11(2) amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
Reg 12.11(2) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 91, by substituting "pre-1 July 88 funding credits available in" for "pre-1 July 88 funding credit balance of" in para (a), effective 1 July 2007.
12.11(3)
[Extension of time to give notice]
In spite of subregulation (1), APRA may give notice in writing to the trustee of a superannuation fund extending the time in which the trustee must give notice to APRA of a prescribed event.
History
Reg 12.11(3) amended by SR No 193 of 1998.
REGULATION 12.12
TRANSFER OF PJFCs - TRUSTEES OF TRANSFEROR FUNDS
12.12(1)
[Application for approval of transfer]
If the trustee of a defined benefit fund proposes to transfer a PJFC, or part of a PJFC, from the fund (in this regulation called
the transferor fund
) to another superannuation fund (in this regulation called
the transferee fund
), the trustee may apply in writing to APRA to approve the transfer.
History
Reg 12.12(1) amended by SR No 193 of 1998.
12.12(2)
[Requirements for approval]
APRA may approve an application only if:
(a)
the requirements specified in regulation 12.15 are satisfied; or
(b)
if a requirement of that kind is not satisfied - APRA is satisfied that, because of special circumstances, the requirement does not need to be satisfied.
History
Reg 12.12(2) amended by SR No 193 of 1998.
12.12(3)
[Amount of PJFC to be transferred]
The amount of a PJFC to be transferred must not exceed the lesser of:
(a)
the amount of the liability in respect of benefits to be transferred to the transferee fund, being benefits accrued before 1 July 1988; and
(b)
the amount of any pre-1 July 88 funding credits available in the transferor fund immediately before the transfer.
History
Reg 12.12(3) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 92, by substituting "pre-1 July 88 funding credits available" for "pre-1 July 88 funding credit balance" in para (b), effective 1 July 2007.
12.12(4)
[Notice of approval]
As soon as practicable after a decision is made by APRA to approve a transfer, APRA must give notice in writing of the approval to the trustees of both the transferor fund and the transferee fund.
History
Reg 12.12(4) amended by SR No 193 of 1998.
REGULATION 12.13
TRANSFER OF PJFCs - TRUSTEES OF TRANSFEREE FUNDS
12.13(1)
[Application for approval of transfer]
The trustee of a superannuation fund (in this regulation called
the transferee fund
) may apply in writing to APRA to approve the transfer of a PJFC, or part of a PJFC, from a defined benefit fund (in this regulation called
the transferor fund
), if:
(a)
the application arises as a direct result of the transfer of a member or members of the transferor fund, and the benefit entitlements of that member or those members, to 1 or more transferee funds following reconstitution of the transferor fund into the transferee fund or transferee funds; or
(b)
the application arises as a direct result of the transfer of a member or members of a transferor fund, and the benefit entitlements of that member or those members, to the transferee fund following the merger of 2 or more transferor funds into the transferee fund; or
(c)
the transferee fund:
(i)
was constituted on or after 1 July 1988; and
(ii)
assumed responsibility for the liabilities, but not all the assets, in respect of contributions for superannuation purposes relating to the employment of persons before that date, being contributions that were made to a transferor fund.
History
Reg 12.13(1) amended by SR No 193 of 1998.
12.13(2)
[Requirements for approval]
APRA may approve an application only if:
(a)
the requirements specified in regulation 12.15 are satisfied; or
(b)
where a requirement of that kind is not satisfied - APRA is satisfied that, because of special circumstances, the requirement does not need to be satisfied.
History
Reg 12.13(2) amended by SR No 193 of 1998.
12.13(3)
[Amount of PJFC to be transferred]
The amount of a PJFC to be transferred must not exceed the lesser of:
(a)
the amount of the liability in respect of benefits to be transferred to the transferee fund, being benefits accrued before 1 July l988; and
(b)
the amount of any pre-1 July 88 funding credits available in the transferor fund immediately before the transfer.
History
Reg 12.13(3) amended by SLI No 74 of 2007, reg 5 and Sch 3 item 93, by substituting "pre-1 July 88 funding credits available" for "pre-1 July 88 funding credit balance" in para (b), effective 1 July 2007.
12.13(4)
[Notice of approval]
As soon as practicable after a decision is made by APRA to approve a transfer, APRA must give notice in writing of the approval to the trustees of both the transferee fund and the transferor fund.
History
Reg 12.13(4) amended by SR No 193 of 1998.
REGULATION 12.14
12.14
TRANSFER OF PJFCs - REVOCATION OF APPROVAL
APRA may revoke an approval given under regulation 12.12 or 12.13 only if:
(a)
information about matters relating to the application for approval that was not available to APRA when APRA made the decision to approve the application becomes available to APRA; and
(b)
after considering that information, APRA is satisfied that:
(i)
a requirement specified in regulation 12.15 (other than a requirement that does not need to be satisfied under paragraph 12.12(2)(b) or 12.13(2)(b)) was not satisfied in relation to the transfer; or
(ii)
in the case of a requirement that, under paragraph 12.12(2)(b) or 12.13(2)(b), does not need to be satisfied - there were no special circumstances to justify the application of that paragraph.
History
Reg 12.14 amended by SR No 193 of 1998, reg 42.1 and 42.2, by substituting ``APRA'' for ``The Commissioner'' and ``the Commissioner'' in para (a) and (b) (wherever occurring), effective 1 July 1998. For transitional provisions of SR No 199 of 1998 affecting the amendments made by SR No 193 of 1998, see history note under reg 1.04(2).
REGULATION 12.15
12.15
TRANSFER OF PJFCs - REQUIREMENTS TO BE SATISFIED
The requirements referred to in paragraph 12.12(2)(a) and 12.13(2)(a) are that:
(a)
a superannuation actuary certifies that the amount of the PJFC to be transferred is reasonable having regard to:
(i)
the amount of unfunded liability to be transferred from the transferor fund; and
(ii)
the amount of the remaining unfunded liability of that fund;
in relation to the amount of benefits that have accrued before 1 July 1988; and
(b)
the trustee of the transferor fund has been given notice by APRA of the grant of the PJFC under subsection 342(2) of the Act; and
(c)
at the date of the transfer the amount of the PJFC to be transferred is equal to or less than the amount of the pre-1 July 88 funding credits available in the transferor fund; and
(d)
the transferee fund is a complying superannuation fund, in accordance with section 45 of the Act, in relation to the year of income in which the transfer is to take place; and
(e)
a superannuation actuary certifies that sufficient information is available about the accrued entitlements of members of the transferor fund as at 30 June 1988 to enable calculations to be made after that date to ascertain whether a prescribed event has occurred.
History
Reg 12.15 amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
Reg 12.15 amended by SLI No 74 of 2007, reg 5 and Sch 3 item 94, by substituting "pre-1 July 88 funding credits available in" for "pre-1 July 88 funding credit balance of" in para (c), effective 1 July 2007.
Reg 12.15 amended by SR No 193 of 1998.
12.16
(Repealed) REGULATION 12.16 NOTICE OF REVIEWABLE DECISIONS AND REASONS FOR THOSE DECISIONS
(Omitted by SR No 344 of 1996)
12.17
(Repealed) REGULATION 12.17 RECONSIDERATION OF CERTAIN DECISIONS
(Omitted by SR No 344 of 1996)
12.18
(Repealed) REGULATION 12.18 REVIEW BY TRIBUNAL OF RECONSIDERED DECISIONS
(Omitted by SR No 344 of 1996)
REGULATION 12.19
12.19
ACTUARIES TO CERTIFY IN RELATION TO DETERMINATIONS
A superannuation actuary who makes a determination under this Part must certify that the determination:
(a)
is consistent with this Part; and
(b)
except to the extent (if any) that this Part otherwise requires, is made in accordance with a method that The Institute of Actuaries of Australia would accept as a proper actuarial practice.
History
Reg 12.19 amended by SLI No 155 of 2013, reg 4 and Sch 2 item 20, by substituting "a superannuation actuary" for "an actuary", effective 1 July 2013.
REGULATION 12.20
12.20
SUBSTITUTED ACCOUNTING PERIODS
The trustee of a superannuation fund for which the Commissioner of Taxation has approved a 12-month period as a substituted accounting period for the purposes of section 18 of the Tax Act may:
(a)
treat a reference in this Part to 30 June 1988 as a reference to the last day of the substituted accounting period corresponding to the year of income that ended on 30 June 1988; and
(b)
treat a reference in this Part to 1 July 1988 as a reference to the day after that day.
PART 12A - TRANS-TASMAN RETIREMENT SAVINGS PORTABILITY
History
Pt 12A inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
Division 1 - General
History
Div 1 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.01
12A.01
PURPOSE OF PART 12A
This Part sets out matters to implement the Arrangement between the Government of Australia and the Government of New Zealand on Trans-Tasman Retirement Savings Portability, signed at Brisbane on 16 July 2009.
Note 1:
The Arrangement does not cover all complying superannuation funds. A number of types of superannuation funds and schemes are excluded (for example, self managed superannuation funds and defined benefit interests in defined benefit funds): see regulation 12A.03.
Note 2:
Amounts covered by the Arrangement are:
(a) payments received by complying superannuation funds from KiwiSaver schemes on or after the day the Arrangement comes into force for Australia; and
(b) superannuation benefits paid to KiwiSaver scheme providers by complying superannuation funds on or after the day the Arrangement comes into force for Australia; and
(c) amounts paid between participating Australian funds if the member's benefits include any New Zealand-sourced amount; and
(d) superannuation benefits paid to an individual from an interest that includes any New Zealand-sourced amount; and
(e) amounts paid by the Commissioner of Taxation to a KiwiSaver scheme provider under the Superannuation (Unclaimed Money and Lost Members) Act 1999.
See regulation 12A.03.
Note 3:
The matters in this Part are also relevant to Division 312 of Part 3-30 of the Income Tax Assessment Act 1997, which provides for the taxation treatment of retirement savings to which the Arrangement relates.
History
Reg 12A.01 amended by FRLI No F2021L01616, reg 4 and Sch 1 items 4 and 5, by substituting "amount; and" for "amount." in para (d) of note 2 and inserting para (e) in note 2, effective 11 December 2021.
Reg 12A.01 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.02
12A.02
DEFINITIONS FOR PART 12A
In this Part:
Arrangement
means the Arrangement between the Government of Australia and the Government of New Zealand on Trans-Tasman Retirement Savings Portability, signed at Brisbane on 16 July 2009.
Australian-sourced amount
means:
(a)
an amount that:
(i)
was originally accrued in a complying superannuation fund; and
(ii)
is subsequently received by a KiwiSaver scheme; and
(iii)
is identified by the receiving KiwiSaver scheme as an amount described in subparagraph (i); or
(b)
an amount that:
(i)
is paid by a KiwiSaver scheme provider to a complying superannuation fund; and
(ii)
is identified by the complying superannuation fund as an amount described in subparagraph (a)(i); or
(c)
an amount that:
(i)
is paid to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii)
is identified by the Commissioner of Taxation as an amount described in subparagraph (a)(i); or
(d)
an amount that:
(i)
is paid by the Commissioner of Taxation to a complying superannuation fund under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii)
is identified by the complying superannuation fund as an amount described in subparagraph (a)(i).
Note:
As part of trans-Tasman retirement savings portability, an Australian-sourced amount may eventually be received by the same complying superannuation fund in which it originally accrued or another complying superannuation fund. It will still be an Australian-sourced amount at that time.
History
Definition of "Australian-sourced amount" substituted by FRLI No F2021L01616, reg 4 and Sch 1 item 6, effective 11 December 2021. The definition formerly read:
Australian-sourced amount
means an amount that:
(a)
was originally accrued in a complying superannuation fund; and
(b)
is subsequently received by a KiwiSaver scheme; and
(c)
is identified by the receiving KiwiSaver scheme as an amount described in paragraph (a).
Note:
As part of trans-Tasman retirement savings portability, an Australian-sourced amount may eventually be received by the same complying superannuation fund in which it originally accrued or another complying superannuation fund. It will still be an Australian-sourced amount at that time.
KiwiSaver scheme
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
KiwiSaver scheme provider
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.
New Zealand-sourced amount
means:
(a)
an amount that:
(i)
was originally accrued in a KiwiSaver scheme; and
(ii)
is subsequently received by a complying superannuation fund; and
(iii)
is identified by the complying superannuation fund as an amount described in subparagraph (i); or
(b)
an amount that:
(i)
is paid by a complying superannuation fund to a KiwiSaver scheme provider; and
(ii)
is identified by the KiwiSaver scheme provider as an amount described in subparagraph (a)(i); or
(c)
an amount that:
(i)
is paid to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii)
is identified by the Commissioner of Taxation as an amount described in subparagraph (a)(i); or
(d)
an amount that:
(i)
is paid by the Commissioner of Taxation to a KiwiSaver scheme provider under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii)
is identified by the KiwiSaver scheme provider as an amount described in subparagraph (a)(i).
History
Definition of "New Zealand-sourced amount" substituted by FRLI No F2021L01616, reg 4 and Sch 1 item 7, effective 11 December 2021. The definition formerly read:
New Zealand-sourced amount
means an amount that:
(a)
was originally accrued in a KiwiSaver scheme; and
(b)
is subsequently received by a complying superannuation fund; and
(c)
is identified by the complying superannuation fund as an amount described in paragraph (a).
returning New Zealand-sourced amount
means a New Zealand-sourced amount that has been received by the same, or another, complying superannuation fund for the second or subsequent time.
Note 1:
As part of trans-Tasman retirement savings portability, a New Zealand-sourced amount may eventually be received by the same KiwiSaver scheme in which it originally accrued or another KiwiSaver scheme. It will still be a New Zealand-sourced amount at that time.
Note 2:
If retirement savings move between Australia and New Zealand on more than one occasion, it is likely that:
(a) a part of the savings will be a New Zealand-sourced amount because that part was originally accrued in a KiwiSaver scheme; and
(b) a part of the savings will be an Australian-sourced amount because that part was originally accrued in a complying superannuation fund.
tax free component of an Australian-sourced amount
means an amount that:
(a)
is, or is part of, an Australian-sourced amount; and
(b)
was, or was included in, the tax free component of the member's former superannuation interest in Australia before the Australian-sourced amount was paid to a KiwiSaver scheme.
Note:
The Act defines other expressions used in this Part.
History
Reg 12A.02 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.03
PAYMENTS TO WHICH THIS PART APPLIES
12A.03(1)
This Part applies in relation to:
(a)
a payment made between a complying superannuation fund and a KiwiSaver scheme; and
(b)
a payment made between complying superannuation funds that includes a New Zealand-sourced amount; and
(c)
a payment between complying funds if:
(i)
the member has an interest in the complying superannuation fund that is, or includes, a New Zealand-sourced amount; and
(ii)
the payment does not include a New Zealand-sourced amount.
12A.03(2)
However, this Part does not apply in relation to the following:
(a)
a defined benefit interest in a defined benefit fund;
(b)
an unfunded public sector superannuation scheme;
(c)
a self managed superannuation fund.
12A.03(3)
Also, this Part does not apply in relation to:
(a)
a payment made by a complying superannuation fund to the extent that the payment contains an element untaxed in the fund (within the meaning given by subsection 995-1(1) of the 1997 Tax Act); and
(b)
benefits that are being paid as a pension.
History
Reg 12A.03 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
Division 2 - New Zealand-sourced amounts
History
Div 2 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.04
12A.04
APPLICATION OF DIVISION 2
This Division applies in relation to:
(a)
a New Zealand-sourced amount received by a complying superannuation fund from a KiwiSaver scheme; and
(b)
the treatment of a New Zealand-sourced amount in a complying superannuation fund.
History
Reg 12A.04 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.05
12A.05
TREATMENT OF NEW ZEALAND-SOURCED AMOUNTS
For the purposes of implementing the Arrangement:
(a)
Part 1 of these Regulations applies in relation to a New Zealand-sourced amount received by a complying superannuation fund from a KiwiSaver scheme; and
(b)
the application of Part 1 is modified to the extent necessary to ensure that the Part describes concepts, processes and other matters sufficiently to implement the Arrangement.
History
Reg 12A.05 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.06
BENEFIT PROTECTION STANDARDS
12A.06(1)
For the purposes of implementing the Arrangement, Part 5 of these Regulations, as affected by subregulations (2) to (4), applies in relation to:
(a)
a New Zealand-sourced amount received by a complying superannuation fund; and
(b)
the treatment of a New Zealand-sourced amount in a complying superannuation fund.
Note:
In order to implement the Arrangement, it is appropriate to treat a New Zealand-sourced amount as an amount that is subject to Australia's benefit protection standards, apart from any differences required by the Arrangement.
Reduction of amount of benefits
12A.06(2)
The application of Part 5 is modified to the extent necessary to ensure that, if the trustee of a complying superannuation fund is required to reduce a member's benefits in the complying superannuation fund by a particular amount, the trustee must:
(a)
first charge the amount to the member's benefits that are not New Zealand-sourced amounts; and
(b)
if the full amount cannot be charged under paragraph (a) - then charge the remainder to the member's New Zealand-sourced amounts to the extent possible.
Note:
In accordance with the Arrangement, the intention is that any decrements to retirement savings balances would first be applied to host country retirement savings before being applied to retirement savings transferred from the source country.
Separate identification of New Zealand-sourced amount
12A.06(3)
The application of Part 5 is modified to the extent necessary to ensure that the trustee of a complying superannuation fund is, at all times, required to administer a member's interest in the complying superannuation fund in a way that allows any New Zealand-sourced amount in the fund to be identified separately.
Minimum benefit
12A.06(4)
The application of Part 5 is modified to the extent necessary to ensure that a New Zealand-sourced amount in a complying superannuation fund is treated as a minimum benefit in the same way as other amounts in the fund would be treated as minimum benefits.
History
Reg 12A.06 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.07
PAYMENT STANDARDS
12A.07(1)
For the purposes of implementing the Arrangement, Part 6 of these Regulations, as affected by subregulations (2) to (8):
(a)
applies in relation to a New Zealand-sourced amount that is rolled over or transferred between complying superannuation funds; and
(b)
applies in relation to an amount to be paid from a complying superannuation fund to a KiwiSaver scheme to the extent necessary to allow the amount to be paid.
Note:
In order to implement the Arrangement, it is appropriate to treat a New Zealand-sourced amount as an amount that is subject to Australia's payment standards, apart from any differences required by the Arrangement.
No payments to self managed superannuation funds
12A.07(2)
The application of Part 6 in relation to a New Zealand-sourced amount that is rolled over or transferred between complying superannuation funds is modified to the extent necessary to prohibit the rollover or transfer of a New Zealand-sourced amount from a complying superannuation fund to a self managed superannuation fund.
No obligation to receive amount
12A.07(3)
The application of Part 6 in relation to a New Zealand-sourced amount that is rolled over or transferred between complying superannuation funds is modified to the extent necessary to ensure that it does not require the trustee of a complying superannuation fund, in any circumstances, to receive the amount.
Note:
In accordance with the Arrangement, arrangements to enhance trans-Tasman portability will be voluntary for providers as to whether they will accept transferred retirement savings.
Separate identification of New Zealand-sourced amount
12A.07(4)
The application of Part 6 in relation to a New Zealand-sourced amount that is rolled over or transferred between complying superannuation funds is modified to the extent necessary to ensure that the trustee of a complying superannuation fund is, at all times, required to administer a member's interest in the complying superannuation fund in a way that allows any New Zealand-sourced amount in the fund to be identified separately.
Condition of release
12A.07(5)
The application of Part 6 in relation to an amount to be paid from a complying superannuation fund to a KiwiSaver scheme is modified to the extent necessary to ensure that the amount is to be paid if the condition of release mentioned in item 113A of Schedule 1 is satisfied, and is to be paid:
(a)
as a single lump sum that is at least the amount of the member's withdrawal benefit in the fund; or
(b)
if the fund receives any combination of contributions, transfers and rollovers after cashing the benefits:
(i)
in a way that ensures that an amount that is at least the amount of the member's withdrawal benefit in the fund is cashed; and
(ii)
without requiring an additional application from the member.
Division 6.7 (spouse contributions-splitting amounts)
12A.07(6)
Division 6.7 does not apply to a New Zealand-sourced amount.
Reduction of amount of benefits
12A.07(7)
The application of Part 6 is modified to the extent necessary to ensure that, if the trustee of a complying superannuation fund is required to reduce a member's benefits in the complying superannuation fund by a particular amount, the trustee must:
(a)
first charge the amount to the member's benefits that are not New Zealand-sourced amounts; and
(b)
if the full amount cannot be charged under paragraph (a) - then charge the remainder to the member's benefits that are New Zealand-sourced amounts to the extent possible.
Note:
In accordance with the Arrangement, the intention is that any decrements to retirement savings balances would first be applied to host country retirement savings before being applied to retirement savings transferred from the source country.
Preserved benefits
12A.07(8)
The application of Part 6 is modified to the extent necessary to ensure that a New Zealand-sourced amount in a complying superannuation fund is treated as preserved benefits in the same way as other amountsin the fund would be treated as preserved benefits.
History
Reg 12A.07 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.08
CONTRIBUTION AND BENEFIT ACCRUAL STANDARDS
12A.08(1)
For the purposes of implementing the Arrangement, Part 7 of these Regulations, as affected by subregulations (2) to (7), applies in relation to a request to a complying superannuation fund to receive an amount from a KiwiSaver scheme.
Note:
In order to implement the Arrangement, it is appropriate to treat a New Zealand-sourced amount as an amount that is subject to Australia's contribution and benefit accrual standards, apart from any differences required by the Arrangement.
Additional information
12A.08(2)
The application of Part 7 is modified to the extent necessary to ensure that, if a request is made to a complying superannuation fund to receive an amount from a KiwiSaver scheme:
(a)
the trustee of the complying superannuation fund may request the following information (in addition to other information that the trustee may require under Part 7):
(i)
details of any New Zealand sourced amount, returning New Zealand-sourced amount or Australian-sourced amount that forms part of the amount to be received;
(ii)
the amount of any tax free component of an Australian-sourced amount;
(iii)
any amounts that were restricted non-preserved benefits or unrestricted non-preserved benefits;
(iv)
any other information the trustee reasonably requires; and
(b)
the KiwiSaver scheme or the member may give the trustee of the complying superannuation fund any details requested under paragraph (a); and
(c)
any information requested under paragraph (a), or provided by the KiwiSaver scheme provider or the member under paragraph (b), is given to the trustee of the complying superannuation fund before the trustee decides whether to receive the amount from the KiwiSaver scheme.
Separate identification of New Zealand-sourced amount
12A.08(3)
The application of Part 7 is modified to the extent necessary to ensure that the trustee of a complying superannuation fund is, at all times, required to administer a member's interest in the complying superannuation fund in a way that allows any New Zealand-sourced amount in the fund to be identified separately.
No obligation to receive amount
12A.08(4)
The application of Part 7 is modified to the extent necessary to ensure that it does not require the trustee of a complying superannuation fund, in any circumstances, to receive an amount from a KiwiSaver scheme.
Note:
In accordance with the Arrangement, arrangements to enhance trans-Tasman portability will be voluntary for providers as to whether they will accept transferred retirement savings.
Member contribution
12A.08(5)
The application of Part 7 is modified to the extent necessary to ensure that an amount received by a complying superannuation fund from a KiwiSaver scheme is treated as a contribution and a member contribution.
12A.08(6)
(Repealed by FRLI No F2017L00321)
History
Reg 12A.08(6) repealed by FRLI No F2017L00321, reg 4 and Sch 3 item 13, effective 28 March 2017. Reg 12A.08(6) formerly read:
12A.08(6)
The application of Part 7 is modified to the extent necessary to ensure that if an amount (other than a returning New Zealand-sourced amount or an Australian-sourced amount) that would be received by a complying superannuation fund from a KiwiSaver scheme exceeds the amounts specified for the member in subregulation 7.04(3), the trustee of the fund must ensure that none of the amount is received.
12A.08(7)
(Repealed by FRLI No F2017L00321)
History
Reg 12A.08(7) repealed by FRLI No F2017L00321, reg 4 and Sch 3 item 13, effective 28 March 2017. Reg 12A.08(7) formerly read:
12A.08(7)
The application of Part 7 is modified to the extent necessary to ensure that:
(a)
a returning New Zealand-sourced amount that is received by a complying superannuation fund is not treated as a fund-capped contribution; and
(b)
an Australian-sourced amount that forms part of an amount received by a complying superannuation fund from a KiwiSaver scheme is not treated as a fund-capped contribution.
History
Reg 12A.08 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
Division 3 - Payment of amount to KiwiSaver scheme
History
Div 3 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.09
12A.09
APPLICATION OF DIVISION 3
This Division applies in relation to an amount to be paid to a KiwiSaver scheme by a complying superannuation fund.
History
Reg 12A.09 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.10
PAYMENT
12A.10(1)
The application of these Regulations in relation to the payment is modified to the extent necessary to ensure that they do not prevent the payment from being made in the manner described in this regulation.
Note:
In accordance with the Arrangement, arrangements to enhance trans-Tasman portability will be voluntary for individuals as to whether they transfer their retirement savings between Australia and New Zealand.
Payment of whole of withdrawal benefit
12A.10(2)
The application of these Regulations is modified to the extent necessary to ensure that they:
(a)
permit the trustee of a complying superannuation fund to pay the whole of a member's withdrawal benefit to a KiwiSaver scheme; and
(b)
prohibit the trustee, in any circumstances, from paying only a part of a member's withdrawal benefit to a KiwiSaver scheme.
Information before payment can be made
12A.10(3)
The application of these Regulations is modified to the extent necessary to ensure that they prevent the trustee of a complying superannuation fund, in any circumstances, from paying an amount to a KiwiSaver scheme until the trustee is satisfied about the following matters:
(a)
the member has emigrated permanently to New Zealand;
(b)
the member has given the trustee:
(i)
a statutory declaration stating that the member has emigrated permanently to New Zealand; and
(ii)
proof of residence at an address in New Zealand following the member's emigration to New Zealand;
(c)
the member has requested and consented to the payment of the whole of the member's withdrawal benefit;
(d)
the member has opened a KiwiSaver scheme account;
(e)
the trustee has been given details of the KiwiSaver scheme and the account number to which the amount is to be paid;
(f)
the KiwiSaver scheme provider will accept the amount.
12A.10(4)
For subregulation (3), the application of these Regulations is modified to the extent necessary to ensure that the trustee may require that a document or other evidence or information is verified by oath, affirmation or statutory declaration.
Payment within 30 days
12A.10(5)
The application of these Regulations is modified to the extent necessary to ensure that the trustee must pay the amount no later than 30 days after the trustee is satisfied about all of the matters mentioned in subregulation (3).
12A.10(6)
A reference in paragraph (3)(b) or subregulation (4) to a statutory declaration includes a reference to an equivalent declaration (however described) made under a law of New Zealand.
History
Reg 12A.10(6) inserted by SLI No 127 of 2014, reg 4 and Sch 5 item 1, applicable on and after 1 July 2013.
History
Reg 12A.10 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
Division 4 - Conditions of release of benefits
History
Div 4 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.11
12A.11
APPLICATION OF DIVISION 4
This Division applies in relation to a New Zealand-sourced amount in a complying superannuation fund.
History
Reg 12A.11 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
REGULATION 12A.12
Conditions of release
12A.12(1)
For the purposes of implementing the Arrangement, Schedule 1 to these Regulations, as affected by this regulation, applies in relation to a New Zealand-sourced amount in a complying superannuation fund in the same way it would apply to any other amount in the fund.
Note:
In order to implement the Arrangement, it is appropriate that a New Zealand-sourced amount in a complying superannuation fund is subject to Australia's conditions of release, apart from any differences required by the Arrangement.
12A.12(2)
The application of Schedule 1 is modified to the extent necessary to ensure that:
(a)
the New Zealand-sourced amount is not subject to the conditions of release in items 101 and 110 of the Schedule; and
(b)
item 106 of the Schedule applies to the New Zealand-sourced amount as if the reference in the item to a person's age were the age specified in subsection 7(1) of the New Zealand Superannuation and Retirement Income Act 2001 of New Zealand.
History
Reg 12A.12 inserted by SLI No 105 of 2013, reg 4 and Sch 1 item 1, effective 1 July 2013.
PART 13 - MISCELLANEOUS
(Repealed) Division 13.1 - Transitional provisions
History
Div 13.1 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007.
(Repealed) Subdivision 13.1.1 - Preliminary
History
Subdiv 13.1.1 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007.
Subdiv 13.1.1 heading amended by SR No 189 of 1994.
13.01
(Repealed) REGULATION 13.01 INTERPRETATION
(Repealed by SLI No 343 of 2007)
History
Reg 13.01 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.01 formerly read:
REGULATION 13.01 INTERPRETATION
13.01
In this Division:
applicable date
, in relation to a fund, means:
(a)
30 June l994; or
(b)
the date on which the fund's 1993-1994 year of income ends;
whichever is earlier.
commencement date
, in relation to a prescribed fund, means the date of commencement of the fund's 1994-1995 year of income.
existing management company
has the same meaning as in Division 2 of Part 31 of the Act.
Note: For definitions in Division 2 of Part 31, see section 356 of the Act.
History
Definition of ``existing management company'' inserted by SR No 189 of 1994.
existing trustee
has the same meaning as in Division 2 of Part 31 of the Act.
History
Definition of ``existing trustee'' inserted by SR No 189 of 1994.
OSS provisions
means:
(a)
in relation to a regulated superannuation fund - regulations 18C to 18P of the OSS Regulations as in force on the applicable date in relation to the fund; and
(b)
in relation to an approved deposit fund - regulation 22 of the OSS Regulations as in force on the applicable date in relation to the fund;
and the provisions of the Occupational Superannuation Standards Act 1987 under which those regulations were made.
OSS Regulations
means the Occupational Superannuation Standards Regulations.
Part 31 entity
has the same meaning as in Division 2 of Part 31 of the Act.
History
Definition of ``Part 31 entity'' inserted by SR No 189 of 1994.
prescribed fund
means:
(a)
a regulated superannuation fund; or
(b)
an approved deposit fund.
reporting period
, in relation to a prescribed fund, means a reporting period, within the meaning of Division 2 of Part II of the OSS Regulations, that commences before the commencement date in relation to the fund.
transitional period
has the same meaning as in Subdivision 2E of Part 31 of the Act.
Note: For the definition of
transitional period
, see section 373 of the Act.
History
Definition of ``transitional period'' inserted by SR No 189 of 1994.
Reg 13.01 amended by SR No 189 of 1994.
(Repealed) Subdivision 13.1.1A - Information to be given to members
History
Subdiv 13.1.1A repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007.
Subdiv 13.1.1A heading inserted by SR No 189 of 1994.
13.02
(Repealed) REGULATION 13.02 APPLICATION
(Repealed by SLI No 343 of 2007)
History
Reg 13.02 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.02 formerly read:
REGULATION 13.02 APPLICATION
13.02
This Subdivision applies to prescribed funds.
13.03
(Repealed) REGULATION 13.03 OPERATING STANDARD - OSS PROVISIONS
(Repealed by SLI No 343 of 2007)
History
Reg 13.03 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.03 formerly read:
REGULATION 13.03 OPERATING STANDARD - OSS PROVISIONS
13.03(1)
For the purposes of subsection 31(1) and 32(1) of the Act, the standard stated in subregulation (2) is applicable to the operation of a prescribed fund where it would have been a standard applicable to the operation of the fund under the OSS provisions for the fund to give information, on or after the commencement date in relation to the fund, in relation to:
(a)
the l993-l994 year of income of the fund; or
(b)
a reporting period; or
(c)
an event occurring before:
(i)
the commencement date in relation to the fund; or
(ii)
in the case of a fund that, under section 50 of the Act, is taken to be a regulated superannuation fund at all times during its pre-lodgment period - the lodgment day referred to in the relevant provision of that section;
if the OSS provisions had continued to apply to, or in relation to, the fund on and after that date.
13.03(2)
The fund must give the information in the manner, and within the time, that would have applied under the OSS provisions to the giving of the information if those provisions had continued to apply as mentioned in subregulation (1).
(Repealed) Subdivision 13.1.2 - Contribution and benefit accrual standards
History
Subdiv 13.1.2 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007.
Subdiv 13.1.2 omitted by SR No 117 of 1997.
13.04
(Repealed) REGULATION 13.04 TRANSITIONAL - PART 7
(Omitted by SR No 117 of 1997)
(Repealed) Subdivision 13.1.3 - Part 31 of the Act (transition to scheme provided for in the Act): retirement provisions
History
Subdiv 13.1.3 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007.
Subdiv 13.1.3 inserted by SR No 189 of 1994.
13.05
(Repealed) REGULATION 13.05 AMENDMENT BY TRUSTEE OF GOVERNING RULES
(Repealed by SLI No 343 of 2007)
History
Reg 13.05 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.05 formerly read:
REGULATION 13.05 AMENDMENT BY TRUSTEE OF GOVERNING RULES
13.05
For the purposes of paragraphs 358(5)(b) and 367(5)(b) of the Act:
(a)
the persons whom the trustee of the Part 31 entity must notify of amendments under paragraph 358(2)(c) or 367(2)(c) of the Act are the members of the entity; and
(b)
the trustee must give the notification within 28 days after the making of the amendments.
Reg 13.05 inserted by SR No 189 of 1994.
(Repealed) Subdivision 13.1.4 - Part 31 of the Act (transition to scheme provided for in the Act): modifications
History
Subdiv 13.1.4 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007.
Subdiv 13.1.4 inserted by SR No 189 of 1994.
13.06
(Repealed) REGULATION 13.06 APPLICATION
(Repealed by SLI No 343 of 2007)
History
Reg 13.06 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.06 formerly read:
REGULATION 13.06 APPLICATION
13.06
The modifications made by this Subdivision:
(a)
are made for the purposes of section 376 of the Act; and
(b)
apply during the transitional period.
Reg 13.06 inserted by SR No 189 of 1994.
13.07
(Repealed) REGULATION 13.07 MODIFICATIONS OF THE ACT AND THESE REGULATIONS
(Repealed by SLI No 343 of 2007)
History
Reg 13.07 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.07 formerly read:
REGULATION 13.07 MODIFICATIONS OF THE ACT AND THESE REGULATIONS
13.07(1)
The following provisions, namely:
(a)
Part 6, and sections 102, 116, 122, 123, 124, 125 and 126, of the Act; and
(b)
provisions of these Regulations made under, or for the purposes of, any provision of the Act mentioned in paragraph (a);
do not apply in relation to a Part 31 entity.
Note: The term
prescribed provisions
, as used in this regulation, is defined in subregulation (6).
13.07(2)
Subject to subregulations (3) and (4), the following prescribed provisions, namely:
(a)
section
10 so far as it relates to the definition of
relevant person
, sections
100 and
101, subsections
103(2) and (3) and
106(1) and (3), sections
119,
121,
132,
133,
147,
154,
264,
275,
310 and
312 of the Act; and
(b)
regulation
3.10;
apply in relation to a Part 31 entity as though references in those provisions to the
trustee
,
corporate trustee
or
trustees
of a fund or trust (however described), to the extent that the fund or trust is a Part 31 entity, were references to the existing management company of the Part 31 entity.
Note: The other prescribed provisions apply to the existing management company in their ordinary application.
History
Reg 13.07(2)(a) amended by SR No 21 of 2002, reg 3 and Sch 1 item 40, effective 11 March 2002, by substituting "154," for "150, 154, 155, 156,".
13.07(3)
For the purposes of subregulation (2), if a provision has a reference to
corporate trustee
and a reference or references to another trustee or other trustees, the reference:
(a)
applies in relation to the reference to
corporate trustee
; and
(b)
does not apply in relation to the other reference or references.
13.07(4)
For the purposes of subregulation (2), section
103 of the Act is modified by omitting subsection
103(2) and substituting the following subsection:
(2)
The directors of the existing management company of a Part 31 entity (within the meaning of Division 2 of Part 31) must keep, and retain for at least 10 years, the relevant minutes of all meetings of the directors at which matters affecting the entity were considered.
13.07(5)
Paragraph 346(3)(a) of the Act is modified in relation to a Part
31 entity:
(a)
by omitting from subparagraph 346(3)(a)(iii) "24; and" and substituting "24; or"; and
(b)
by inserting after subparagraph 346(3)(a)(iii) the following subparagraph:
(iv)
superannuation entities that, for the purposes of Division 2 of Part 31, are Part 31 entities within the meaning of that Division; and.
13.07(6)
In this regulation:
prescribed provisions
means:
(a)
the provisions of the Act (other than Part
31); and
(b)
the provisions of these Regulations made under a provision (other than a provision in Part
31) of the Act.
Reg 13.07 inserted by SR No 189 of 1994.
13.08
(Repealed) REGULATION 13.08 MODIFICATION OF THE ACT CORPORATIONS LAW AND REGULATIONS
(Repealed by SLI No 343 of 2007)
History
Reg 13.08 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.08 formerly read:
REGULATION 13.08 MODIFICATION OF THE ACT CORPORATIONS LAW AND REGULATIONS
13.08(1)
For the purposes of subsection 376(3) of the Act, during the transitional period (within the meaning of section 373 of the Act), the following provisions, namely:
(a)
Division 5 of Part 7.12 of the Corporations Law of the Australian Capital Territory as in force on 30 November 1993 (the A.C.T. Corporations Law); and
(b)
Part 7.12 of the Corporations Regulations of the Australian Capital Territory as in force on 30 November 1993 (the A.C.T. Corporations Regulations);
as modified in accordance with this regulation and regulation 13.09, apply in relation to a Part 31 entity.
13.08(2)
The A.C.T. Corporations Law is modified by omitting subsection 1063(2), sections 1064, 1065, 1066, 1067 and 1068, subsections 1069(8), (9), (9A) and (10) and 1070(3) and sections 1071 and 1075.
13.08(3)
The A.C.T. Corporations Law is further modified:
(a)
by omitting "an approved deed," from subsection 1069(12) and substituting "the deed ofthe entity,"; and
(b)
by omitting "or (9A)" from paragraph 1073(1A)(b); and
(c)
by inserting after section 1074 the following section:
1074A Part 31 entities to be constituted by deed
A Part 31 entity (within the meaning of Division 2 of Part 31 of the Superannuation Industry (Supervision) Act 1993) must be constituted by a deed.
13.08(4)
The A.C.T. Corporations Regulations are modified by omitting regulations 7.12.02, 7.12.03 and 7.12.04, regulations 7.12.07 to 7.12.14 (both inclusive), paragraphs 7.12.15(1)(a), (b) and (e) and 7.12.15(2)(c) and (h), subregulations 7.12.15(4), (5), (5A) and (5B), paragraphs 7.12.15(6)(ba), (c), (h) and (j) and 7.12.15(8)(e), subregulation 7.12.15(7), paragraph 7.12.15(10)(h) and regulations 7.12.15A to 7.12.17 (both inclusive).
13.08(5)
The A.C.T. Corporations Regulations are further modified:
(a)
by omitting the definitions of
approved deposit fund
and
superannuation fund
from regulation 7.12.01; and
(b)
by omitting paragraph 7.12.15(6)(b) and substituting the following paragraph:
(b)
a covenant that the management company will, on receipt of application moneys, pay the moneys to the trustee as soon as practicable after receipt and in any event by the close of business on the next working day after the day of receipt;
Reg 13.08 inserted by SR No 189 of 1994.
13.09
(Repealed) REGULATION 13.09 ACT CORPORATIONS LAW AND REGULATIONS - INTERPRETATION OF APPLIED PROVISIONS
(Repealed by SLI No 343 of 2007)
History
Reg 13.09 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.09 formerly read:
REGULATION 13.09 ACT CORPORATIONS LAW AND REGULATIONS - INTERPRETATION OF APPLIED PROVISIONS
13.09(1)
Subject to subregulation (2), the applied provisions are to be interpreted:
(a)
in the case of the whole of the applied provisions - in accordance with the Corporations Law of the Australian Capital Territory as in force on 30 November 1993; and
(b)
in the case of the part of the applied provisions that consists of Regulations - in accordance also with the Corporations Regulations of the Australian Capital Territory as in force on that date.
Note: The term
applied provisions
, as used in this regulation, is defined in subregulation (3).
13.09(2)
In the applied provisions:
approved deposit fund
has the same meaning as in the Act.
associate
has the same meaning as in the Act.
Australian bank
means an ADI.
History
Definition of "Australian bank" amended by SR No 193 of 1998, reg 44.1, by substituting "ADI" for "approved bank (within the meaning of the Act)", effective 1 July 1998. For transitional provisions of SR No 199 of 1998 affecting the amendments made by SR No 193 of 1998, see history note under reg 1.04(2).
books
has the same meaning as in the Act.
Commission
means ASIC.
History
Definition of "Commission" amended by SR No 193 of 1998, reg 44.2, by substituting "ASIC" for "the Commissioner (within the meaning of the Act)", effective 1 July 1998. For transitional provisions of SR No 199 of 1998 affecting the amendments made by SR No 193 of 1998, see history note under reg 1.04(2).
Court
has the same meaning as in the Act.
insolvent under administration
has the same meaning as in the Act.
management company
has the same meaning as in Division 2 of Part 31 of the Act.
Note: For definitions in Division 2 of Part 31, see section 356 of the Act.
prescribed interest
means a superannuation interest (within the meaning of the Act).
statement
includes:
(a)
matter that is not written but conveys a message; and
(b)
a promise, estimate or forecast.
superannuation fund
has the same meaning as in the Act.
this Law
means the Act and these Regulations.
13.09(3)
In this regulation:
applied provisions
means:
(a)
Division 5 of Part 7.12 of the Corporations Law of the Australian Capital Territory as in force on 30 November 1993; and
(b)
Part 7.12 of the Corporations Regulations of the Australian Capital Territory as in force on 30 November 1993.
Reg 13.09 inserted by SR No 189 of 1994.
13.10
(Repealed) REGULATION 13.10 OFFENCES - CORPORATIONS LAW, SECTIONS 1070, 1072 AND 1074 AS MODIFIED
(Repealed by SLI No 343 of 2007)
History
Reg 13.10 repealed by SLI No 343 of 2007, reg 3 and Sch 1 item 20, effective 24 September 2007. Reg 13.10 formerly read:
REGULATION 13.10 OFFENCES - CORPORATIONS LAW, SECTIONS 1070, 1072 AND 1074 AS MODIFIED
13.10(1)
A person who intentionally or recklessly contravenes section 1070 of the Corporations Law is guilty of an offence.
Penalty: $100
13.10(2)
A person who intentionally or recklessly contravenes section 1072 or 1074 of the Corporations Law is guilty of an offence.
Penalty: $2,500
13.10(3)
In this regulation:
Corporations Law
means the Corporations Law of the Australian Capital Territory, as modified by, and interpreted in accordance with, this Subdivision.
History
Reg 13.10 inserted by SR No 189 of 1994.
Division 13.1A - Transitional arrangements arising out of the
Superannuation Legislation Amendment Act (No 3) 1999
History
Div 13.1A inserted by SR No 239 of 1999.
REGULATION 13.10A
TRANSITIONAL ARRANGEMENT - PRESERVED OSS ACT PROVISIONS
13.10A(1)
[Interpretation]
In this regulation:
OSS Act
means the Occupational Superannuation Standards Act 1987, as in force on 30 June 1994.
preserved OSS Act provisions
means the following provisions of the OSS Act that, despite amendment or repeal by the Occupational Superannuation Standards Amendment Act 1993 (the
Amendment Act
), have continued to apply under subsection 16(1) of the Amendment Act:
(a)
sections 4, 5, 6 and 6A;
(b)
Part II;
(c)
sections 10 to 15CA inclusive;
(d)
Part IIIAA;
(e)
the remaining provisions of the OSS Act in so far as they relate to any or all of the provisions mentioned in the preceding paragraphs of this definition.
superannuation standards officer
has the meaning given by the OSS Act.
13.10A(2)
[Action by ``ISC'']
If a preserved OSS Act provision provides that a thing must, or may, be done by the Insurance and Superannuation Commissioner, and the thing is to be done in respect of a self managed superannuation fund, the thing is validly done if done by the Commissioner of Taxation.
13.10A(3)
[Action involving ``ISC'']
If a preserved OSS Act provision provides that an action, must, or may, be taken in relation to the Insurance and Superannuation Commissioner and a superannuation fund, and the fund in relation to which the action is to be taken is a self managed superannuation fund, the action is validly taken if taken in relation to the fund and the Commissioner of Taxation.
13.10A(4)
[Obligation of ``ISC'']
If a preserved OSS Act provision imposes an obligation on the Insurance and Superannuation Commissioner, and the obligation is to be carried out in relation to a self managed superannuation fund, the obligation is taken to be imposed on the Commissioner of Taxation, and may be carried out by a member of the Commissioner of Taxation's staff.
13.10A(5)
[Immunity or privilege of ``ISC'']
If a preserved OSS Act provision grants an immunity or privilege to the Insurance and Superannuation Commissioner or a superannuation standards officer, the immunity or privilege is taken, in relation to a self managed superannuation fund, to be an immunity or privilege of the Commissioner of Taxation and a member of the Commissioner of Taxation's staff.
History
Reg 13.10A inserted by SR No 239 of 1999.
REGULATION 13.10B
OUTSTANDING ANNUAL RETURNS
13.10B(1)
[Application]
This regulation applies to the trustee of a fund if subsection 252G(1) of the Act requires the trustee to give an annual return, a report, or information to the Commissioner of Taxation.
13.10B(2)
[APRA]
Despite subsection 252G(1) of the Act, the trustee continues, until 30 June 2000, to be under an obligation to give the annual return, report or information to APRA rather than to the Commissioner.
History
Reg 13.10B inserted by SR No 239 of 1999.
REGULATION 13.10C
OUTSTANDING AMOUNTS
13.10C(1)
[Application]
This regulation applies to the trustee of a fund if subsection 252G(3) of the Act requires the trustee of the fund to pay an amount to the Commissioner of Taxation.
13.10C(2)
[APRA]
Despite subsection 252G(3) of the Act, the trustee continues, until 30 June 2000, to be under an obligation to pay the amount to APRA rather than to the Commissioner.
History
Reg 13.10C inserted by SR No 239 of 1999.
REGULATION 13.10D
CERTAIN ANNUAL RETURNS AND AMOUNTS FOR 1999-2000 YEAR OF INCOME
13.10D(1)
[Sec 252H]
This regulation is made for section 252H of the Act.
13.10D(2)
[Deemed compliance re annual return]
If the trustee of a superannuation entity that was a self managed superannuation fund at any time during the 1999-2000 year of income of the entity gives an annual return for that year of income of the entity before 1 July 2000, and the Act requires the return to be given to the Commissioner of Taxation, the trustee is taken to have complied with the requirement if the trustee gives the return to APRA.
13.10D(3)
[Deemed compliance re payment]
If the trustee of a superannuation entity mentioned in subregulation (1) pays, under a prescribed Act, an amount before 1 July 2000 in respect of the 1999-2000 year of income of the entity, and the Act requires the amount to be paid to the Commissioner of Taxation, the trustee is taken to have complied with the requirement if the trustee pays the amount to APRA rather than to the Commissioner.
13.10D(4)
[``prescribed Act'']
In subregulation (3):
prescribed Act
has the same meaning as in section 252G of the Act.
History
Reg 13.10D inserted by SR No 239 of 1999.
Division 13.2 - Various operating standards
REGULATION 13.11
13.11
INTERPRETATION
In this Division:
"approved non-bank financial institution"
(Omitted by SR No 432 of 1994)
History
Definition of ``approved non-bank financial institution'' inserted by SR No 189 of 1994.
charge
includes a mortgage, lien or other encumbrance.
recognise
includes act on or give effect to.
REGULATION 13.12
13.12
ASSIGNMENTS OF SUPERANNUATION INTERESTS
For the purposes of 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, subject to regulation 13.15, the trustee of a fund must not recognise, or in any way encourage or sanction, an assignment of a superannuation interest of a member or beneficiary.
REGULATION 13.13
CHARGES OVER A MEMBER'S BENEFITS
13.13(1)
[Applicable standard]
For the purposes of 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, subject to regulation 13.15, the trustee of a fund must not recognise, or in any way encourage or sanction, a charge over, or in relation to a member's benefits.
History
Reg 13.13(1) amended by SR No 189 of 1994.
13.13(2)
[``charge'']
In this regulation:
charge
does not include a specific charge if:
(a)
the charge was exercised in respect of particular benefits of a member before the fund became a regulated superannuation fund or an approved deposit fund (as the case may be); and
(b)
the trustee was permitted, under the Occupational Superannuation Standards Regulations or the Superannuation Industry (Supervision) (Transitional Provisions) Regulations, to recognise the charge.
History
Reg 13.13(2) inserted by SR No 189 of 1994.
13.13(3)
[payment split]
A payment split in respect of a member's interest in a superannuation fund is not a charge over or in relation to the member's benefits for subregulation (1).
History
Reg 13.13(3) inserted by SR No 353 of 2001, reg 3 and Sch 1 item 51, effective 28 December 2002.
13.13(4)
This regulation does not apply to a charge imposed under the Public Officers Superannuation Benefits Recovery Act 1988 (Qld) in relation to a member's benefits in the scheme established under the Superannuation (State Public Sector) Act 1990 (Qld).
History
Reg 13.13(4) inserted by SLI No 295 of 2009, reg 3 and Sch 1 item 3, effective 3 November 2009.
REGULATION 13.14
13.14
CHARGES OVER ASSETS OF FUNDS
For the purposes of 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, subject to regulations 13.15 and 13.15A, the trustee of a fund must not give a charge over, or in relation to, an asset of the fund.
History
Reg 13.14 amended by SR No 83 of 1998.
REGULATION 13.15
13.15
RESTRICTIONS ON THE STANDARDS
The standards stated in regulations 13.12, 13.13 and 13.14 do not apply to an assignment or charge that is permitted, expressly or by necessary implication, by the Act or these regulations.
REGULATION 13.15A
CHARGES IN RELATION TO CERTAIN DERIVATIVES CONTRACTS
13.15A(1)
A trustee may give a charge over, or in relation to, an asset of a fund if:
(a)
the charge is given in relation to a derivative to which either of the following is a party:
(i)
the trustee;
(ii)
another person (the
agent
) acting on behalf of, on the instructions of, on account of or for the benefit of the trustee; and
(b)
the charge complies with subregulation (1A), (1B) or (1C); and
(c)
the fund has in place a derivatives risk statement that sets out:
(i)
policies for the use of derivatives that include an analysis of the risks associated with the use of derivatives within the investment strategy of the fund; and
(ii)
restrictions and controls on the use of derivatives that take into consideration the expertise of staff; and
(iii)
compliance processes to ensure that the controls are effective (for example, reporting procedures, internal and external audits and staff management procedures); and
(d)
the investment to which the charge relates is made in accordance with the derivatives risk statement.
History
Reg 13.15A(1) amended by FRLI No F2016L00724, reg 4 and Sch 1 item 7, by substituting para (a) and (b), applicable to charges given on and after 10 May 2016. Para (a) and (b) formerly read:
(a)
the charge is given in relation to a derivatives contract entered into:
(i)
by, or on behalf of, the trustee; or
(ii)
by a broker on the instructions, or on account, of the trustee; or
(iii)
by a broker for the benefit of the trustee; and
(b)
the charge is given in order to comply with the rules of an approved body (as defined in subregulation (2)) that requires the performance of obligations in relation to the derivatives contract to be secured; and
Reg 13.15A(1) amended by SR No 113 of 2004, reg 3 and Sch 1 item 20, by substituting "derivatives risk" for "risk management" in paras (c) and (d), effective 1 July 2004.
13.15A(1A)
A charge complies with this subregulation if it is given in order to comply with a requirement, in either of the following, that the performance of obligations in relation to the derivative be secured:
(a)
rules governing the operation of an approved body (as defined in subregulation (2));
(b)
a law of the Commonwealth, a State, a Territory or a foreign country (including a part of a foreign country) that applies to dealings in the derivative.
History
Reg 13.15A(1A) inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 8, applicable to charges given on and after 10 May 2016.
13.15A(1B)
A charge complies with this subregulation if:
(a)
it is given in favour of the agent; and
(b)
the agent enters into an arrangement that is a derivative on behalf of, on the instructions of, on account of or for the benefit of the trustee; and
(c)
the agent is obliged under either of the following to keep the property of the trustee separate from the property of the agent:
(i)
rules governing the operation of an approved body (as defined in subregulation (2));
(ii)
a law of the Commonwealth, a State, a Territory or a foreign country (including a part of a foreign country) that applies to dealings in the derivative; and
(d)
the agent is under an obligation, or but for a netting-off would be under an obligation, to transfer property to another entity in relation to the derivative; and
(e)
the charge is given over an asset or assets of the fund, to secure the performance of an obligation or obligations in relation to the derivative.
History
Reg 13.15A(1B) inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 8, applicable to charges given on and after 10 May 2016.
13.15A(1C)
A charge complies with this subregulation if:
(a)
the asset over which the charge is given is financial property; and
(b)
the obligations secured by the financial property are any of the following:
(i)
an obligation of the trustee that relates to the derivative;
(ii)
an obligation of the trustee to pay interest on an obligation covered by subparagraph (i);
(iii)
an obligation of the trustee to pay costs and expenses incurred in connection with enforcing a charge given in respect of an obligation covered by subparagraph (i) or (ii); and
(c)
the financial property is transferred or otherwise dealt with so as to be in the possession or under the control of:
(i)
the secured person; or
(ii)
another person (who is not the trustee), on behalf of the secured person, under the terms of an arrangement evidenced in writing.
History
Reg 13.15A(1C) inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 8, applicable to charges given on and after 10 May 2016.
13.15A(1D)
For the purposes of paragraph (1C)(c), financial property is taken not to be in the possession or control of a person mentioned in that paragraph if, under the charge, the trustee is free to deal with the financial property in the ordinary course of business until the person's interest in the financial property becomes fixed and enforceable.
History
Reg 13.15A(1D) inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 8, applicable to charges given on and after 10 May 2016.
13.15A(1E)
Without limiting paragraph (1C)(c), financial property is taken to be in the possession of a person for the purposes of that paragraph if:
(a)
in a case where there is an issuer of the financial property - the person is registered by, or on behalf of, the issuer as the registered owner of the financial property; or
(b)
in a case where the financial property is intermediated financial property - the person is the person in whose name the intermediary maintains the account.
History
Reg 13.15A(1E) inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 8, applicable to charges given on and after 10 May 2016.
13.15A(1F)
Without limiting paragraph (1C)(c), financial property is taken to be under the control of a person for the purposes of that paragraph if:
(a)
the financial property is intermediated financial property; and
(b)
the intermediary is not the trustee (but may be the secured person or any other person); and
(c)
there is an agreement in force between the intermediary and one or more other persons, one of which is the secured person or the trustee; and
(d)
the agreement has one or more of the following effects:
(i)
the person in whose name the intermediary maintains the account is not able to transfer or otherwise deal with the financial property;
(ii)
the intermediary must not comply with instructions given by the trustee in relation to the financial property without seeking the consent of the secured person (or a person who has agreed to act on the instructions of the secured person);
(iii)
the intermediary must comply, or must comply in one or more specified circumstances, with instructions (including instructions to debit the account) given by the secured person in relation to the intermediated financial property without seeking the consent of the trustee (or any person who has agreed to act on the instructions of the trustee).
History
Reg 13.15A(1F) inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 8, applicable to charges given on and after 10 May 2016.
13.15A(1G)
Without limiting paragraph (1C)(c), the fact that the trustee retains a right of one or more of the following kinds does not of itself stop that paragraph from being satisfied:
(a)
right to receive and withdraw income in relation to the financial property;
(b)
right to receive notices in relation to the financial property;
(c)
right to vote in relation to the financial property;
(d)
right to substitute other financial property that the parties agree is of equivalent value for the financial property;
(e)
right to withdraw excess financial property;
(f)
right to determine value of financial property.
History
Reg 13.15A(1G) inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 8, applicable to charges given on and after 10 May 2016.
13.15A(2)
In this regulation:
approved body
means a body mentioned in Schedule 4.
History
Definition of "approved body" substituted by SR No 21 of 2002, reg 3 and Sch 1 item 41, effective 11 March 2002. The definition formerly read:
approved body
means:
(a)
Australian Stock Exchange Ltd;
(b)
Options Clearing House Pty Ltd.;
(c)
Sydney Futures Exchange Ltd;
(d)
Sydney Futures Exchange Clearing House Pty Ltd;
(e)
a body that is an approved foreign exchange within the meaning of regulation 1.2A.02 of the Corporations Regulations;
(f)
a body specified in Schedule 11 of the Corporations Regulations;
(g)
a body that performs clearing house functions in relation to a body mentioned in paragraph (e) or (f) (
the second body
) in accordance with the rules of the second body or a law of the country where the second body is situated.
derivative
means any of the following:
(a)
a derivative (within the meaning of Chapter 7 of the Corporations Act 2001);
(b)
a foreign exchange contract (within the meaning of that Act);
(c)
an arrangement that is a forward, swap or option, or any combination of those things, in relation to one or more commodities;
but does not include any arrangement that is of a kind mentioned in subregulation 6(2) of the Payment Systems and Netting Regulations 2001.
Note:
Subregulation 6(2) of the Payment Systems and Netting Regulations 2001 identifies obligations that are not eligible obligations in relation to a close-out netting contract. The arrangements mentioned include credit facilities, reciprocal purchase agreements (otherwise known as repurchase agreements), sell-buyback arrangements, securities loan arrangements, contracts of insurance and managed investment schemes.
History
Definition of "derivative" amended by FRLI No F2023L01458, reg 4 and Sch 2 item 47, by substituting "that Act" for "that Chapter" in para (b), effective 1 November 2023.
Definition of "derivative" substituted by FRLI No F2016L00724, reg 4 and Sch 1 item 9, applicable to charges given on and after 10 May 2016. The definition formerly read:
derivative
means a financial asset or liability the value of which depends on, or is derived from, other assets, liabilities or indices.
derivatives contract
(Repealed by FRLI No F2016L00724)
History
Definition of "derivatives contract" repealed by FRLI No F2016L00724, reg 4 and Sch 1 item 10, applicable to charges given on and after 10 May 2016. The definition formerly read:
derivatives contract
means an options contract or a futures contract relating to any right, liability or thing.
Definition of "derivatives contract" substituted by SR No 21 of 2002, reg 3 and Sch 1 item 42, effective 11 March 2002. The definition formerly read:
derivatives contract
means an option contract or futures contract relating to any right, liability or thing, including in particular:
(a)
an option contract as defined in section 9 of the Corporations Law; and
(b)
a futures contract within the meaning of section 72 of the Corporations Law; and
(c)
an agreement to which section 72A or 92A of the Corporations Law applies.
Reg 13.15A inserted by SR No 83 of 1998, reg 19.1, effective 5 May 1998.
financial property
has the same meaning as in the Payment Systems and Netting Act 1998.
History
Definition of "financial property" inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 11, applicable to charges given on and after 10 May 2016.
intermediary
has the same meaning as in paragraph (h) of the definition of
financial property
in section 5 of the Payment Systems and Netting Act 1998.
History
Definition of "intermediary" inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 11, applicable to charges given on and after 10 May 2016.
intermediated financial property
has the same meaning as in the Payment Systems and Netting Act 1998.
History
Definition of "intermediated financial property" inserted by FRLI No F2016L00724, reg 4 and Sch 1 item 11, applicable to charges given on and after 10 May 2016.
REGULATION 13.16
ACCRUED BENEFITS - RESTRICTION ON ALTERATION
13.16(1)
For the purposes of subsection 31(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds that, subject to subregulation (2), a beneficiary's right or claim to accrued benefits, and the amount of those accrued benefits, must not be altered adversely to the beneficiary by amendment of the governing rules or by any other act carried out, or consented to, by the trustee of the fund.
Reg 13.16(1) amended by SR No 158 of 1995.
View history note
