{"id":"C2007A00013","name":"Superannuation (Departing Australia Superannuation Payments Tax) Act 2007","slug":"superannuation-departing-australia-superannuation-payments-tax-act-2007","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"13 of 2007","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":7958,"registerId":"commonwealth-C2007A00013-current","compilationNumber":null,"startDate":"2026-03-30","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n  This Act may be cited as the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007.","sortOrder":0},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n  This Act commences on 1 July 2007.","sortOrder":1},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"#### 3 Definitions\n\n  In this Act:\n\n> departing Australia superannuation payment has the same meaning as in the Income Tax Assessment Act 1997.\n\n> element taxed in the fund has the same meaning as in the Income Tax Assessment Act 1997.\n\n> element untaxed in the fund has the same meaning as in the Income Tax Assessment Act 1997.\n\n> excess untaxed roll‑over amount has the same meaning as in the Income Tax Assessment Act 1997.\n\n> roll‑over superannuation benefit has the same meaning as in the Income Tax Assessment Act 1997.\n\n> taxable component has the same meaning as in the Income Tax Assessment Act 1997.\n\n> tax free component has the same meaning as in the Income Tax Assessment Act 1997.","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Imposition of tax","content":"#### 4 Imposition of tax\n\n  Tax payable on a departing Australia superannuation payment under subsection 301‑175(2) of the Income Tax Assessment Act 1997 is imposed.","sortOrder":3},{"sectionNumber":"5","sectionType":"section","heading":"Amount of tax","content":"#### 5 Amount of tax\n\n  (1) The amount of the tax is as follows:\n    (a) for the tax free component of the departing Australia superannuation payment—nil;\n    (b) for the element taxed in the fund of the taxable component of the departing Australia superannuation payment—35%;\n    (c) for the element untaxed in the fund of the taxable component of the departing Australia superannuation payment—45%.\n  (2) However, if the departing Australia superannuation payment is a roll‑over superannuation benefit paid under subsection 20H(2), (2AA) or (2A) of the Superannuation (Unclaimed Money and Lost Members) Act 1999, the amount of the tax for the element untaxed in the fund of the taxable component of the payment is:\n    (a) for the amount (if any) of the element that is not an excess untaxed roll‑over amount—45%; and\n    (b) for the amount (if any) of the element that is an excess untaxed roll‑over amount—nil.\n\n> Note: The tax for the excess untaxed roll‑over amount is set at nil to avoid double taxation of that amount, which is also subject to tax under the Superannuation (Excess Untaxed Roll‑over Amounts Tax) Act 2007.\n\n  (3) Despite subsections (1) and (2), if the departing Australia superannuation payment:\n    (a) is paid to a person on or after 1 July 2017; and\n    (b) includes amounts attributable to superannuation contributions made while the person was a working holiday maker (within the meaning of the Income Tax Rates Act 1986);\n  those subsections apply as if the percentages in paragraphs (1)(b) and (c) and (2)(a) were 65%.","sortOrder":4},{"sectionNumber":"6","sectionType":"section","heading":"Temporary budget repair levy","content":"#### 6 Temporary budget repair levy\n\n  (1) This section applies to departing Australia superannuation payments received in a temporary budget repair levy year.\n  (2) Increase:\n    (a) the percentage mentioned in paragraph 5(1)(b) by 3 percentage points; and\n    (b) the percentage mentioned in paragraph 5(1)(c) by 2 percentage points; and\n    (c) the percentage mentioned in paragraph 5(2)(a) by 2 percentage points.\n  (3) In this section:\n\n> temporary budget repair levy year has the same meaning as in section 4‑11 of the Income Tax (Transitional Provisions) Act 1997.","sortOrder":5}],"analysis":{"summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"The original Act (2007) established a straightforward two-tier tax rate structure (35%/45%) for departing temporary residents. Scope expanded materially in 2017 when a significantly higher 65% rate was introduced specifically targeting working holiday makers, reflecting a policy shift to more aggressively tax this cohort. The Temporary Budget Repair Levy also temporarily expanded the effective tax rates beyond the original design, though this was time-limited."},"complexity_factors":["Multiple tax rate tiers depending on how contributions were treated inside the fund (taxed vs untaxed elements)","Special carve-out rate of 65% specifically for working holiday makers, requiring cross-referencing the Income Tax Rates Act 1986 to determine eligibility","Anti-double-taxation provision for 'excess untaxed roll-over amounts' requiring understanding of a separate Act (Superannuation (Excess Untaxed Roll-over Amounts Tax) Act 2007)","Temporary Budget Repair Levy adds a time-limited overlay to the base rates, requiring cross-referencing the Income Tax (Transitional Provisions) Act 1997","Nearly all defined terms are imported wholesale from the Income Tax Assessment Act 1997, meaning the Act cannot be fully understood in isolation"],"plain_english_summary":"## Superannuation (Departing Australia Superannuation Payments Tax) Act 2007\n\n### What does this law do?\nThis Act imposes a **tax on superannuation (retirement savings) that is paid out to temporary visa holders who are leaving Australia permanently** — a payment known as a \"Departing Australia Superannuation Payment\" (DASP).\n\nIf you worked in Australia on a temporary visa (like a working holiday or student visa), your employer was required to contribute to an Australian super fund on your behalf. When you leave Australia for good, you can claim that money back — but the government takes a cut first. This Act sets out exactly how much.\n\n### Who does this affect?\n- **Temporary visa holders** (e.g., backpackers, international students, temporary workers) who worked in Australia and had superannuation contributions made for them\n- **Superannuation funds** that hold and pay out these amounts\n- **Working holiday makers** (e.g., people on a 417 or 462 visa) are treated even more harshly\n\n### How much tax is taken?\nThe tax rate depends on how the money was treated inside the super fund:\n\n| Type of money | Standard tax rate |\n|---|---|\n| Tax-free component | 0% (no tax) |\n| Already-taxed contributions (\"element taxed in the fund\") | 35% |\n| Not-yet-taxed contributions (\"element untaxed in the fund\") | 45% |\n\n**Working holiday makers face a higher rate of 65%** on both taxed and untaxed elements (for contributions made while on a working holiday visa). This higher rate has applied since 1 July 2017.\n\n### What about the \"Temporary Budget Repair Levy\"?\nFor a short period, rates were temporarily bumped up by 2–3 percentage points as part of a broader government budget measure. This was a time-limited increase.\n\n### Why does this matter?\nIf you're a temporary visa holder planning to leave Australia, you will **not get your full super balance back**. A significant portion — potentially 35%, 45%, or even 65% — will be withheld as tax. Understanding this helps you plan your finances before departing."},"issue_detection":{"absurdities":[{"type":"impossible_compliance","section":"5(3)","severity":"high","reasoning":"Section 5(3) overrides subsections (1) and (2) by substituting 65% for the percentages in paragraphs 1(b), 1(c), and 2(a). However, section 6 then purports to increase those same original percentages by 3 and 2 percentage points respectively during temporary budget repair levy years. Since section 5(3) uses the word 'Despite' to override subsections (1) and (2), it is unclear whether section 6 can then operate on the substituted 65% rate (producing 68% or 67%), or whether section 6 is itself overridden by section 5(3). A tax rate exceeding 100% is impossible, and rates approaching or exceeding the full amount undermine the economic coherence of a 'payment' rather than full confiscation. The interaction is ambiguous and potentially produces rates of 68% or 67% with no legislative clarity.","confidence":0.75,"description":"Working holiday maker rate of 65% exceeds the maximum possible tax rate and creates an impossible arithmetic outcome when combined with section 6"},{"type":"other","section":"5(2)(b)","severity":"low","reasoning":"The note to section 5(2)(b) candidly admits the nil rate exists to avoid double taxation. While administratively rational, this means the Act affirmatively imposes a tax of nil — the Act 'imposes' something that is zero, which is a legal nullity. The imposition of nil tax is logically vacuous; the Act could simply not cover the excess untaxed roll-over amount at all. This creates a technically meaningless provision that imposes no obligation but occupies legislative space, potentially causing confusion about the jurisdictional boundary between this Act and the Superannuation (Excess Untaxed Roll-over Amounts Tax) Act 2007.","confidence":0.65,"description":"Setting tax on excess untaxed roll-over amounts to nil while simultaneously acknowledging they are taxed under a separate Act creates a structural absurdity in the context of this Act's purpose"},{"type":"circular_definition","section":"3","severity":"medium","reasoning":"Every single defined term in section 3 is defined solely by reference to the Income Tax Assessment Act 1997 (ITAA 1997). This means the Act has no definitional independence whatsoever. If any of those definitions in the ITAA 1997 are amended, repealed, or become contested, this Act's operative provisions are automatically affected without any amendment to this Act. More critically, 'departing Australia superannuation payment' — the very subject matter of the tax imposed — has no meaning within this Act itself. The Act imposes a tax (s.4) on a concept it cannot itself define. While cross-referencing is common drafting practice, having zero independent definitions in a standalone taxing Act creates a complete logical dependence that could render the entire Act inoperative if the ITAA 1997 definitions were repealed.","confidence":0.7,"description":"Entire definitional framework is entirely derivative with no independent content, creating a chain of circular dependency on external legislation"}],"contradictions":[{"severity":"high","section_a":"5(3)","section_b":"6(2)","confidence":0.82,"description":"Section 5(3) overrides subsections 5(1) and 5(2) with a flat 65% rate, but section 6(2) purports to increase the percentages specified in those same overridden subsections, creating an irreconcilable conflict as to the applicable rate for working holiday makers during a temporary budget repair levy year"},{"severity":"low","section_a":"4","section_b":"5(2)(b)","confidence":0.6,"description":"Section 4 imposes tax on a departing Australia superannuation payment in broad terms, but section 5(2)(b) sets the tax on the excess untaxed roll-over amount component at nil, meaning the Act simultaneously imposes tax and imposes no tax on a sub-component of the same payment, contradicting the unqualified imposition in section 4"}]},"kimi_summary":{"content_quality":"ok","complexity_score":3,"scope_assessment":{"changed":true,"description":"The original Act (2007) established a straightforward tax regime for departing temporary residents with rates of 0%/35%/45%. However, section 5(3) — added later to target working holiday makers with a punitive 65% rate — significantly expanded the scope beyond the original purpose of ensuring departing temporary residents didn't access concessional superannuation tax rates. The 65% rate aligns with the controversial 'backpacker tax' on income and represents a shift from treating DASPs as a retirement savings matter to using them as a revenue-raising mechanism targeting specific visa subclasses. The temporary budget repair levy (section 6) also expanded scope temporarily, though this was time-limited by design."},"complexity_factors":["Only 6 sections total, with minimal conditional logic","7 defined terms, all imported by reference from other Acts (Income Tax Assessment Act 1997)","Simple rate structure with 3 main tiers (0%, 35%, 45%) plus one exception","Two modifying provisions: one for working holiday makers (section 5(3)) and one for the temporary budget repair levy (section 6)","No nested exceptions or complex cross-referencing beyond the imported definitions","Straightforward mathematical calculations (percentage applications)"],"plain_english_summary":"**What this law does:**\n\nThis Act sets up a special tax that applies when temporary workers leave Australia and take their superannuation (retirement savings) with them. These are called \"departing Australia superannuation payments\" (DASPs).\n\n**Who it affects:**\n\n- **Temporary residents** of Australia (such as backpackers, seasonal workers, and other visa holders) who leave the country permanently and claim their superannuation\n- **Superannuation funds** that process these payments\n\n**How the tax works:**\n\nThe tax rate depends on what type of superannuation money is being paid out:\n\n- **Tax-free component**: No tax (0%)\n- **Taxed element** (money that the super fund already paid tax on): **35%**\n- **Untaxed element** (money that hasn't been taxed yet, such as some government contributions): **45%**\n\n**Special rules:**\n\n- **Working holiday makers**: If you were on a working holiday visa (like a 417 or 462 visa) and made super contributions after 1 July 2017, you pay a flat **65%** tax rate on the taxable parts of your super. This is much higher than the standard rates.\n- **Unclaimed super**: If your super was transferred to the ATO as \"unclaimed money\" and you're claiming it through a special rollover process, there's a tweak to prevent double-taxing certain amounts.\n- **Budget repair levy**: Between 2014-15 and 2016-17, there was a temporary extra charge (2-3 percentage points higher) on these payments.\n\n**Why it matters:**\n\nThis law ensures temporary workers don't get the same tax concessions as permanent Australian residents when accessing super. Permanent residents typically pay much lower rates (or no tax) on super after age 60. The high rates for working holiday makers (65%) were introduced to match the higher tax rates they pay on their income while working in Australia."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"}},"importantCases":[],"_links":{"self":"/api/acts/superannuation-departing-australia-superannuation-payments-tax-act-2007","history":"/api/acts/superannuation-departing-australia-superannuation-payments-tax-act-2007/history","analysis":"/api/acts/superannuation-departing-australia-superannuation-payments-tax-act-2007/analysis","conflicts":"/api/acts/superannuation-departing-australia-superannuation-payments-tax-act-2007/conflicts","importantCases":"/api/acts/superannuation-departing-australia-superannuation-payments-tax-act-2007/important-cases","documents":"/api/acts/superannuation-departing-australia-superannuation-payments-tax-act-2007/documents"}}