This regulation sets detailed operational rules for the Parliamentary Contributory Superannuation Scheme: trustee procedures, record-keeping, evidence requirements, handling of superannuation contributions surcharge assessments, and family-law splitting, valuation and notice timelines. It affects trustees, current and former members, non-member spouses and the Commissioner of Taxation because it prescribes how benefits are calculated, reduced, paid or transferred, what evidence and notices are required, and how surcharge liabilities are managed.
This regulation restates and prescribes procedural, evidential, actuarial and timing rules that operate under the Parliamentary Contributory Superannuation Act 1971 (the Act). It comes into force on publication on the NSW legislation website (s 2) and expressly repeals the Parliamentary Contributory Superannuation Regulation 2018 while saving existing effects (s 25). The regulation defines terms used in the instrument and for particular Parts (s 3, ss 12, 17). Mechanically it does the following.
Prescribes trustee internal procedures: cheque-signing formalities (two authorised signatories, drawn to order, marked “not negotiable”) (s 4); who may call meetings, record-keeping obligations for meetings, and delegation to vice-chairperson in the chairperson’s absence (s 5); and general record-keeping of payments into and from the Fund for each member or beneficiary (s 11).
Fixes rules about the form and content of communications and evidence: information to trustees must be written and addressed to the trustees (s 7); trustees may require documentary proof of age, relationship status and entitlement to determine eligibility for pensions or benefits (s 8); trustees may require pensioners to sign declarations about holding other parliamentary office or entitlement to other pensions (s 9); and members and pensioners must notify trustees promptly of ceasing entitlement and of address changes (s 10).
Implements a surcharge-payment regime that operationalises how trustees handle post-payment superannuation contributions surcharge assessments issued by the Commonwealth Commissioner of Taxation, including definitions of total surcharge amount, additional surcharge amount and the surcharge deduction cap (s 12), trustees’ power to reimburse or pay excess to the Commissioner (s 13), trustees’ power to reduce benefits at a former member’s request and the role of actuarial advice (s 14), limits on trustees paying penalty interest (s 15), and prescribed percentages for the surcharge deduction cap depending on accrual period (s 16).
Current sections
Direct links to the current provisions in Parliamentary Contributory Superannuation Regulation 2024.
7 Information given to trustees must be in writing
7 Information given to trustees must be in writing
(1) Information given to the trustees under the Act must, unless the Act specifies otherwise, be—
(a) in writing, and
(b) addressed to the trustees.
(2) In this section—
information includes an application, a notice and a request.
8
Evidence of age, relationship or entitlement
8 Evidence of age, relationship or entitlement
8 Evidence of age, relationship or entitlement
(1) The trustees may exercise the powers specified in this section to enable the trustees to determine whether a person applying for a pension or other benefit under the Act is eligible to receive the pension or benefit.
(2) The trustees may require—
(a) a member or former member to give the trustees documentary evidence of the person’s—
(i) age, and
(ii) relationship status, and
(b) the spouse or de facto partner of a member or former member to give the trustees documentary evidence of the person’s relationship to the member or former member, and
(c) a dependent child of a deceased member or former member to give the trustees specified information.
(3) In this section—
relationship status means—
(a) if the member or former member is married—the fact that the person is married, or
(b) if the member or former member is in a registered relationship, an interstate registered relationship or a de facto relationship—the fact that the person is in a relationship of that kind.
9
Trustees may require pensioner to sign declaration
9 Trustees may require pensioner to sign declaration
9 Trustees may require pensioner to sign declaration
(1) The trustees may require a person receiving a pension or other benefit under the Act to give the trustees a signed declaration that, during the period for which the pension or benefit has been paid—
(a) the person has not become a member of another Parliament, or
(b) the person has not become entitled to payment of another pension because the person—
(i) has been a member of another Parliament, or
(ii) is in a relationship with a member of another Parliament.
(2) In this section—
another Parliament means the Parliament of the Commonwealth or a Parliament of another State.
relationship means the following—
(a) a marriage,
(b) a registered relationship,
(c) an interstate registered relationship,
(d) a de facto relationship.
10
Notifications to trustees
10 Notifications to trustees
10 Notifications to trustees
(1) If a person ceases to be entitled to receive a pension or other benefit under the Act, the person must immediately notify the trustees of—
(a) the fact that the person’s entitlement has ceased, and
(b) the date on which the entitlement ceased.
(2) A person receiving a pension or other benefit under the Act must notify the trustees of a change to the address at which the person may be contacted by the trustees.
11
Records
11 Records
11 Records
The trustees must keep records in relation to each member or other person who receives, is entitled to receive, or has received, a pension or other benefit under the Act showing the amounts paid into or from the Fund in relation to the member or other person.
Part 3
Surcharge payments and benefit reductions
Part 3 Surcharge payments and benefit reductions
Part 3 Surcharge payments and benefit reductions
12
Definitions
12 Definitions
12 Definitions
In this part—
additional surcharge amount means the amount of superannuation contributions surcharge assessed to be payable by a post payment surcharge assessment notice.
Commissioner of Taxation means the person holding office for the time being as the Commissioner of Taxation under a law of the Commonwealth.
post payment surcharge assessment notice means a notice of assessment of superannuation contributions surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 of the Commonwealth in relation to employer contributions paid to the Fund on behalf of a former member.
surcharge deduction cap means the maximum surcharge deduction amount that may be determined by the trustees under the Act, section 26D(3) in relation to a benefit payable to a former member.
total surcharge amount, for a former member, means the sum of—
(a) the total amount of superannuation contributions surcharge that has been assessed to be payable in relation to employer contributions paid to the Fund on the member’s behalf, up to and including the date on which the former member receives a post payment surcharge assessment notice, and
(b) the amount, if any, of general interest charged in relation to the additional surcharge amount payable under the notice, and
(c) the amount, if any, of interest payable in relation to the surcharge debt account kept for the former member.
13
Payment by trustees in relation to additional surcharge amount—the Act, s 26D
13 Payment by trustees in relation to additional surcharge amount—the Act, s 26D
13 Payment by trustees in relation to additional surcharge amount—the Act, s 26D
(1) This section applies in relation to a former member who has paid, or is liable to pay, an additional surcharge amount to the Commissioner of Taxation.
(2) For the Act, section 26D(9), if the total surcharge amount for the former member exceeds the surcharge deduction cap, the trustees may—
(a) if the former member has paid the additional surcharge amount—reimburse the former member by paying the excess amount to the former member, or
(b) if the former member has not paid the additional surcharge amount—pay the excess amount to the Commissioner of Taxation at the former member’s request.
(3) In this section—
excess amount means—
(a) an amount equal to the amount by which the total surcharge amount for a former member exceeds the surcharge deduction cap, minus
(b) any amount the trustees previously reimbursed or paid in relation to the former member’s superannuation contributions surcharge.
14
Further reduction of certain benefits resulting from liability for superannuation contributions surcharge—the Act, s 26D
14 Further reduction of certain benefits resulting from liability for superannuation contributions surcharge—the Act, s 26D
14 Further reduction of certain benefits resulting from liability for superannuation contributions surcharge—the Act, s 26D
(1) For the Act, section 26D(9)(b), the trustees may, at the request of a former member—
(a) reduce the amount of the former member’s benefit by the lesser of—
(i) the additional surcharge amount for the former member, and
(ii) the amount, not less than $0, that is equal to the amount of the surcharge deduction cap after deducting any previously met surcharge liability, and
(b) pay the lesser amount to—
(i) the former member, or
(ii) the Commissioner of Taxation.
(2) The trustees may request actuarial advice for the purposes of determining the amount by which the former member’s benefit is to be reduced.
(3) In this section—
previously met surcharge liability means the sum of—
(a) all amounts paid by the former member in relation to the former member’s total surcharge amount to—
(i) the trustees, or
(ii) the Commissioner of Taxation, and
(b) all amounts that have previously been reduced under this section or the Act, section 26D in relation to the former member’s superannuation contributions surcharge.
15
Limitation on payment of penalty interest
15 Limitation on payment of penalty interest
15 Limitation on payment of penalty interest
Sections 13 and 14 do not authorise the trustees to pay general interest charged in relation to an additional surcharge amount payable by a post payment surcharge assessment notice received on or after 25 June 2004, unless—
(a) the former member requests payment of the interest, and
(b) the request is made within a reasonable period after the former member receives the notice.
16
Surcharge deduction amount—the Act, s 26D
16 Surcharge deduction amount—the Act, s 26D
16 Surcharge deduction amount—the Act, s 26D
For the Act, section 26D(3)(b), the following amounts are prescribed—
(a) for a benefit payable to a member or former member that accrued after 20 August 1996 and before 1 July 2003—15%,
(b) for a benefit payable to a member or former member that accrued on or after 1 July 2003 and before 30 June 2004—14.5%,
(c) for a benefit payable to a member or former member that accrued on or after 1 July 2004 and before 30 June 2005—12.5%.
Part 4
Family law provisions
Part 4 Family law provisions
Part 4 Family law provisions
17
Definition
17 Definition
17 Definition
In this part—
prescribed period means the period prescribed by section 18.
18
Prescribed period for non-member spouses to nominate fund or RSA—the Act, s 29C
18 Prescribed period for non-member spouses to nominate fund or RSA—the Act, s 29C
18 Prescribed period for non-member spouses to nominate fund or RSA—the Act, s 29C
For the Act, section 29C(5)(b), the prescribed period is 28 days after a notice under section 20(1) is received by the non-member spouse.
19
Valuation of superannuation interests—the Act, s 29E
19 Valuation of superannuation interests—the Act, s 29E
19 Valuation of superannuation interests—the Act, s 29E
(1) This section applies for the purposes of the Act, Part 4A and the family law superannuation legislation.
(2) For the Act, section 29E(h), the value of a superannuation interest of a member spouse must be determined in accordance with the following methods—
(c) for a pension first paid on or after 1 February 1990 to a member spouse who was not a member before that date—the Family Law (Superannuation) Regulations 2001 of the Commonwealth, Schedule 4,
(d) for an interest not specified in paragraphs (a)–(c)—the approved valuation method.
Notice to member spouse and non-member spouse when entitlement becomes payable—the Act, 29E
20 Notice to member spouse and non-member spouse when entitlement becomes payable—the Act, 29E
20 Notice to member spouse and non-member spouse when entitlement becomes payable—the Act, 29E
(1) For the Act, section 29E(e), if a superannuation interest of a member spouse is subject to a payment split, the trustees must give the member spouse and non-member spouse written notice that the interest is subject to a payment split.
(2) The trustees must give notice—
(a) for a payment split under a superannuation agreement or flag lifting agreement—within 28 days after the operative time for the payment split, or
(b) for a payment split under a splitting order—within 28 days after the later of—
(i) the operative time for the payment split, or
(ii) the trustees receiving a copy of the order.
(3) The notice given to the member spouse must specify the following—
(a) the estimated amount of the non-member spouse’s family law superannuation entitlement,
(b) how the amount was calculated,
(c) the period within which the amount will be paid,
(d) the estimated effect of the payment on the member spouse’s entitlement under the Parliamentary Contributory Superannuation Scheme.
(4) For the Act, section 29E(a) and (e), the notice given to the non-member spouse must—
(a) specify the estimated amount of the non-member spouse’s family law superannuation entitlement, and
(b) specify how the amount was calculated, and
(c) specify the circumstances in which—
(i) the amount may be paid or released to the non-member spouse, or
(ii) the amount must be transferred or rolled over to a complying superannuation fund or an RSA, and
(d) invite the non-member spouse to respond to the notice within the prescribed period by—
(i) advising the trustees that the amount may be paid or released to the non-member spouse because of a circumstance specified in the notice, or
(ii) nominating a complying superannuation fund or RSA for the transfer or rollover of the amount, and
(e) inform the non-member spouse that the amount will be credited to the Aware Super Fund if—
(i) the amount is not payable under the Act, section 29C(3)(a), and
(ii) the non-member spouse does not respond to the notice within the prescribed period.
(5) Subsection (1) does not apply if the superannuation interest ceases to be subject to a payment split before the end of the period specified in subsection (2) in which the trustee must give notice.
(6) In this section—
operative time has the same meaning as in the Family Law Act 1975 of the Commonwealth, Part VIIIB.
21
Family law superannuation payments—the Act, s 29E
21 Family law superannuation payments—the Act, s 29E
21 Family law superannuation payments—the Act, s 29E
(1) For the Act, section 29E(f), the trustees must pay a family law superannuation payment within the following periods—
(a) for a payment in the circumstance specified in the Act, section 29C(3)(a)—as soon as practicable after receiving notice from the non-member spouse,
(b) for a payment in the circumstance specified in the Act, section 29C(3)(b)—within 90 days after receiving the non-member spouse’s nomination of a complying superannuation fund or RSA,
(c) for a payment in the circumstance specified in the Act, section 29C(5)—within 90 days of the end of the prescribed period.
(2) The trustees must, within 28 days after taking an action specified in subsection (1), give the member spouse and non-member spouse a written notice stating—
(a) that the trustees paid, released, transferred or rolled over the non-member spouse’s family law superannuation entitlement, and
(b) the amount of the entitlement, and
(c) how the amount was calculated, and
(d) in the notice given to the member spouse—the estimated effect of the action on the member spouse’s entitlement under the Parliamentary Contributory Superannuation Scheme, and
(e) in the notice given to the non-member spouse, if the amount was transferred or rolled over to a superannuation fund or RSA—the name and contact details of the superannuation fund or RSA.
Note—
See the Family Law (Superannuation) Regulations 2001 of the Commonwealth, regulation 59 in relation to fees the trustees may charge in relation to certain actions taken under this section.
22
Reduction of benefits of member spouse—the Act, s 29E
22 Reduction of benefits of member spouse—the Act, s 29E
22 Reduction of benefits of member spouse—the Act, s 29E
(1) For the Act, section 29E(j), if a family law superannuation payment is made, the benefit payable to the member spouse under the Act is reduced in accordance with subsection (2) at the following times—
(a) for a benefit, including a benefit transferred under the Act, and other than a deferred benefit—when the benefit is paid or transferred to the member spouse,
(b) for a deferred benefit—
(i) if the benefit is deferred before the family law superannuation payment is made—when the payment is made, or
(ii) if the benefit is deferred after the family law superannuation payment is made—when the benefit is deferred.
(2) The benefit is reduced in accordance with the following calculation—
where—
r is the amount of the reduced benefit.
v is the amount of the benefit that would have been payable to the member spouse under the Act if the family law superannuation payment had not been made.
A is the ratio of the amount of the family law superannuation payment made to the non-member spouse to the value of the member spouse’s benefit when the payment split occurred.
C is the ratio of the benefit accrual at the time of the payment split to the benefit accrual for the member spouse’s benefit when the benefit is payable, deferred or transferred, as the case requires.
(3) If family law superannuation payments are made to, or in relation to, more than one non-member spouse, the amount of the member spouse’s reduced benefit is further reduced by multiplying the reduced benefit by the following reduction factor for each family law superannuation payment—
where—
f is the reduction factor.
A and C have the same meanings as in subsection (2).
(4) Subsection (3) does not apply if the reduced benefit is a deferred benefit.
(5) In this section—
benefit accrual, for a benefit at a point in time, means the benefit accrual at that time as determined by the trustees in accordance with actuarial advice.
deferred benefit means a benefit—
(a) deferred under the Act, section 19B, or
(b) preserved under the Act, section 22B.
make, in relation to a family law superannuation payment, means pay, release, transfer or rollover to, or in relation to, the non-member spouse.
value, of a benefit, means the value of the benefit as determined by the trustees in accordance with actuarial advice.
23
Effect of benefit reductions on pensions and other benefits—the Act, ss 29E and 33
23 Effect of benefit reductions on pensions and other benefits—the Act, ss 29E and 33
23 Effect of benefit reductions on pensions and other benefits—the Act, ss 29E and 33
(1) For the Act, section 29E(k)—
(a) the trustees may commute part of a pension payable to a member spouse for the purposes of paying a family law superannuation entitlement to, or in relation to, a non-member spouse, and
(b) the amount of the commuted pension is reduced in accordance with section 22.
(2) For the Act, sections 29E(j) and 33, if a benefit is payable under the Act to a person on the death of a member spouse whose benefit has been, or is to be, reduced because of a family law superannuation payment, the benefit payable to the person is determined according to the reduced benefit.
24
Transitional provisions relating to certain family law superannuation entitlements arising before 3 March 2011
24 Transitional provisions relating to certain family law superannuation entitlements arising before 3 March 2011
24 Transitional provisions relating to certain family law superannuation entitlements arising before 3 March 2011
(1) If an existing entitlement is an interest that is not able to be calculated until a benefit becomes payable to a member spouse or other person, the entitlement is taken to be operative for the purposes of the Act, section 29C when the benefit becomes payable to the member spouse or other person.
(2) For the purposes of the application of section 20 to an existing entitlement, a non-member spouse must respond to a notice as specified in section 20(4)(d) within 3 months of being given the notice.
(3) In this section—
existing entitlement means a family law superannuation entitlement that arose under a superannuation agreement, flag lifting agreement or splitting order in force before 3 March 2011.
This regulation is the Parliamentary Contributory Superannuation Regulation 2024.
2 Commencement
2 Commencement
2 Commencement
This regulation commences on the day on which it is published on the NSW legislation website.
Note—
This regulation repeals and replaces the Parliamentary Contributory Superannuation Regulation 2018, which would otherwise be repealed on 1 September 2024 by the Subordinate Legislation Act 1989, section 10(2).
3 Definitions
3 Definitions
3 Definitions
In this regulation—
additional surcharge amount, for Part 3—see section 12.
Commissioner of Taxation, for Part 3—see section 12.
interstate registered relationship, for Part 2, Division 2—see section 6.
post payment surcharge assessment notice, for Part 3—see section 12.
prescribed period, for Part 4—see section 17.
registered relationship, for Part 2, Division 2—see section 6.
surcharge deduction cap, for Part 3—see section 12.
the Act means the Parliamentary Contributory Superannuation Act 1971.
total surcharge amount, for Part 3—see section 12.
Note—
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this regulation.
Part 2 General requirements
Part 2 General requirements
Part 2 General requirements
Division 1 Procedures
Division 1 Procedures
Division 1 Procedures
4 Signing cheques—the Act, s 13
4 Signing cheques—the Act, s 13
4 Signing cheques—the Act, s 13
A cheque drawn on an account containing money belonging to the Fund must be—
(a) signed by at least 2 persons authorised by the trustees to do so, and
Provides detailed family law mechanics for splitting superannuation interests: prescribes the response period for non-member spouses to nominate a fund or RSA (28 days after receipt of notice) (ss 17-18); sets valuation methods by reference to Commonwealth Family Law (Superannuation) instruments and an approved valuation method (s 19); prescribes notice requirements to member and non-member spouses when an interest becomes payable and the content of those notices, including a default outcome if the non-member spouse does not respond (s 20); prescribes timeframes for trustees to make family law payments and notice obligations after payment, and cross-references Commonwealth regulation of trustee fees (s 21 and note); prescribes how the member spouse’s benefit is reduced after a family law payment with an actuarial formula and attendant definitions (s 22); sets the effect of reductions on pensions and death benefits (s 23); and provides transitional rules for older family law entitlements (s 24).
The regulation therefore transforms several broad powers in the Act into concrete administrative rules governing trustee behaviour (communication forms and timelines, documentation, computation methods) and the interaction between Fund administration and Commonwealth superannuation taxation and family law processes. It does not create new substantive entitlements; it prescribes how the trustees are to exercise powers conferred under the Act, and how administrative interactions (for example, with the Commissioner of Taxation and Commonwealth family law instruments) will operate in practice.
Main concepts
The regulation is organised around a few recurring technical concepts that structure trustee actions and member expectations. Those concepts are defined in the regulation and used to allocate decision‑making, timing, information flows and financial adjustments.
Trustee procedure and record-keeping. The trustees are subject to precise procedural prescriptions: cheques drawn on Fund accounts must be signed by at least two authorised persons, be drawn to order and be marked “not negotiable” (s 4); the chairperson (or vice-chairperson in absence) determines meeting date/time/place and must ensure written minutes (s 5); trustees must keep records showing amounts paid into and out of the Fund for each member or person entitled to benefits (s 11). These concepts govern internal control, audit trail and accountability.
Written communications and evidence. “Information” to trustees is defined to include applications, notices and requests and, unless the Act provides otherwise, must be in writing and addressed to the trustees (s 7). Trustees have a specific statutory power to require documentary evidence of age, relationship status and entitlement from members, former members, spouses/partners and dependent children to determine eligibility (s 8). Trustees may also require pensioners to sign declarations about holding other parliamentary offices or entitlement to other pensions (s 9). The regulation therefore constructs an evidential regime that centralises documentary proof and written exchanges.
Surcharge mechanics. Part 3 defines the vocabulary and mechanics for dealing with post-payment superannuation contributions surcharge assessments issued by the Commonwealth Commissioner of Taxation. Key defined terms include additional surcharge amount, total surcharge amount, surcharge deduction cap and post payment surcharge assessment notice (s 12). The trustees are given a narrow set of administrative responses: they may reimburse or pay certain excess amounts to the Commissioner at a former member’s request where the total surcharge amount exceeds the surcharge deduction cap (s 13); they may reduce a former member’s benefit to meet surcharge liabilities up to the cap, at the former member’s request (s 14); payment of general interest charged in relation to additional surcharge amounts is limited unless requested by the former member within a reasonable period (s 15); and the surcharge deduction cap is fixed to specified percentages depending on benefit accrual periods (s 16).
Family law superannuation splitting. Part 4 prescribes very specific mechanics for family law splitting of superannuation entitlements. The regulation prescribes the prescribed period for a non-member spouse to respond to a trustees’ notice (28 days after the non-member spouse receives the notice) (ss 17-18). It requires valuation of superannuation interests in accordance with Commonwealth family law superannuation regulations and an approved valuation method (s 19). Trustees must give both member and non‑member spouse written notice when a superannuation interest is subject to a payment split and provide specified content; the non-member spouse is invited to respond and to nominate a complying fund or RSA, and warned that if they fail to respond the amount will be credited to the Aware Super Fund in certain circumstances (s 20). Trustees must effect family law superannuation payments within prescribed periods and notify both spouses after payment (s 21). Benefit reductions for the member spouse are governed by an actuarial formula and defined concepts such as “benefit accrual” and “deferred benefit” (s 22). The regulation also specifies the effect of reductions on pensions and death benefits (s 23) and transitional arrangements for some entitlements created before 3 March 2011 (s 24).
Cross-references to Commonwealth instruments and other NSW Acts. Several core concepts are imported from other instruments: the Act is defined as the Parliamentary Contributory Superannuation Act 1971 (s 3); “registered relationship” and “interstate registered relationship” are given the meaning in the Relationships Register Act 2010 for Division 2 (s 6); valuation and approved valuation methods for family law matters are referenced to the Commonwealth Family Law (Superannuation) Regulations 2001 and the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (s 19); post-payment surcharge assessment notices are defined by reference to the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 (s 12). These references fix which external valuation methodologies and tax assessment processes interact with this Fund administration.
Together these concepts create a structure where trustees perform documentary checks, administer surcharge liabilities and family law splits against timed duties, and exercise actuarial judgment when reducing or commuting benefits. The regulation maps out the measurable administrative steps that convert statutory powers in the Act into day‑to‑day Fund decisions.
Who it affects
The regulation allocates duties and entitlements among a limited set of actors. The practical and financial consequences fall primarily on Fund members and former members, on non-member spouses who may hold family law entitlements, and on the trustees who administer the Fund. The Commonwealth Commissioner of Taxation is a named external actor in surcharge matters, and other Commonwealth family law administrators and instruments play an interfacing role.
Trustees and chairperson/vice-chairperson. Trustees are the primary duty-holders. They must follow prescribed procedures for payments (cheque signing s 4), keep meeting records (s 5), accept only written communications unless the Act says otherwise (s 7), require documentary evidence to determine eligibility (s 8), request declarations from pensioners (s 9), ensure receipt of notifications from members about cessation of entitlement and address changes (s 10), and maintain records for each member showing Fund transactions (s 11). Trustees also have powers to reimburse or pay surcharge amounts to the Commissioner, reduce benefits at a former member’s request to meet surcharge liabilities, request actuarial advice to determine reductions (ss 13-14), and administer family law payment splits and valuations (ss 19-23).
Members, former members and pensioners. The regulation directly affects current members and former members who receive or are entitled to receive pensions or other benefits. Members/former members may be required to provide documentary evidence of age and relationship status (s 8). Former members are the focus of the surcharge provisions (Part 3): where a post-payment surcharge assessment notice relates to employer contributions paid to the Fund on their behalf, their total surcharge amount is calculated and may result in reductions of their Fund benefit, reimbursement by trustees, or payment to the Commissioner at their request (ss 12-14). Pensioners can be required to sign declarations about holding other parliamentary office or receiving other pensions (s 9). Members and former members must notify trustees immediately if their entitlement ceases, and must provide address updates (s 10).
Non-member spouses and dependent children. Family law provisions create duties and options for non-member spouses. The trustees must give certain notices to both member and non-member spouses when an interest is subject to a payment split and must provide specified information to the non-member spouse, invite a response and permit nomination of a complying fund or RSA within a prescribed period (s 20). If the non-member spouse does not respond within the prescribed period, and certain other conditions apply, the amount will be credited to the Aware Super Fund (s 20(4)(e)). Dependent children can be required to provide “specified information” for eligibility purposes (s 8(2)(c)).
Commissioner of Taxation. The Commissioner of Taxation is defined for Part 3 and is the recipient of surcharge payments where the trustees pay amounts to the Commissioner at a former member’s request (s 12, s 13). The regulation recognises post-payment surcharge assessment notices issued under Commonwealth superannuation tax law (s 12) and operationalises a trustee response when those notices exist.
Third-party superannuation funds and RSAs. Non-member spouses who nominate a complying superannuation fund or retirement savings account have those nominations processed by trustees; trustees must transfer or roll over amounts within prescribed periods (s 21). If a non-member spouse does not nominate, the regulation specifies that the balance may be credited to Aware Super Fund (s 20(4)(e)).
External Commonwealth instruments and registries. The regulation brings in external entities indirectly: the Relationships Register Act 2010 supplies definitions for registered relationships (s 6), the Family Law (Superannuation) Regulations 2001 and associated approvals provide valuation methodology (s 19), and the Superannuation Contributions Tax (Assessment and Collection) Act 1997 defines the post-payment surcharge assessment notice (s 12). These instruments thus shape who can claim and how entitlements are valued.
Who pays and who bears financial consequences. Financially, reductions, reimbursements, or payments to the Commissioner affect members and former members. Trustees make administrative outlays (actuarial advice, record-keeping, processing transfers); the regulation references a Commonwealth regulation that permits trustees to charge fees for certain actions under s 21 (note to s 21 referencing Family Law (Superannuation) Regulations 2001, r 59). Non-member spouses who fail to respond within prescribed periods risk having their entitlement credited to the Aware Super Fund rather than to an account of their choosing (s 20(4)(e)).
In sum, the regulation principally affects the Fund trustees (who decide and implement), members and former members (whose benefits and liabilities are adjusted), non-member spouses (who must act within short time windows and may have a default fund allocation), and the Commissioner of Taxation (as recipient of surcharge payments). The Commonwealth family law and tax architecture are incorporated as functional partners in administrative outcomes.
Key duties and rights
This regulation converts a range of trustee powers in the Act into concrete administrative duties, sets rights of members/former members to require certain trustee actions, and specifies notice and timing obligations that create procedural rights for non-member spouses.
Primary trustee duties
Payment instrument controls. Trustees must ensure every cheque drawn on a Fund account is signed by at least two authorised persons, drawn to order, and marked “not negotiable” (s 4). This is a mandatory internal control.
Meeting governance and record-keeping. The chairperson decides meeting logistics, calls meetings by notifying trustees, must ensure a written record of each trustee meeting is kept, and the vice-chairperson may act in the chairperson’s absence (s 5). Trustees must keep individual records for each member showing amounts paid into and from the Fund (s 11).
Written communications and evidentiary duties. Trustees must require that information given to them be in writing and addressed to the trustees, unless the Act provides otherwise (s 7). Trustees may require documentary evidence (age, relationship status, relationship proof from spouse/partner, specified information from dependent children) to determine eligibility (s 8). Trustees may require pensioners to sign a declaration addressing whether they have become a member of another Parliament or are entitled to another pension due to being in a relationship with a member of another Parliament (s 9).
Notifications and timeframes. Where a person ceases to be entitled to a pension or other benefit, they must immediately notify the trustees of that fact and the date it ceased (s 10(1)). Trustees must give both member and non-member spouses notice when an interest is subject to a payment split (s 20(1)) and must follow prescribed timings for notices and payments for family law entitlements (s 20(2); s 21(1)-(2)).
Surcharge handling. Following a post-payment surcharge assessment notice from the Commissioner of Taxation, trustees have duties and options: if the total surcharge amount for a former member exceeds the surcharge deduction cap the trustees may, where the former member has paid, reimburse the former member by paying the excess, or, where the former member has not paid, pay the excess to the Commissioner at the former member’s request (s 13). Trustees may reduce a former member’s benefit, at the former member’s request, by the lesser of the additional surcharge amount and the remaining surcharge deduction cap, and pay that amount either to the former member or the Commissioner (s 14). Trustees may request actuarial advice to determine the amount of reduction (s 14(2)). Trustees are not authorised to pay general interest charged on additional surcharge amounts levied on or after 25 June 2004 except if the former member requests payment of the interest within a reasonable period after receiving the notice (s 15).
Rights of members/former members
Request to have trustees act on surcharge excess. A former member has the right to request trustees to have excess surcharge amounts paid to the Commissioner, or to seek reimbursement, depending on whether the former member has already paid (s 13(2)). They also may request trustees reduce their benefit to meet surcharge liabilities up to the cap and determine whether the trustees should pay the reduced amount to the former member or the Commissioner (s 14(1)(b)).
Entitlement to explanation and notice. Member spouses must be given notice specifying the estimated amount of the non-member spouse’s entitlement, how it was calculated, the period within which the amount will be paid, and the estimated effect of the payment on the member spouse’s entitlement under the Scheme (s 20(3)). Non-member spouses must be told the estimated amount, how it was calculated, the circumstances in which it may be paid or released or must be transferred/rolled over, invited to nominate a fund/RSA within the prescribed period, and advised that a failure to respond may result in the amount being credited to the Aware Super Fund (s 20(4)).
Time-limited approvals and nominations. Non-member spouses may nominate a complying fund or RSA; trustees must honour nominated transfers/rollovers within prescribed timeframes (s 21(1)(b)). For certain circumstances trustees must pay as soon as practicable after receiving notice from the non-member spouse (s 21(1)(a)).
Actuarial processes. Where trustees reduce benefits because of family law payments or surcharge liabilities, they may and in some cases must take actuarial advice to determine the reduction and the valuation of benefits (s 14(2), s 22(2)). Members have a right to the estimated effect being specified in notices (s 20(3), s 21(2)(d)).
Rights and duties of non-member spouses
Response window. Non-member spouses have a 28-day prescribed period to respond to a trustee notice inviting nomination of a fund or advising how their entitlement may be released or transferred; that period is 28 days after the notice under s 20(1) is received (s 18, s 20(2)).
Default outcome. If a non-member spouse fails to respond within the prescribed period, and the amount is not payable under s 29C(3)(a) of the Act, the notice must inform the non-member spouse that the amount will be credited to the Aware Super Fund (s 20(4)(e)).
Administrative limits and duties
Cap on surcharge deductions. The regulation prescribes the surcharge deduction cap percentages by reference to the accrual period of the benefit (s 16). Trustees are required to respect this cap when reducing benefits (s 14).
Limits on paying interest. Trustees do not have authority to pay general interest charged on additional surcharge amounts assessed on or after 25 June 2004 unless the former member requests it within a reasonable period after receiving the notice (s 15).
These duties and rights create a tight timetable of trustee obligations and member options, with trustees occupying the central administrative role and members/former members exercising defined choice rights in relation to surcharge handling and fund nominations in family law splits.
Penalties and enforcement
The regulation itself prescribes administrative powers, duties and timeframes; it does not create new criminal offences or civil penalty provisions within its text. Enforcement mechanisms provided are operational rather than punitive and flow from the trustees’ statutory powers under the Act and the procedural prescriptions in the regulation.
Administrative enforcement and remedies available under the regulation
Adjustment of benefits. The primary enforcement mechanism is financial adjustment of Fund entitlements. Trustees may reduce a former member’s benefit at the former member’s request to meet superannuation contributions surcharge liabilities up to the surcharge deduction cap (s 14). Likewise, if the total surcharge amount exceeds the surcharge deduction cap, trustees may deal with any excess by reimbursing or paying amounts to the Commissioner at the former member’s request (s 13). For family law entitlements, trustees may commute pensions to pay a family law superannuation entitlement and reduce the member’s benefit in accordance with section 22 (s 23(1)). These are not sanctions in the criminal sense; they are administrative mechanisms for satisfying statutory or assessed liabilities by adjusting Fund benefits.
Interaction with Commonwealth taxation assessments. Surcharge liabilities arise from Commonwealth post-payment assessment notices under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (s 12). The regulation prescribes how trustees respond to those notices, including making payments to the Commissioner. Enforcement of the tax obligation itself is a Commonwealth matter; the regulation facilitates compliance by enabling trustees to pay amounts to the Commissioner (s 13).
Time-limited authority on interest. Trustees are not authorised to pay general interest on additional surcharge amounts assessed on or after 25 June 2004 unless the former member requests the interest be paid within a reasonable period after receiving the notice (s 15). This limits the trustees’ discretion and effectively shifts responsibility for interest payments to former members unless they request otherwise.
Notices and statutory timeframes. The regulation prescribes strict notice and payment windows: trustees must give certain notices within 28 days of operative times or receipt of orders (s 20(2)); family law payments must generally be made within 90 days in some circumstances and “as soon as practicable” in others (s 21(1)). Failure by trustees to comply with these obligations would be a failure to carry out regulatory duties and may expose trustees to accountability under the Act or administrative review mechanisms applicable to trustees, though the regulation does not itself specify sanctions.
What the regulation does not do
No criminal or explicit civil penalty provisions. The regulation contains no express criminal offences, pecuniary penalty provisions, or specified financial penalties for non-compliance with its procedural rules. Any enforcement for breaches of these duties will arise under the Act or under general law, or through administrative oversight, not through bespoke penalties in the regulation.
No direct enforcement powers to the Commissioner via the regulation. While the Commissioner of Taxation’s post-payment assessments are recognised and trustees may pay assessed amounts to the Commissioner, the regulation does not allocate investigatory, garnishee or enforcement powers to the Commissioner vis-à-vis the Fund; it specifies a mechanism for trustees to pay amounts to the Commissioner at a former member’s request (s 13).
Practical enforcement risks and consequences
Fund benefit erosion as a compliance consequence. The effective coercive tool in this architecture is the reduction or commutation of member benefits to satisfy surcharge liabilities and family law payments. These adjustments are binding in respect of the Fund’s internal accounts: reductions are applied when benefits are paid, transferred or deferred (s 22(1)-(2), s 23(2)). That creates an enforcement reality: members’ entitlements can be reduced to meet external liabilities.
Administrative risk for trustees. Trustees who fail to observe the timing, notice format or evidence requirements (ss 7, 20, 21) risk administrative error, delayed transfers, or incorrect benefit calculations. Such failures may lead to complaints or disputes, and may require rectification through Act-based processes or Commonwealth family law or tax dispute mechanisms.
Discrete limitations on trustee discretion. The regulation constrains trustees’ discretion on particular matters: for example, they cannot pay general interest on surcharge assessments after a specified date without a member request (s 15), and must use specified valuation methods for family law valuations (s 19). These constraints reduce discretionary enforcement choices available to trustees.
In short, enforcement under the regulation is implemented through administrative adjustments to Fund benefits, payment channels to the Commissioner of Taxation, and strict compliance with notice and timing rules. The instrument does not create separate penalty regimes but relies on benefit adjustments and the trustee’s administrative responsibilities as the practical means to give effect to surcharge and family law obligations.
How it interacts with other laws
The regulation is expressly designed to operate as part of a regulatory network: it implements and elaborates powers in the Parliamentary Contributory Superannuation Act 1971 and integrates with Commonwealth family law and taxation legislation and specific NSW Acts. The regulation repeatedly cross-references external instruments and borrows valuation and definitional content from them, which sets the legal contours of valuation, relationship status and tax assessment treatment.
Primary interaction with the Parliamentary Contributory Superannuation Act 1971
The regulation repeatedly references the Act as the source of trustee powers that it prescribes and clarifies. Its provisions are framed as prescriptions for how the trustees are to exercise powers under particular sections of the Act (for example, s 4 is enacted “,the Act, s 13”; s 5 “,the Act, s 16”; Part 3 provisions reference the Act, s 26D; Part 4 provisions reference ss 29C and 29E). The regulation does not override the Act but operationalises Act provisions with procedural and evidential detail.
Interaction with Commonwealth family law instruments
Valuation methods and valuation approvals are imported from Commonwealth instruments. Section 19 directs trustees to use valuation methods in the Family Law (Superannuation) Regulations 2001 for specific categories of interests and to use the “approved valuation method” defined by the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (s 19(2)-(3)). Section 20 also uses the Family Law Act 1975 definition of operative time. This means that common valuation standards and actuarial methodologies adopted at Commonwealth level apply to this NSW Fund, and that family law splitting principles established under Commonwealth law determine valuation methodology.
Interaction with Commonwealth taxation law
Part 3 explicitly incorporates the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 in defining what constitutes a post payment surcharge assessment notice and the Commissioner of Taxation (s 12). The trustees’ rights and duties to reimburse, pay excess amounts to the Commissioner, and reduce member benefits are conditioned on assessments that derive from Commonwealth tax law. This creates a channel where Commonwealth taxation assessments can be operationally satisfied through adjustments to NSW Fund benefits.
Interaction with NSW relationships and interpretation Acts
The regulation imports the definition of “registered relationship” and “interstate registered relationship” from the Relationships Register Act 2010 for the purposes of Division 2 documents and evidence rules (s 6). It also notes that the Act and the Interpretation Act 1987 contain definitions and provisions affecting interpretation (s 3 note). These cross-references mean relationship status for evidence purposes is determined by NSW registration law.
Interaction with Subordinate Legislation Act 1989
The commencement note states the regulation repeals and replaces the 2018 regulation, which “would otherwise be repealed on 1 September 2024 by the Subordinate Legislation Act 1989, s 10(2)” (s 2 note). That situates the instrument in the lifecycle of subordinate legislation and explains the replacement as a continuity measure.
Fee interaction with Commonwealth family law regulation
A note in s 21 cross-references regulation 59 of the Family Law (Superannuation) Regulations 2001 in relation to fees trustees may charge in relation to certain actions taken under s 21. That cross-reference permits trustees to recover costs in line with Commonwealth family law regulation, subject to that Commonwealth regulation.
Practical interface and potential friction points
Valuation and timing alignment. Because valuations are required to follow Commonwealth family law methodologies (s 19), trustees must align their actuarial processes with Commonwealth practice. That may require trustees to obtain actuarial advice consistent with Commonwealth-approved methods (s 14(2), s 22(2)). Any divergence in timing or valuation approach between Commonwealth and NSW processes could generate administrative friction.
Default fund allocation for non-response. Section 20(4)(e) provides that if the non-member spouse does not respond within the prescribed period and the amount is not payable under Act s 29C(3)(a), “the amount will be credited to the Aware Super Fund.” This prescribes a state-specific default allocation that interacts with Commonwealth rules on rollovers and transfers. Trustees must therefore have procedures to transfer to Aware Super Fund in default scenarios and to identify when the Act’s subsection 29C(3)(a) applies.
Commonwealth tax assessments changing member liabilities. Because surcharge liabilities arise under Commonwealth tax law and can give rise to benefit reductions under the Act as implemented by the regulation (Part 3), members of the NSW Fund can experience material balance shifts driven by Commonwealth tax reassessments. Trustees must reconcile Commonwealth assessments with Fund accounts and act at members’ requests to reimburse or to make payments to the Commissioner (s 13-14).
In summary, the regulation is not legally siloed: it imports Commonwealth valuation methodologies and taxation assessment constructs, it uses NSW relationship law for evidential definitions, and it is framed as the procedural complement to the Act. Trustees and advisers must therefore manage an administrative interface across Acts and regulations at both State and Commonwealth levels, ensuring valuations, tax assessments, notice periods and transfers are harmonised with the external instruments expressly incorporated.
Amendment history
The regulation is presented as a replacement instrument and contains an explicit repeal and savings clause. The text supplied contains the following concrete amendment history steps and contextual notes.
Repeal of the 2018 regulation. Section 25(1) explicitly repeals the Parliamentary Contributory Superannuation Regulation 2018. Section 25(2) contains a savings provision stating that acts, matters or things that had effect under the 2018 regulation immediately before repeal continue to have effect under the 2024 regulation. This ensures continuity of existing administrative effects on transition.
Commencement timing and reason for replacement. Section 2 provides that the regulation commences on the day it is published on the NSW legislation website. The commencement note explains that the regulation repeals and replaces the 2018 regulation, which would otherwise have been repealed on 1 September 2024 by operation of the Subordinate Legislation Act 1989, s 10(2). That indicates the replacement is in part a legislative housekeeping step to prevent an unintended expiry under the general automatic repeal rule and to consolidate or update procedural detail.
Definitions and new prescriptions. The 2024 regulation contains new or restated definitions and prescriptive content across Parts 2-5. Notable prescriptions include the explicit cheque-signing rule requiring two authorised signatories and the “not negotiable” marking (s 4), a prescribed 28-day period for non-member spouse responses (s 18), the incorporation of specific Commonwealth valuation schedules and an “approved valuation method” (s 19), the Aware Super Fund default allocation for non-response by non-member spouses (s 20(4)(e)), and the specific surcharge deduction cap percentages for different accrual periods (s 16). Whether these are substantively new compared to the 2018 regulation cannot be determined from the 2024 text alone; the 2024 instrument expressly replaces the earlier regulation and saves prior acts, suggesting continuity with possible refinements.
Transitional provision for family law entitlements. Section 24 contains transitional provisions for certain family law superannuation entitlements arising before 3 March 2011, prescribing that existing entitlements not able to be calculated until a benefit becomes payable are taken to be operative when the benefit becomes payable and prescribing a three-month response window for non-member spouses in certain cases. This is a transitional clarifying measure.
No internal amendment schedule or multiple versions in the provided text. The instrument as provided does not record incremental amendments since its making; rather it is presented as the operative 2024 text that repeals and replaces the 2018 regulation. The only historical trace in the text is that it replaces the 2018 instrument and saves prior acts under s 25.
For compliance and advisory purposes, the practical upshot is that this regulation should be treated as the current operative subordinate instrument replacing the 2018 regulation as of its publication date (s 2), with savings assuring that previously effective acts continue. Any review of historical changes in particular rules will require side-by-side comparison with the 2018 regulation; the 2024 regulation itself does not supply a clause-by-clause amendment table or reasons for changes beyond the saving and repeal.
Litigation history
The text of the regulation does not record any litigation history, case law, or judicial decisions interpreting its provisions. It cites external instruments and statutory provisions but does not refer to decisions of courts or tribunals. Accordingly, there is no litigation history contained within the instrument text to report.
Practical implications of an absence of litigation history in the instrument text
No precedent within the regulation. Because the regulation itself does not name any cases, and the instrument is primarily procedural, there is nothing in the text to indicate judicial interpretation or contested points arising in litigation.
Reliance on judicial interpretation of the Act and Commonwealth instruments. In practice, disputes arising from the operation of these provisions (for example, valuation methodology disputes, challenges to trustees’ reduction of benefits, or disputes over the proper response to a post-payment surcharge assessment) would likely be litigated under the Act’s dispute mechanisms or in appropriate courts and tribunals, and would involve interpretation of the Act as well as the incorporated Commonwealth instruments (for example, the Family Law (Superannuation) Regulations 2001). Any authoritative interpretation of valuation formulas, actuarial methodologies or trustees’ duties will consequently emerge from case law under those instruments rather than from the regulation itself.
Administrative review and Ombudsman complaint channels. Administrative errors concerning notice timetables, failure to follow prescribed procedures (for example, failing to give notices under s 20 or to make transfers by the timeframes in s 21), or disputes over actuarial determinations may be addressed by complaint to the trustee body, administrative review, or ultimately through judicial review or family law proceedings. The instrument does not set out dispute resolution mechanisms.
Advisory note for practitioners
When an operational question arises about interpretation (for instance, how a trustee should apply the “approved valuation method” in a particular set of facts, or whether a trustee rightly refused to pay interest under s 15), advisers should look to the Act, the incorporated Commonwealth instruments and any general administrative law principles. Because the regulation sets timing and procedural obligations, litigation will focus on whether trustees complied with those obligations and whether actuarial valuations were made according to the approved methods. Until such disputes are litigated, practitioners must rely on the text and on best-practice administrative processes.
In summary, there is no litigation history provided in the regulation. Practitioners should expect that any significant legal disputes will be resolved by reference to the Act, the incorporated Commonwealth family law and tax instruments, and the general law, and should monitor for future case law testing the regulation’s prescriptions.
Gotchas
This regulation contains several practical traps for trustees, members, former members and non-member spouses. These are not normative judgements; they are concrete operational features that commonly produce compliance risk, timing errors, cost shifts or unanticipated outcomes if missed.
Short and non‑extensible response windows
Non-member spouse prescribed period of 28 days. The prescribed period for a non-member spouse to respond to a trustee’s notice and nominate a complying fund or RSA is 28 days after receipt of the notice (s 18; s 20(2)). Practically, this is short. An administrative or postal delay, or failure to properly serve the notice, can cause the non-member spouse to miss the window and trigger the default allocation to the Aware Super Fund (s 20(4)(e)). Trustees must have robust notice and proof-of-service processes.
Default allocation to the Aware Super Fund on non-response
Default crediting may not match the non-member spouse’s preferences. Section 20(4)(e) provides that if the non-member spouse does not respond within the prescribed period, “the amount will be credited to the Aware Super Fund” provided the amount is not payable under s 29C(3)(a) of the Act. This default could move funds to an account the non-member spouse would not otherwise choose and has irreversible consequences for the ultimate holder. Trustees must ensure the notice clearly explains this outcome and records proof of sending/receipt to withstand disputes.
Complex actuarial reduction formula and need for advice
Actuarial calculations are fundamental and potentially complicated. Section 22 prescribes a formula for reducing a member spouse’s benefit after a family law payment; benefit accrual is determined by trustees in accordance with actuarial advice. Similarly, s 14 permits trustees to request actuarial advice to determine surcharge-related reductions. Trustees lacking timely and reliable actuarial advice risk incorrect reductions and subsequent disputes. The regulation expressly authorises actuarial advice but does not prescribe the process by which trustees choose or fund that advice.
Surcharge handling requires member engagement
Trustees’ payment of interest on surcharges is conditional on member request. Section 15 limits trustees’ authority to pay general interest on additional surcharge amounts charged on or after 25 June 2004 unless the former member requests payment of the interest within a reasonable period after receiving the notice. If a former member does not understand the need to request payment of interest, or misses a “reasonable period,” they may forfeit the opportunity to have the trustees pay interest on their behalf, shifting the financial burden.
Surcharge deduction cap percentages vary by accrual date
Practitioners must apply different caps depending on the accrual period. Section 16 prescribes the surcharge deduction cap as 15% for benefits accrued after 20 August 1996 and before 1 July 2003; 14.5% for accruals on or after 1 July 2003 and before 30 June 2004; and 12.5% for accruals on or after 1 July 2004 and before 30 June 2005. Applying the wrong percentage will produce incorrect deductions and potential disputes.
Timing obligations for trustees and potential for delay costs
Trustees must act within tight deadlines for family law payments. For payments under s 29C(3)(b) and s 29C(5) of the Act, trustees must make payments within 90 days of receiving a nomination or the end of the prescribed period respectively; for payments under s 29C(3)(a) they must pay “as soon as practicable” after receiving notice (s 21(1)). If trustees delay, non-member spouses may incur personal financial impact or pursue administrative remedies.
Cheque-signing technicality
Two authorised signatories and “not negotiable” marking required. Section 4 requires at least two authorised signatories and that cheques be marked “not negotiable” and drawn to order. Failure to follow this rule could invalidate a payment instrument or expose trustees to fiduciary criticisms. Trustees should ensure the signatory authorisations are maintained and reviewed.
Trustees must maintain records for each member showing amounts paid into or from the Fund (s 11). Poor record-keeping undermines trustees’ ability to calculate surcharge liability, perform family law reductions, and respond to disputes. Given the centrality of records to almost every decision in the regulation, trustees should prioritise accurate ledgers and auditable trails.
Fee recovery and notice of fees
Trustees can charge fees in relation to some family law actions by reference to Commonwealth regulation r 59 (s 21 note). Trustees should ensure that any fees charged conform with that Commonwealth regulation and that notices of fees are provided where required; otherwise they may face complaints.
Transitional complexity for older entitlements
Existing entitlements that cannot be calculated until a benefit becomes payable are treated as operative when the benefit becomes payable, and the response period for some existing entitlements is three months rather than 28 days (s 24). Practitioners handling legacy entitlements must check whether transitional rules apply and apply different response windows accordingly.
Interconnected Commonwealth processes
Trustee action depends on Commonwealth assessments and family law instruments. The regulation relies on a Commonwealth Commissioner’s assessment (s 12), and Commonwealth valuation methods (s 19). Delays or changes at Commonwealth level can therefore affect trustees’ ability to comply with NSW timeframes.
In short, the principal “gotchas” are short and binding timeframes (28 days), default allocations on non-response (Aware Super Fund), actuarial complexity, evolving surcharge caps by accrual period, and record-keeping and signatory technicalities that have concrete consequences. Trustees and advisers should build robust process controls to avoid these pitfalls.
How to comply
Compliance under this regulation requires trustees to implement documented procedures, to maintain timely records, to communicate clearly to members and spouses in writing, to obtain and rely on actuarial advice where required, and to coordinate with Commonwealth agencies and instruments. The following concrete steps, grounded in the text, set out the practical compliance blueprint.
Governance and internal controls
Implement cheque and payment controls. Ensure every cheque is signed by at least two authorised signatories, is drawn to order and is marked “not negotiable” (s 4). Maintain an up-to-date register of authorised signatories and a second-person check on signing authority, together with specimen signatures and limits on delegations.
Meeting governance and minute-keeping. The chairperson should have a standing process for setting meeting dates, calling meetings (s 5(1)), and ensuring a written record is made and retained for each meeting (s 5(2)). The vice-chairperson must be authorised to act in the chairperson’s absence (s 5(3)). Keep an index for meeting minutes, decisions taken, and evidentiary backup for actuarial decisions.
Document and evidence management
Require written communications and keep acknowledgement receipts. Enforce the regulation’s requirement that information to the trustees be in writing and addressed to the trustees (s 7). Create internal intake processes for applications, notices and requests with time‑stamped acknowledgements and proof-of-receipt procedures to establish when prescribed periods begin to run.
Implement document verification procedures. For eligibility assessments, request documentary evidence for age, relationship status and entitlement as authorised by s 8. Develop standard forms/checklists for age proof, marriage or registered relationship proof (using Relationships Register Act 2010 definitions where relevant, s 6), de facto relationship evidence and dependent child information. Maintain copies of documents on secure record systems compliant with fund privacy obligations.
Member and pensioner notifications
Promptly action cessation and address notifications. Instruct member-facing staff to accept and process immediate notifications if a person ceases to be entitled to a pension or benefit and to record the date of cessation (s 10(1)). Create an annual address verification process for pensioners and members to comply with s 10(2).
Record and ledger maintenance
Maintain individual member accounts with comprehensive transaction histories. The trustees must keep records showing amounts paid into or from the Fund in relation to each member or person entitled to benefits (s 11). Use an auditable ledger system that can produce historical valuations and support actuarial calculations.
Surcharge processes and member engagement
Establish a surcharge-response workflow. When a post-payment surcharge assessment notice is received (as defined in s 12), calculate the total surcharge amount as prescribed in s 12 and determine whether the total exceeds the surcharge deduction cap. If it does, notify the former member of options and the trustees’ ability to reimburse or pay excess to the Commissioner at the former member’s request (s 13).
Apply the surcharge deduction cap percentages. Use the percentages in s 16 according to the accrual period of the benefit. Record the basis for applying a particular percentage, and document any previously met surcharge liability (s 14(3) definitions) to determine remaining cap space.
Secure written member instructions for payment of interest. If a post-payment assessment includes general interest charged on or after 25 June 2004, obtain a written request from the former member within a reasonable period if the trustees are to pay the interest (s 15). Define internally what constitutes a “reasonable period” and document member consent.
Family law payment split compliance
Notice templates and proof-of-service. Prepare standard notices for member and non-member spouses that comply with the content prescriptions in s 20(3)-(4): estimated entitlements, calculation methods, payments timing, circumstances for payment/release/transfer, invitation to respond, and explicit warning about default crediting to the Aware Super Fund where applicable (s 20(4)(e)). Use registered post or electronic delivery with tracking to establish receipt dates for the 28‑day prescribed period (s 18).
Timetable for payments and confirmations. For the various payment circumstances, implement internal deadlines aligned to statutory timeframes: make payments as soon as practicable after receiving a non-member spouse’s notice under s 29C(3)(a) where applicable; within 90 days after receiving a non-member spouse’s nomination under s 29C(3)(b); or within 90 days after the end of the prescribed period under s 29C(5) (s 21(1)). After taking action, issue the required written notices to both spouses within 28 days explaining the amount, calculation, effect on member benefits and transferred fund details (s 21(2)).
Manage default transfers to Aware Super Fund. If the non-member spouse does not respond within the 28-day period and the payment is not payable under Act s 29C(3)(a), credit the amount to the Aware Super Fund as required by s 20(4)(e). Maintain an internal procedure to effect the credit quickly and to notify both spouses.
Valuation and actuarial processes
Use Commonwealth-approved valuation methods. For valuation of superannuation interests follow the Family Law (Superannuation) Regulations 2001 schedules and the approved valuation method referenced by s 19. Maintain documented actuarial instructions that specify assumptions, discount rates, and methods aligned with the relevant Commonwealth schedules and approvals.
Commission actuarial advice where authorised or required. The trustees may request actuarial advice to determine reductions for surcharge liabilities (s 14(2)) and must rely on actuarial advice for benefit accrual determinations required by the reduction formula in s 22. Establish procurement, engagement and documentation practices for actuarial service providers, including conflict checks and acceptance of the Family Law approved valuation methodology.
Calculation and application of benefit reductions
Apply the prescribed reduction formula and reduction factors. Use the variables described in s 22 and the reduction factor provisions in s 22(3) when multiple family law payments are made. Document each step of the calculation, including the value at the operative time, the family law payment amount, and the benefit accrual ratios used. Retain actuarial reports as part of the member file.
Administrative fees
Ensure fees charged are authorised and disclosed. Where the trustees charge fees for actions taken under s 21, ensure the fee amount is authorised under the Family Law (Superannuation) Regulations 2001, r 59 as referenced in the s 21 note. Disclose fees in notices to parties where relevant.
Transitional and legacy entitlements
Apply transitional rules for older entitlements. For existing entitlements that arose before 3 March 2011 and cannot be calculated until a benefit becomes payable, take the entitlement to be operative when the benefit becomes payable (s 24(1)), and allow the three-month response window for non-member spouses specified in s 24(2) where that transitional rule applies.
Audit, training and documentation
Train staff and trustees in prescribed procedures. Trustees and relevant staff should receive training on the written‑only communication rule (s 7), evidence requisition (s 8), surcharge handling, family law process, and the cheque-signing rule (s 4). Create checklists and standard operating procedures for commonly recurring actions.
Maintain an audit trail and records for compliance. Keep copies of notices, member responses, actuarial reports, valuation calculations, cheque signatory logs, and records of payments to the Commissioner or to the Aware Super Fund. Use retention schedules to ensure records supporting key decisions are available for the lifetime of the benefit and for any tribunal or court scrutiny.
Coordination with Commonwealth bodies and advisers
Liaise with the Commissioner where required. Where members are subject to post-payment surcharge assessment notices, ensure communication channels exist to reconcile amounts and confirm whether amounts have been paid by the former member or remain payable to the Commissioner (s 12-13).
Coordinate with legal and actuarial advisers. Where family law splits, surcharge liabilities or complex deferred benefits are at issue, involve family law practitioners and actuaries early to ensure accurate valuations and timely compliance.
In summary, compliance is a mixture of robust process controls, precise notice and proof-of-service systems, documented actuarial engagement, clear written communication to members and spouses, and tight record-keeping. Trustees should document policies that map specific regulation provisions to concrete internal procedures and escalation pathways to manage timing and valuation risks.
(1) For the Act, section 16(4), the chairperson may—
(a) decide the date, time and place for a meeting of the trustees, and
(b) call a meeting by notifying the other trustees of the date, time and place of the meeting.
(2) The chairperson must ensure a written record is kept of each meeting of the trustees.
(3) In the chairperson’s absence, the vice-chairperson may exercise the functions conferred on the chairperson by this section.
Division 2 Documents, evidence and records—the Act, s 33
Division 2 Documents, evidence and records—the Act, s 33
Division 2 Documents, evidence and records—the Act, s 33
6 Definitions
6 Definitions
6 Definitions
In this division—
interstate registered relationship has the same meaning as in the Relationships Register Act 2010.
registered relationship has the same meaning as in the Relationships Register Act 2010.
7 Information given to trustees must be in writing
7 Information given to trustees must be in writing
7 Information given to trustees must be in writing
(1) Information given to the trustees under the Act must, unless the Act specifies otherwise, be—
(a) in writing, and
(b) addressed to the trustees.
(2) In this section—
information includes an application, a notice and a request.
8 Evidence of age, relationship or entitlement
8 Evidence of age, relationship or entitlement
8 Evidence of age, relationship or entitlement
(1) The trustees may exercise the powers specified in this section to enable the trustees to determine whether a person applying for a pension or other benefit under the Act is eligible to receive the pension or benefit.
(2) The trustees may require—
(a) a member or former member to give the trustees documentary evidence of the person’s—
(i) age, and
(ii) relationship status, and
(b) the spouse or de facto partner of a member or former member to give the trustees documentary evidence of the person’s relationship to the member or former member, and
(c) a dependent child of a deceased member or former member to give the trustees specified information.
(3) In this section—
relationship status means—
(a) if the member or former member is married—the fact that the person is married, or
(b) if the member or former member is in a registered relationship, an interstate registered relationship or a de facto relationship—the fact that the person is in a relationship of that kind.
9 Trustees may require pensioner to sign declaration
9 Trustees may require pensioner to sign declaration
9 Trustees may require pensioner to sign declaration
(1) The trustees may require a person receiving a pension or other benefit under the Act to give the trustees a signed declaration that, during the period for which the pension or benefit has been paid—
(a) the person has not become a member of another Parliament, or
(b) the person has not become entitled to payment of another pension because the person—
(i) has been a member of another Parliament, or
(ii) is in a relationship with a member of another Parliament.
(2) In this section—
another Parliament means the Parliament of the Commonwealth or a Parliament of another State.
relationship means the following—
(a) a marriage,
(b) a registered relationship,
(c) an interstate registered relationship,
(d) a de facto relationship.
10 Notifications to trustees
10 Notifications to trustees
10 Notifications to trustees
(1) If a person ceases to be entitled to receive a pension or other benefit under the Act, the person must immediately notify the trustees of—
(a) the fact that the person’s entitlement has ceased, and
(b) the date on which the entitlement ceased.
(2) A person receiving a pension or other benefit under the Act must notify the trustees of a change to the address at which the person may be contacted by the trustees.
11 Records
11 Records
11 Records
The trustees must keep records in relation to each member or other person who receives, is entitled to receive, or has received, a pension or other benefit under the Act showing the amounts paid into or from the Fund in relation to the member or other person.
Part 3 Surcharge payments and benefit reductions
Part 3 Surcharge payments and benefit reductions
Part 3 Surcharge payments and benefit reductions
12 Definitions
12 Definitions
12 Definitions
In this part—
additional surcharge amount means the amount of superannuation contributions surcharge assessed to be payable by a post payment surcharge assessment notice.
Commissioner of Taxation means the person holding office for the time being as the Commissioner of Taxation under a law of the Commonwealth.
post payment surcharge assessment notice means a notice of assessment of superannuation contributions surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 of the Commonwealth in relation to employer contributions paid to the Fund on behalf of a former member.
surcharge deduction cap means the maximum surcharge deduction amount that may be determined by the trustees under the Act, section 26D(3) in relation to a benefit payable to a former member.
total surcharge amount, for a former member, means the sum of—
(a) the total amount of superannuation contributions surcharge that has been assessed to be payable in relation to employer contributions paid to the Fund on the member’s behalf, up to and including the date on which the former member receives a post payment surcharge assessment notice, and
(b) the amount, if any, of general interest charged in relation to the additional surcharge amount payable under the notice, and
(c) the amount, if any, of interest payable in relation to the surcharge debt account kept for the former member.
13 Payment by trustees in relation to additional surcharge amount—the Act, s 26D
13 Payment by trustees in relation to additional surcharge amount—the Act, s 26D
13 Payment by trustees in relation to additional surcharge amount—the Act, s 26D
(1) This section applies in relation to a former member who has paid, or is liable to pay, an additional surcharge amount to the Commissioner of Taxation.
(2) For the Act, section 26D(9), if the total surcharge amount for the former member exceeds the surcharge deduction cap, the trustees may—
(a) if the former member has paid the additional surcharge amount—reimburse the former member by paying the excess amount to the former member, or
(b) if the former member has not paid the additional surcharge amount—pay the excess amount to the Commissioner of Taxation at the former member’s request.
(3) In this section—
excess amount means—
(a) an amount equal to the amount by which the total surcharge amount for a former member exceeds the surcharge deduction cap, minus
(b) any amount the trustees previously reimbursed or paid in relation to the former member’s superannuation contributions surcharge.
14 Further reduction of certain benefits resulting from liability for superannuation contributions surcharge—the Act, s 26D
14 Further reduction of certain benefits resulting from liability for superannuation contributions surcharge—the Act, s 26D
14 Further reduction of certain benefits resulting from liability for superannuation contributions surcharge—the Act, s 26D
(1) For the Act, section 26D(9)(b), the trustees may, at the request of a former member—
(a) reduce the amount of the former member’s benefit by the lesser of—
(i) the additional surcharge amount for the former member, and
(ii) the amount, not less than $0, that is equal to the amount of the surcharge deduction cap after deducting any previously met surcharge liability, and
(b) pay the lesser amount to—
(i) the former member, or
(ii) the Commissioner of Taxation.
(2) The trustees may request actuarial advice for the purposes of determining the amount by which the former member’s benefit is to be reduced.
(3) In this section—
previously met surcharge liability means the sum of—
(a) all amounts paid by the former member in relation to the former member’s total surcharge amount to—
(i) the trustees, or
(ii) the Commissioner of Taxation, and
(b) all amounts that have previously been reduced under this section or the Act, section 26D in relation to the former member’s superannuation contributions surcharge.
15 Limitation on payment of penalty interest
15 Limitation on payment of penalty interest
15 Limitation on payment of penalty interest
Sections 13 and 14 do not authorise the trustees to pay general interest charged in relation to an additional surcharge amount payable by a post payment surcharge assessment notice received on or after 25 June 2004, unless—
(a) the former member requests payment of the interest, and
(b) the request is made within a reasonable period after the former member receives the notice.
16 Surcharge deduction amount—the Act, s 26D
16 Surcharge deduction amount—the Act, s 26D
16 Surcharge deduction amount—the Act, s 26D
For the Act, section 26D(3)(b), the following amounts are prescribed—
(a) for a benefit payable to a member or former member that accrued after 20 August 1996 and before 1 July 2003—15%,
(b) for a benefit payable to a member or former member that accrued on or after 1 July 2003 and before 30 June 2004—14.5%,
(c) for a benefit payable to a member or former member that accrued on or after 1 July 2004 and before 30 June 2005—12.5%.
Part 4 Family law provisions
Part 4 Family law provisions
Part 4 Family law provisions
17 Definition
17 Definition
17 Definition
In this part—
prescribed period means the period prescribed by section 18.
18 Prescribed period for non-member spouses to nominate fund or RSA—the Act, s 29C
18 Prescribed period for non-member spouses to nominate fund or RSA—the Act, s 29C
18 Prescribed period for non-member spouses to nominate fund or RSA—the Act, s 29C
For the Act, section 29C(5)(b), the prescribed period is 28 days after a notice under section 20(1) is received by the non-member spouse.
19 Valuation of superannuation interests—the Act, s 29E
19 Valuation of superannuation interests—the Act, s 29E
19 Valuation of superannuation interests—the Act, s 29E
(1) This section applies for the purposes of the Act, Part 4A and the family law superannuation legislation.
(2) For the Act, section 29E(h), the value of a superannuation interest of a member spouse must be determined in accordance with the following methods—
(c) for a pension first paid on or after 1 February 1990 to a member spouse who was not a member before that date—the Family Law (Superannuation) Regulations 2001 of the Commonwealth, Schedule 4,
(d) for an interest not specified in paragraphs (a)–(c)—the approved valuation method.
20 Notice to member spouse and non-member spouse when entitlement becomes payable—the Act, 29E
20 Notice to member spouse and non-member spouse when entitlement becomes payable—the Act, 29E
20 Notice to member spouse and non-member spouse when entitlement becomes payable—the Act, 29E
(1) For the Act, section 29E(e), if a superannuation interest of a member spouse is subject to a payment split, the trustees must give the member spouse and non-member spouse written notice that the interest is subject to a payment split.
(2) The trustees must give notice—
(a) for a payment split under a superannuation agreement or flag lifting agreement—within 28 days after the operative time for the payment split, or
(b) for a payment split under a splitting order—within 28 days after the later of—
(i) the operative time for the payment split, or
(ii) the trustees receiving a copy of the order.
(3) The notice given to the member spouse must specify the following—
(a) the estimated amount of the non-member spouse’s family law superannuation entitlement,
(b) how the amount was calculated,
(c) the period within which the amount will be paid,
(d) the estimated effect of the payment on the member spouse’s entitlement und
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