Note 1: Subsections 90XL(4) and 90YP(4) of the Family Law Act 1975 provide that while a payment flag is operating on a superannuation interest, the trustee must not make any splittable payment to any person in respect of the interest.
Note 2: Subsections 90XU(1) and 90YZ(1) of the Family Law Act 1975 provide that a court may make an order in relation to a superannuation interest directing the trustee not to make a splittable payment in respect of the interest without the leave of the court.
6.17B Duty to seek information
If an item of information given by a member in a notice under subregulation 6.17A(4) is not sufficiently clear to allow the trustee to pay the benefit, the trustee must seek from the member a written statement to clarify the item as soon as practicable after the trustee receives the notice.
Example: If the proportion of the benefit that will be paid to the person, or to each person, mentioned in the notice is not certain, or is not readily ascertainable from the notice given by the member, the trustee must seek a statement of that proportion from the member.
6.17C Payment and commutation of pension in breach of standards
If a regulated superannuation fund provides a pension under rules which meet the standards of subregulation 1.06(2), (7) or (8), the trustee must not:
(a) pay the pension in a way that does not meet the standards of the relevant subregulation; or
(b) allow the pension to be commuted except in accordance with the relevant subregulation.
6.17D Benefits to be paid as soon as practicable where member satisfies compassionate ground relating to coronavirus
(1) For the purposes of subsections 31(1) and 32(1) of the Act, the standard set out in subregulation (3) is applicable to the operation of regulated superannuation funds and approved deposit funds.
(2) This regulation applies if:
(a) the Regulator has determined under subregulation 6.19B(3) (about coronavirus) that a specified amount of benefits in the fund may be released on a compassionate ground; and
(b) the trustee of the fund receives from the Regulator a copy of the determination as referred to in subregulation 6.19B(6).
Note: See items 107A and 207AA of Schedule 1.
(3) The trustee must pay the benefits to the member as soon as practicable after the trustee receives the copy of the determination, without requiring any additional application from the member.
(4) However, subregulation (3) does not apply if it would require the trustee to pay benefits from a defined benefit interest.
6.18 Voluntary cashing of preserved benefits in regulated superannuation funds
(1) A member’s preserved benefits in a regulated superannuation fund may be cashed on or after the satisfaction by the member of a condition of release.
Note: For conditions of release for temporary residents, see regulation 6.01B.
(2) The amount of preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the sum of:
(a) the amount of preserved benefits of the member that had accrued at the time when the member satisfied the condition of release; and
(b) before 1 July 1999—the amount of any investment earnings accruing on those benefits from the time when the member satisfied the condition of release.
(3) Subject to subregulation (4), the form in which preserved benefits may be cashed under this regulation is, unless the satisfied condition of release is the death of the member:
(a) a form (if any) specified in Schedule 1 as a cashing restriction relating to the condition of release; or
(b) if the specified cashing restriction is ‘Nil’—any 1 or more of the following forms:
(i) 1 or more lump sums;
(ii) 1 or more pensions;
(iii) the purchase of 1 or more annuities.
Note: For the cashing requirement applying on the death of the member, see regulation 6.21.
(4) A lump sum mentioned in subparagraph (3)(b)(i) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 6.21(2)(a).
6.19 Voluntary cashing of restricted non‑preserved benefits in regulated superannuation funds
(1) A member’s restricted non‑preserved benefits in a regulated superannuation fund may be cashed on or after the satisfaction by the member of a condition of release.
Note: For conditions of release for temporary residents, see regulation 6.01B.
(2) The amount of restricted non‑preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the amount of:
(a) the restricted non‑preserved benefits of the member that had accrued at the time when the member satisfied the condition of release; and
(b) before 1 July 1999—any investment earnings accruing on those benefits from the time when the member satisfied the condition of release.
(3) Subject to subregulation (4), the form in which restricted non‑preserved benefits may be cashed under this regulation is, unless the satisfied condition of release is the death of the member:
(a) a form (if any) specified in Schedule 1 as a cashing restriction relating to the condition of release; or
(b) if the specified cashing restriction is ‘Nil’—any 1 or more of the following forms:
(i) 1 or more lump sums;
(ii) 1 or more pensions;
(iii) the purchase of 1 or more annuities.
Note: For the cashing requirement applying on the death of the member, see regulation 6.21.
(4) A lump sum mentioned in subparagraph (3)(b)(i) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 6.21(2)(a).
6.19A Release of benefits on compassionate grounds
(1) A person may apply to the Regulator for a determination that an amount of the person’s preserved benefits, or restricted non‑preserved benefits, in a specified superannuation entity may be released on the ground that it is required:
(a) to pay for medical treatment or medical transport for the person or a dependant; or
(b) to enable the person to make a payment on a loan, to prevent:
(i) foreclosure of a mortgage on the person’s principal place of residence; or
(ii) exercise by the mortgagee of an express, or statutory, power of sale over the person’s principal place of residence; or
(c) to modify the person’s principal place of residence, or vehicle, to accommodate the special needs of the person, or a dependant, arising from severe disability; or
(d) to pay for expenses associated with the person’s palliative care, in the case of impending death; or
(e) to pay for expenses associated with a dependant’s:
(i) palliative care, in the case of impending death; or
(ii) death; or
(iii) funeral; or
(iv) burial; or
(f) to meet expenses in other cases where the release is consistent with a ground mentioned in paragraphs (a) to (e), as the Regulator determines.
(2) The Regulator must determine, in writing, that the person has satisfied, for the purposes of subregulation 6.18(1) or 6.19(1), a condition of release on a compassionate ground if the Regulator is satisfied that:
(a) the release is required on a ground mentioned in subregulation (1); and
(b) the person does not have the financial capacity to meet an expense arising from that ground.
(3) The Regulator cannot be satisfied that money is required for medical treatment unless 2 registered medical practitioners (at least one of whom must be a specialist) certify that:
(a) the medical treatment is necessary to:
(i) treat a life threatening illness or injury; or
(ii) alleviate acute, or chronic, pain; or
(iii) alleviate an acute, or chronic, mental disturbance; and
(b) the treatment is not readily available to the person, or the dependant, through the public health system.
(4) The Regulator cannot be satisfied that money is required for medical transport unless the medical treatment for which the medical transport is required has been certified, under subregulation (3), as necessary for a reason mentioned in paragraph (3)(a).
(5) The Regulator cannot be satisfied that money is required on the ground mentioned in paragraph (1)(b) unless the person gives to the Regulator a written statement from the mortgagee that:
(a) payment of an amount is overdue; and
(b) if the person fails to pay the amount, the mortgagee will:
(i) foreclose the mortgage on the person’s principal place of residence; or
(ii) exercise its express, or statutory, power of sale over the person’s principal place of residence.
(6) A statement under subregulation (5) must include the following information:
(a) the amount that is equal to 3 months’ repayments under the mortgage; and
(b) the amount that is 12 months’ interest on the outstanding balance of the loan at the time the statement is made.
(6A) A determination under this regulation must specify the superannuation entity and the amount of the preserved benefits, or restricted non‑preserved benefits, that may be released.
(6B) If the Regulator makes a determination under this regulation, the Regulator must give a copy of the determination to the person and the trustee of the specified superannuation entity.
(7) In this regulation:
medical transport means transport, for medical attention, by land, water or air.
6.19B Release of benefits on compassionate ground—coronavirus
(1) A person may apply to the Regulator for a determination that an amount of the person’s preserved benefits, or restricted non‑preserved benefits, in a specified superannuation entity or entities may be released on the ground that it is required to assist the person to deal with the adverse economic effects of the coronavirus known as COVID‑19 if:
(a) unless paragraph (b) applies—subregulation (1A) applies in respect of the person; or
(b) in a case where regulation 6.01B (temporary residents) applies to the person:
(i) the person is covered by subregulation (1B); and
(ii) subregulation (1C) applies in respect of the person.
(1AA) For the purposes of subregulation (1), treat a permanent resident of New Zealand as being a permanent resident.
(1A) For the purposes of paragraph (1)(a), this subregulation applies in respect of the person if:
(a) the person is unemployed; or
(b) the person is eligible to receive any of the following under the Social Security Act 1991:
(i) jobseeker payment;
(ii) parenting payment;
(iii) special benefit; or
(c) the person is eligible to receive youth allowance under the Social Security Act 1991 (other than on the basis that the person is undertaking full‑time study or is a new apprentice); or
(d) the person is eligible to receive farm household allowance under the Farm Household Support Act 2014; or
(e) on or after 1 January 2020 the person was made redundant, or their working hours were reduced by 20% or more (including to zero); or
(f) for a person who is a sole trader—on or after 1 January 2020 the person’s business was suspended or suffered a reduction in turnover of 20% or more.
(1B) For the purposes of subparagraph (1)(b)(i), this subregulation covers the person if:
(a) the person is the holder of a student visa; or
(b) the person is the holder of any of the following visas, as mentioned in the Migration Regulations 1994:
(i) a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a Subclass 482 (Temporary Skill Shortage) visa; or
(c) the person is a temporary resident, and is not the holder of a visa mentioned in paragraph (a) or (b).
(1C) For the purposes of subparagraph (1)(b)(ii), this subregulation applies in respect of the person if:
(a) in a case where paragraph (1B)(a) applies:
(i) the person has held a student visa for 12 months or more; and
(ii) the person is unable to meet his or her immediate living expenses; or
(b) in a case where paragraph (1B)(b) applies:
(i) the person is employed; and
(ii) the person is unable to meet his or her immediate living expenses; or
(c) in a case where paragraph (1B)(c) applies—the person is unable to meet his or her immediate living expenses.
(2) A person may make one or more applications under subregulation (1) as follows:
(a) one in the financial year ending 30 June 2020; and
(b) in a case where paragraph (1)(a) applies—one in the financial year ending 30 June 2021.
However, no application may be made after 31 December 2020.
(3) The Regulator must determine, in writing, that the person has satisfied, for the purposes of subregulation 6.18(1) or 6.19(1), the condition of release on a compassionate ground if the Regulator has not already made a determination under this regulation or regulation 4.22B of the Retirement Savings Account Regulations 1997 in relation to the person in respect of an application made by the person in the financial year.
(4) For the purposes of subregulation (3), treat a revoked determination as not having been made.
(5) A determination under this regulation must specify the superannuation entity or entities and the amount of the preserved benefits, or restricted non‑preserved benefits, that may be released from each specified entity. The sum of the amounts specified in a determination must not exceed $10,000.
(6) If the Regulator makes a determination under this regulation, the Regulator must give a copy of the determination to the person and the trustee of each specified superannuation entity.
6.20 Voluntary cashing of unrestricted non‑preserved benefits in regulated superannuation funds
(1) A member’s unrestricted non‑preserved benefits in a regulated superannuation fund may be cashed at any time.
(2) The amount of unrestricted non‑preserved benefits that may be cashed in accordance with subregulation (1) is the whole or part of the member’s unrestricted non‑preserved benefits in the fund.
(3) Subject to subregulation (4), the form in which unrestricted non‑preserved benefits may be cashed under this regulation is, unless the cashing occurs in consequence of the death of the member, any one or more of the following forms:
(a) one or more lump sums;
(b) one or more pensions;
(c) the purchase of one or more annuities.
Note: For the cashing requirement applying on the death of the member, see regulation 6.21.
(4) A lump sum mentioned in paragraph (3)(a) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 6.21(2)(a).
6.20A Compulsory cashing of benefits in a regulated superannuation fund that is not an unfunded public sector superannuation scheme—temporary residents
(1) This regulation applies to a member’s benefits in a regulated superannuation fund that is not an unfunded public sector superannuation scheme if:
(a) the member:
(i) was a temporary resident; and
(ii) is not an Australian citizen, New Zealand citizen or permanent resident; and
(iii) has left Australia; and
(b) the member’s visa has ceased to be in effect.
(1A) The member’s benefits must be cashed if:
(a) the trustee of the fund receives a request from the member that the benefits be cashed; and
(b) subregulation (2) or (3) is complied with.
(2) If the member’s withdrawal benefit in the fund is less than $5 000, the trustee of the fund must receive:
(a) a copy, or other evidence, of a visa showing that the member was a temporary resident but the member’s temporary visa has ceased to be in effect; and
(b) a copy of the member’s passport showing that the member has left Australia.
(3) The trustee of the fund must be satisfied, based on a written statement from the Immigration Department, that:
(a) the member was a temporary resident but the member’s temporary visa has ceased to be in effect; and
(b) the member has left Australia.
(3A) For subregulation (3), the statement may be in electronic form.
(4) The benefits must be cashed in the period mentioned in subregulation (5):
(a) as a single lump sum that is at least the amount of the member’s withdrawal benefit in the fund; or
(b) if the fund receives any combination of contributions, transfers and rollovers after cashing the benefits:
(i) in a way that ensures that an amount that is at least the amount of the member’s withdrawal benefit in the fund is cashed; and
(ii) without requiring an additional application from the member.
(5) For subregulation (4), the period is:
(a) if the trustee of the fund receives a request from the member not later than 31 October 2002—3 months after the request is lodged; and
(b) in any other case—28 days after the request is lodged.
Note: A payment made under this regulation is a departing Australia superannuation payment within the meaning of section 301‑170 of the 1997 Tax Act.
6.20B Voluntary cashing of benefits in a regulated superannuation fund that is an unfunded public sector superannuation scheme—temporary residents
(1) This regulation applies to a member’s benefits in a regulated superannuation fund that is an unfunded public sector superannuation scheme if:
(a) the member:
(i) was a temporary resident; and
(ii) is not an Australian citizen, New Zealand citizen or permanent resident; and
(iii) has left Australia; and
(b) the member’s visa has ceased to be in effect.
(1A) The member’s benefits may be cashed if:
(a) the trustee of the fund receives a request from the member that the benefits be cashed; and
(b) subregulation (2) or (3) is complied with.
(2) If the member’s withdrawal benefit in the fund is less than $5 000, the trustee of the fund must receive:
(a) a copy, or other evidence, of a visa showing that the member was a temporary resident but the member’s temporary visa has ceased to be in effect; and
(b) a copy of the member’s passport showing that the member has left Australia.
(3) The trustee of the fund must be satisfied, based on a written statement from the Immigration Department, that:
(a) the member was a temporary resident but the member’s temporary visa has ceased to be in effect; and
(b) the member has left Australia.
(3A) For subregulation (3), the statement may be in electronic form.
(4) If the benefits are cashed, the benefits must be cashed: