(aa) the receipt by a trustee of the fund of a written direction from the Regulator under subregulation 9.09(1A); or
(b) an event identified by a superannuation actuary, in accordance with paragraph 9.10(1)(c) or 9.18(9)(b), in a funding and solvency certificate relating to the fund.
period of technical insolvency, in relation to a defined benefit fund, means the period starting on the declared date and ending:
(a) in the case where the responsible actuary is able to certify the solvency of the fund within 5 years of the declared date—on the effective date of the funding and solvency certificate in which the responsible actuary so certifies; and
(b) in any other case—on the date 5 years after the declared date.
responsible actuary, in relation to a defined benefit fund, means a superannuation actuary who, under subregulation 9.19(3), has accepted responsibility for the fund during its period of technical insolvency.
special funding and solvency certificate means a funding and solvency certificate referred to in subregulation 9.18(2).
(2) In this Division, a reference to the solvency of a fund is to be read as a reference to the minimum benefit index of the fund being certified in accordance with this Division as not less than 1.
(3) In this Division, a reference to the technical insolvency of the fund is to be read as a reference to the minimum benefit index of the fund not being able to be certified in accordance with this Division as not less than 1.
9.07 Prescription of standards
For the purposes of subsection 31(1) of the Act, the standards contained in regulations 9.08, 9.09 and 9.17 are prescribed as standards applicable to the operation of defined benefit funds to which this Division applies.
9.08 Funding standard
(1) In respect of each year of income of a defined benefit fund to which this Division applies, an employer‑sponsor of the fund must pay contributions to the fund in accordance with this regulation.
(2) The contributions paid must be not less than the certified minimum contributions relating to the fund.
(3) Subject to subregulation (4), the contributions must be paid in accordance with any specification made by the superannuation actuary under paragraph 9.10(1)(g).
(4) If, under paragraph 9.10(1)(g), a superannuation actuary has specified the instalments by which the certified minimum contributions must be paid, each instalment of the contribution must be paid not later than 28 days after the date indicated by the superannuation actuary as the date on which the instalment must be paid.
(5) If the superannuation actuary has not, under paragraph 9.10(1)(g), specified payment by instalments, the contributions must be paid not later than 28 July following the end of the year of income in respect of which the contributions are payable.
9.09 Funding and solvency certificates—operating standard
(1) The trustee of a defined benefit fund to which this Division applies must, in accordance with this Division, obtain from a superannuation actuary a funding and solvency certificate in relation to the fund.
(1A) The Regulator may direct the trustee of the fund, in writing, to obtain from a superannuation actuary a new or replacement funding and solvency certificate if the Regulator considers, on reasonable grounds, that to do so would be:
(a) in the prudential interests of the fund; and
(b) in the best interests of the members of the fund.
(1B) The trustee of the fund must comply with a written direction under subregulation (1A).
(2) The trustee of the fund must, as soon as practicable, give a copy of a certificate obtained under this regulation to each employer‑sponsor who has contributed or is contributing to the fund.
9.10 Contents of funding and solvency certificates
(1) Subject to regulation 9.18 (relating to periods of technical insolvency), in the funding and solvency certificate required under regulation 9.09 in relation to a defined benefit fund, a superannuation actuary must:
(a) in accordance with regulation 9.11, 9.13(5) or 9.14(4), specify the date on which the certificate takes effect; and
(b) if subregulation 9.11(4) applies—make a statement in accordance with that subregulation; and
(c) identify any event relating to the fund that, if the event occurs during the period when the certificate is in force, should, in the opinion of the superannuation actuary, require the certificate to cease to have effect and a new certificate to be obtained; and
(d) in accordance with subregulation (2), specify the date on which the certificate expires; and
(e) certify the solvency of the fund as at the effective date of the certificate; and
(f) certify the minimum contributions reasonably expected by the superannuation actuary to be required in respect of any member or class of members to secure the solvency of the fund on the expiry date of the certificate; and
(g) if the certified minimum contributions should, in the superannuation actuary’s opinion, be paid by instalments—specify the number and amount of the instalments that must be paid and the frequency with which they must be paid; and
(h) sign and date the certificate.
(2) The date specified under paragraph (1)(d) as the date on which the certificate expires must be a date that is:
(a) not less than 12 months; and
(b) not more than 5 years;
after the effective date of the certificate.
9.11 Effective date of funding and solvency certificates
(1) The first funding and solvency certificate obtained in respect of a defined benefit fund to which this Division applies must take effect on:
(a) in the case of a fund in operation on 30 June 1994 in respect of which an actuarial investigation was carried out under paragraph 17(1)(a) of the Occupational Superannuation Standards Regulations on or after 1 July 1991—whichever of the following dates is selected by the superannuation actuary:
(i) the date of the last such actuarial investigation prior to 1 July 1994;
(ii) 1 July 1994; and
(b) in the case of a fund in operation on 30 June 1994 to which paragraph (a) does not apply—1 July 1994; and
(c) in any other case—the date on which the fund is established.
(2) Subject to subregulations 9.13(5), 9.14(4) and 9.18(8), the effective date of a funding and solvency certificate may be a date earlier than the date on which the superannuation actuary signs the certificate but must not be more than 12 months earlier than that date, except in the case of a first funding and solvency certificate to which subregulation (3) applies.
(3) If a first funding and solvency certificate takes effect in accordance with subparagraph (1)(a)(i) and the superannuation actuary signs the certificate not later than 30 June 1995, the effective date of the certificate may be more than 12 months earlier than the date on which the superannuation actuary signs the certificate.
(4) If the effective date of a funding and solvency certificate is earlier than the date on which the superannuation actuary signs the certificate, the superannuation actuary must only sign the certificate if the superannuation actuary is not aware, and makes a statement in the certificate that he or she is not aware, of any occurrence between the effective date and the date of signing that would affect the contents of the certificate.
9.12 Period of effect of funding and solvency certificates
(1) Subject to regulation 9.18, a funding and solvency certificate takes effect from and including the effective date to and including whichever of the following first occurs:
(a) the expiry date; or
(b) the date on which the certificate ceases to have effect under subregulation (2).
(2) A funding and solvency certificate relating to a defined benefit fund ceases to have effect if:
(a) amounts from the fund are released to an employer‑sponsor of the fund under section 117 of the Act; or
(b) another funding and solvency certificate takes effect in respect of the fund; or
(c) a notifiable event occurs in relation to the fund; or
(d) an employer‑sponsor of the fund fails to pay the contributions relating to the fund in accordance with subregulation 9.08; or
(e) subparagraphs (2)(a), (b), (c) and (d) do not apply and the superannuation actuary, in the performance of his or her actuarial functions under the Act or these regulations, forms the opinion that the certificate is no longer appropriate and withdraws the certificate by giving written notice of withdrawal to the trustee.
9.13 Effect of notifiable events on funding and solvency certificates
(1) In this regulation, lapsed certificate means a funding and solvency certificate that, under subregulation (2), has ceased to have effect because of the occurrence of a notifiable event.
(2) If a notifiable event occurs in relation to a defined benefit fund to which this Division applies:
(a) the existing funding and solvency certificate in relation to the fund ceases to have effect at the end of the date on which the notifiable event occurs; and
(b) the trustee of the fund must obtain a new funding and solvency certificate in accordance with this regulation.
(3) The new funding and solvency certificate must be obtained not later than 3 months after the date on which the notifiable event occurs.
(4) The new funding and solvency certificate must be of a kind specified by a superannuation actuary at the request of the trustee, being whichever of the following kinds is considered by the superannuation actuary to be most appropriate, taking into account the nature of the notifiable event and its effect on the fund:
(a) a new funding and solvency certificate having the same contents as the lapsed certificate;
(b) a new funding and solvency certificate containing such modifications of the lapsed certificate as are specified by the superannuation actuary;
(c) a new funding and solvency certificate unrelated to the lapsed certificate and relying upon new calculations to be made by the superannuation actuary.
(5) The date on which a new funding and solvency certificate obtained under subregulation (2), because of the occurrence of a notifiable event, takes effect must be the date immediately following the date on which the notifiable event occurs.
(6) The expiry date of the new funding and solvency certificate may be different from the expiry date of the lapsed certificate.
9.14 Further funding and solvency certificates to be obtained
(1) In this regulation:
effective funding and solvency certificate means a funding and solvency certificate that has taken effect and has not expired or otherwise ceased to have effect.
term, in relation to a funding and solvency certificate, means the period starting on the effective date of the certificate and ending on the expiry date of the certificate.
(2) Subject to regulations 9.13 and 9.18 and subregulation (3), the trustee of a defined benefit fund that has an effective funding and solvency certificate relating to the fund must obtain a further funding and solvency certificate relating to the fund that is signed:
(a) in the case of a certificate having a term of 4 years or less—on or before the date on which 75% of the term expires; and
(b) in the case of a certificate having a term of more than 4 years—not less than 12 months before the end of the term.
(3) If, under paragraphs 9.12(2)(a), (d) or (e), a funding and solvency certificate in relation to a fund ceases to have effect:
(a) before the expiry date specified in the certificate; and
(b) before a further funding and solvency certificate has been obtained under subregulation (2);
the trustee of the fund must obtain a further funding and solvency certificate not later than 3 months after the date on which the first‑mentioned funding and solvency certificate ceased to have effect.
(4) The date on which a further funding and solvency certificate referred to in subregulation (3) takes effect must be the date immediately following the date on which the previous funding and solvency certificate ceased to have effect.
9.15 Minimum benefit index
(1) The minimum benefit index in respect of a defined benefit fund is the index calculated in accordance with the following formula:
Start formula start fraction NRV minus BEF over FMRB end fraction end formula
(2) In this regulation:
adjusted minimum benefit index, in relation to a defined benefit fund, means:
(a) if the index calculated as at the initial date in accordance with the following formula:
Start formula start fraction NRV minus BEF over MRB end fraction end formula
is less than 1—that index; and
(b) in any other case—an index of 1.
BEF, in relation to a defined benefit fund, means the value of the benefit entitlements of former members of the fund.
benefit entitlements of former members, in relation to a defined benefit fund, means the beneficial interests in the fund (including any amount that would be payable out of those interests to the spouse, or former spouse, of the former member under a payment split) of beneficiaries (including pension beneficiaries and deferred beneficiaries) who are not standard employer‑sponsored members of the fund.
FMRB means the funded minimum requisite benefit.
funded minimum requisite benefit, in relation to a defined benefit fund, means the amount that is the sum of:
(a) the value of the pre‑initial date component of the MRB multiplied by the adjusted minimum benefit index; and
(b) the value of the post‑initial date component of the MRB.
initial date means whichever is the earlier of the following dates:
(a) the date on which the first funding and solvency certificate in relation to the defined benefit fund takes effect in accordance with subregulation 9.11(1);
(b) 1 July 1994.
MRB means the total amount of the minimum requisite benefits (including any amount that would be payable out of those benefits to the member’s spouse or former spouse under a payment split) of all current members of the fund.
net realisable value of the assets, in relation to a fund, means the amount calculated by deducting the estimated cost of disposing of the assets of the fund from the market value of those assets.
NRV, in relation to a defined benefit fund, means the net realisable value of the assets of the fund.
9.16 Non‑compliance with solvency requirement—technical insolvency
(1) If a superannuation actuary, in the course of carrying out actuarial functions in relation to a defined benefit fund, other than a fund that is technically insolvent, discovers that he or she is unable to certify the solvency of the fund as required under these regulations, the superannuation actuary must, as soon as practicable:
(a) declare, in writing signed by the superannuation actuary, that the fund is technically insolvent on the date on which the declaration is made; and
(b) deliver to the trustee a copy of the declaration of technical insolvency.
(2) A defined benefit fund is, for the purposes of these regulations, taken to be technically insolvent on and from the declared date.
9.17 Technical insolvency—operating standard
The trustee of a defined benefit fund that is taken to be technically insolvent for the purposes of these regulations must either:
(a) initiate a program in accordance with this Division that is designed by a superannuation actuary to return the fund to a position that would enable the superannuation actuary to certify the solvency of the fund in a funding and solvency certificate in accordance with regulation 9.10 not later than 5 years after the date on which the technical insolvency commenced; or
(b) initiate winding‑up proceedings in accordance with Division 9.4.
9.18 Technical insolvency program—special funding and solvency certificate
(1) In this regulation, concluding date, in relation to a funding and solvency certificate of a defined benefit fund, means whichever of the following first occurs:
(a) the expiry date; or
(b) the date on which the certificate ceases to have effect under subregulation 9.12(2).
(2) If a defined benefit fund is technically insolvent, the funding and solvency certificate that the trustee is required to obtain under regulation 9.09 must be a special funding and solvency certificate that complies with this regulation.
(3) A special funding and solvency certificate takes effect from and including the effective date to and including the concluding date.
(4) A special funding and solvency certificate (the first special funding and solvency certificate) must be obtained as soon as practicable after the date on which a defined benefit fund becomes technically insolvent and not later than 3 months after that date.
(5) The date on which the first special funding and solvency certificate obtained under subregulation (2) takes effect must be a date that is not more than 9 months earlier than the declared date.
(6) At least one further special funding and solvency certificate must be obtained in each subsequent period of 12 months following the concluding date of the first special funding and solvency certificate until the end of the period of technical insolvency.
(7) Each further special funding and solvency certificate required under subregulation (6) must be obtained not later than 3 months after the concluding date of the previous special funding and solvency certificate.
(8) The date on which a further special funding and solvency certificate required under subregulation (6) takes effect must be the date immediately following the concluding date of the previous special funding and solvency certificate.
(9) In a special funding and solvency certificate relating to a defined benefit fund, a superannuation actuary must:
(a) specify the date on which the certificate takes effect, in accordance with subregulation (5) and (8); and