Note: In order to implement the Arrangement, it is appropriate to treat a New Zealand‑sourced amount as an amount that is subject to Australia’s benefit protection standards, apart from any differences required by the Arrangement.
Reduction of amount of benefits
(2) The application of Part 5 is modified to the extent necessary to ensure that, if the trustee of a complying superannuation fund is required to reduce a member’s benefits in the complying superannuation fund by a particular amount, the trustee must:
(a) first charge the amount to the member’s benefits that are not New Zealand‑sourced amounts; and
(b) if the full amount cannot be charged under paragraph (a)—then charge the remainder to the member’s New Zealand‑sourced amounts to the extent possible.
Note: In accordance with the Arrangement, the intention is that any decrements to retirement savings balances would first be applied to host country retirement savings before being applied to retirement savings transferred from the source country.
Separate identification of New Zealand‑sourced amount
(3) The application of Part 5 is modified to the extent necessary to ensure that the trustee of a complying superannuation fund is, at all times, required to administer a member’s interest in the complying superannuation fund in a way that allows any New Zealand‑sourced amount in the fund to be identified separately.
Minimum benefit
(4) The application of Part 5 is modified to the extent necessary to ensure that a New Zealand‑sourced amount in a complying superannuation fund is treated as a minimum benefit in the same way as other amounts in the fund would be treated as minimum benefits.
12A.07 Payment standards
(1) For the purposes of implementing the Arrangement, Part 6 of these Regulations, as affected by subregulations (2) to (8):
(a) applies in relation to a New Zealand‑sourced amount that is rolled over or transferred between complying superannuation funds; and
(b) applies in relation to an amount to be paid from a complying superannuation fund to a KiwiSaver scheme to the extent necessary to allow the amount to be paid.
Note: In order to implement the Arrangement, it is appropriate to treat a New Zealand‑sourced amount as an amount that is subject to Australia’s payment standards, apart from any differences required by the Arrangement.
No payments to self managed superannuation funds
(2) The application of Part 6 in relation to a New Zealand‑sourced amount that is rolled over or transferred between complying superannuation funds is modified to the extent necessary to prohibit the rollover or transfer of a New Zealand‑sourced amount from a complying superannuation fund to a self managed superannuation fund.
No obligation to receive amount
(3) The application of Part 6 in relation to a New Zealand‑sourced amount that is rolled over or transferred between complying superannuation funds is modified to the extent necessary to ensure that it does not require the trustee of a complying superannuation fund, in any circumstances, to receive the amount.
Note: In accordance with the Arrangement, arrangements to enhance trans‑Tasman portability will be voluntary for providers as to whether they will accept transferred retirement savings.
Separate identification of New Zealand‑sourced amount
(4) The application of Part 6 in relation to a New Zealand‑sourced amount that is rolled over or transferred between complying superannuation funds is modified to the extent necessary to ensure that the trustee of a complying superannuation fund is, at all times, required to administer a member’s interest in the complying superannuation fund in a way that allows any New Zealand‑sourced amount in the fund to be identified separately.
Condition of release
(5) The application of Part 6 in relation to an amount to be paid from a complying superannuation fund to a KiwiSaver scheme is modified to the extent necessary to ensure that the amount is to be paid if the condition of release mentioned in item 113A of Schedule 1 is satisfied, and is to be paid:
(a) as a single lump sum that is at least the amount of the member’s withdrawal benefit in the fund; or
(b) if the fund receives any combination of contributions, transfers and rollovers after cashing the benefits:
(i) in a way that ensures that an amount that is at least the amount of the member’s withdrawal benefit in the fund is cashed; and
(ii) without requiring an additional application from the member.
(6) Division 6.7 does not apply to a New Zealand‑sourced amount.
Reduction of amount of benefits
(7) The application of Part 6 is modified to the extent necessary to ensure that, if the trustee of a complying superannuation fund is required to reduce a member’s benefits in the complying superannuation fund by a particular amount, the trustee must:
(a) first charge the amount to the member’s benefits that are not New Zealand‑sourced amounts; and
(b) if the full amount cannot be charged under paragraph (a)—then charge the remainder to the member’s benefits that are New Zealand‑sourced amounts to the extent possible.
Note: In accordance with the Arrangement, the intention is that any decrements to retirement savings balances would first be applied to host country retirement savings before being applied to retirement savings transferred from the source country.
Preserved benefits
(8) The application of Part 6 is modified to the extent necessary to ensure that a New Zealand‑sourced amount in a complying superannuation fund is treated as preserved benefits in the same way as other amounts in the fund would be treated as preserved benefits.
12A.08 Contribution and benefit accrual standards
(1) For the purposes of implementing the Arrangement, Part 7 of these Regulations, as affected by subregulations (2) to (7), applies in relation to a request to a complying superannuation fund to receive an amount from a KiwiSaver scheme.
Note: In order to implement the Arrangement, it is appropriate to treat a New Zealand‑sourced amount as an amount that is subject to Australia’s contribution and benefit accrual standards, apart from any differences required by the Arrangement.
Additional information
(2) The application of Part 7 is modified to the extent necessary to ensure that, if a request is made to a complying superannuation fund to receive an amount from a KiwiSaver scheme:
(a) the trustee of the complying superannuation fund may request the following information (in addition to other information that the trustee may require under Part 7):
(i) details of any New Zealand sourced amount, returning New Zealand‑sourced amount or Australian‑sourced amount that forms part of the amount to be received;
(ii) the amount of any tax free component of an Australian‑sourced amount;
(iii) any amounts that were restricted non‑preserved benefits or unrestricted non‑preserved benefits;
(iv) any other information the trustee reasonably requires; and
(b) the KiwiSaver scheme or the member may give the trustee of the complying superannuation fund any details requested under paragraph (a); and
(c) any information requested under paragraph (a), or provided by the KiwiSaver scheme provider or the member under paragraph (b), is given to the trustee of the complying superannuation fund before the trustee decides whether to receive the amount from the KiwiSaver scheme.
Separate identification of New Zealand‑sourced amount
(3) The application of Part 7 is modified to the extent necessary to ensure that the trustee of a complying superannuation fund is, at all times, required to administer a member’s interest in the complying superannuation fund in a way that allows any New Zealand‑sourced amount in the fund to be identified separately.
No obligation to receive amount
(4) The application of Part 7 is modified to the extent necessary to ensure that it does not require the trustee of a complying superannuation fund, in any circumstances, to receive an amount from a KiwiSaver scheme.
Note: In accordance with the Arrangement, arrangements to enhance trans‑Tasman portability will be voluntary for providers as to whether they will accept transferred retirement savings.
Member contribution
(5) The application of Part 7 is modified to the extent necessary to ensure that an amount received by a complying superannuation fund from a KiwiSaver scheme is treated as a contribution and a member contribution.
Division 3—Payment of amount to KiwiSaver scheme
12A.09 Application of Division 3
This Division applies in relation to an amount to be paid to a KiwiSaver scheme by a complying superannuation fund.
12A.10 Payment
(1) The application of these Regulations in relation to the payment is modified to the extent necessary to ensure that they do not prevent the payment from being made in the manner described in this regulation.
Note: In accordance with the Arrangement, arrangements to enhance trans‑Tasman portability will be voluntary for individuals as to whether they transfer their retirement savings between Australia and New Zealand.
Payment of whole of withdrawal benefit
(2) The application of these Regulations is modified to the extent necessary to ensure that they:
(a) permit the trustee of a complying superannuation fund to pay the whole of a member’s withdrawal benefit to a KiwiSaver scheme; and
(b) prohibit the trustee, in any circumstances, from paying only a part of a member’s withdrawal benefit to a KiwiSaver scheme.
Information before payment can be made
(3) The application of these Regulations is modified to the extent necessary to ensure that they prevent the trustee of a complying superannuation fund, in any circumstances, from paying an amount to a KiwiSaver scheme until the trustee is satisfied about the following matters:
(a) the member has emigrated permanently to New Zealand;
(b) the member has given the trustee:
(i) a statutory declaration stating that the member has emigrated permanently to New Zealand; and
(ii) proof of residence at an address in New Zealand following the member’s emigration to New Zealand;
(c) the member has requested and consented to the payment of the whole of the member’s withdrawal benefit;
(d) the member has opened a KiwiSaver scheme account;
(e) the trustee has been given details of the KiwiSaver scheme and the account number to which the amount is to be paid;
(f) the KiwiSaver scheme provider will accept the amount.
(4) For subregulation (3), the application of these Regulations is modified to the extent necessary to ensure that the trustee may require that a document or other evidence or information is verified by oath, affirmation or statutory declaration.
Payment within 30 days
(5) The application of these Regulations is modified to the extent necessary to ensure that the trustee must pay the amount no later than 30 days after the trustee is satisfied about all of the matters mentioned in subregulation (3).
(6) A reference in paragraph (3)(b) or subregulation (4) to a statutory declaration includes a reference to an equivalent declaration (however described) made under a law of New Zealand.
Division 4—Conditions of release of benefits
12A.11 Application of Division 4
This Division applies in relation to a New Zealand‑sourced amount in a complying superannuation fund.
12A.12 Conditions of release
(1) For the purposes of implementing the Arrangement, Schedule 1 to these Regulations, as affected by this regulation, applies in relation to a New Zealand‑sourced amount in a complying superannuation fund in the same way it would apply to any other amount in the fund.
Note: In order to implement the Arrangement, it is appropriate that a New Zealand‑sourced amount in a complying superannuation fund is subject to Australia’s conditions of release, apart from any differences required by the Arrangement.
(2) The application of Schedule 1 is modified to the extent necessary to ensure that:
(a) the New Zealand‑sourced amount is not subject to the conditions of release in items 101 and 110 of the Schedule; and
(b) item 106 of the Schedule applies to the New Zealand‑sourced amount as if the reference in the item to a person’s age were the age specified in subsection 7(1) of the New Zealand Superannuation and Retirement Income Act 2001 of New Zealand.
Part 13—Miscellaneous
Division 13.1A—Transitional arrangements arising out of the Superannuation Legislation Amendment Act (No. 3) 1999
OSS Act means the Occupational Superannuation Standards Act 1987, as in force on 30 June 1994.
preserved OSS Act provisions means the following provisions of the OSS Act that, despite amendment or repeal by the Occupational Superannuation Standards Amendment Act 1993 (the Amendment Act), have continued to apply under subsection 16(1) of the Amendment Act:
(a) sections 4, 5, 6 and 6A;
(b) Part II;
(c) sections 10 to 15CA inclusive;
(d) Part IIIAA;
(e) the remaining provisions of the OSS Act in so far as they relate to any or all of the provisions mentioned in the preceding paragraphs of this definition.
superannuation standards officer has the meaning given by the OSS Act.
(2) If a preserved OSS Act provision provides that a thing must, or may, be done by the Insurance and Superannuation Commissioner, and the thing is to be done in respect of a self managed superannuation fund, the thing is validly done if done by the Commissioner of Taxation.
(3) If a preserved OSS Act provision provides that an action, must, or may, be taken in relation to the Insurance and Superannuation Commissioner and a superannuation fund, and the fund in relation to which the action is to be taken is a self managed superannuation fund, the action is validly taken if taken in relation to the fund and the Commissioner of Taxation.
(4) If a preserved OSS Act provision imposes an obligation on the Insurance and Superannuation Commissioner, and the obligation is to be carried out in relation to a self managed superannuation fund, the obligation is taken to be imposed on the Commissioner of Taxation, and may be carried out by a member of the Commissioner of Taxation’s staff.
(5) If a preserved OSS Act provision grants an immunity or privilege to the Insurance and Superannuation Commissioner or a superannuation standards officer, the immunity or privilege is taken, in relation to a self managed superannuation fund, to be an immunity or privilege of the Commissioner of Taxation and a member of the Commissioner of Taxation’s staff.
13.10B Outstanding annual returns
(1) This regulation applies to the trustee of a fund if subsection 252G(1) of the Act requires the trustee to give an annual return, a report, or information to the Commissioner of Taxation.
(2) Despite subsection 252G(1) of the Act, the trustee continues, until 30 June 2000, to be under an obligation to give the annual return, report or information to APRA rather than to the Commissioner.
13.10C Outstanding amounts
(1) This regulation applies to the trustee of a fund if subsection 252G(3) of the Act requires the trustee of the fund to pay an amount to the Commissioner of Taxation.
(2) Despite subsection 252G(3) of the Act, the trustee continues, until 30 June 2000, to be under an obligation to pay the amount to APRA rather than to the Commissioner.
13.10D Certain annual returns and amounts for 1999‑2000 year of income
(1) This regulation is made for section 252H of the Act.
(2) If the trustee of a superannuation entity that was a self managed superannuation fund at any time during the 1999‑2000 year of income of the entity gives an annual return for that year of income of the entity before 1 July 2000, and the Act requires the return to be given to the Commissioner of Taxation, the trustee is taken to have complied with the requirement if the trustee gives the return to APRA.
(3) If the trustee of a superannuation entity mentioned in subregulation (1) pays, under a prescribed Act, an amount before 1 July 2000 in respect of the 1999‑2000 year of income of the entity, and the Act requires the amount to be paid to the Commissioner of Taxation, the trustee is taken to have complied with the requirement if the trustee pays the amount to APRA rather than to the Commissioner.
(4) In subregulation (3):
prescribed Act has the same meaning as in section 252G of the Act.
Division 13.2—Various operating standards
13.11 Interpretation
In this Division:
charge includes a mortgage, lien or other encumbrance.
recognise includes act on or give effect to.
13.12 Assignments of superannuation interests
For the purposes of subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that, subject to regulation 13.15, the trustee of a fund must not recognise, or in any way encourage or sanction, an assignment of a superannuation interest of a member or beneficiary.
13.13 Charges over a member’s benefits
(1) For the purposes of subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that, subject to regulation 13.15, the trustee of a fund must not recognise, or in any way encourage or sanction, a charge over, or in relation to a member’s benefits.
(2) In this regulation:
charge does not include a specific charge if:
(a) the charge was exercised in respect of particular benefits of a member before the fund became a regulated superannuation fund or an approved deposit fund (as the case may be); and
(b) the trustee was permitted, under the Occupational Superannuation Standards Regulations or the Superannuation Industry (Supervision) (Transitional Provisions) Regulations, to recognise the charge.