(3) A payment split in respect of a member’s interest in a superannuation fund is not a charge over or in relation to the member’s benefits for subregulation (1).
(4) This regulation does not apply to a charge imposed under the Public Officers Superannuation Benefits Recovery Act 1988 (Qld) in relation to a member’s benefits in the scheme established under the Superannuation (State Public Sector) Act 1990 (Qld).
13.14 Charges over assets of funds
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 regulations 13.15 and 13.15A, the trustee of a fund must not give a charge over, or in relation to, an asset of the fund.
13.15 Restrictions on the standards
The standards stated in regulations 13.12, 13.13 and 13.14 do not apply to an assignment or charge that is permitted, expressly or by necessary implication, by the Act or these regulations.
13.15A Charges in relation to certain derivatives contracts
(1) A trustee may give a charge over, or in relation to, an asset of a fund if:
(a) the charge is given in relation to a derivative to which either of the following is a party:
(i) the trustee;
(ii) another person (the agent) acting on behalf of, on the instructions of, on account of or for the benefit of the trustee; and
(b) the charge complies with subregulation (1A), (1B) or (1C); and
(c) the fund has in place a derivatives risk statement that sets out:
(i) policies for the use of derivatives that include an analysis of the risks associated with the use of derivatives within the investment strategy of the fund; and
(ii) restrictions and controls on the use of derivatives that take into consideration the expertise of staff; and
(iii) compliance processes to ensure that the controls are effective (for example, reporting procedures, internal and external audits and staff management procedures); and
(d) the investment to which the charge relates is made in accordance with the derivatives risk statement.
(1A) A charge complies with this subregulation if it is given in order to comply with a requirement, in either of the following, that the performance of obligations in relation to the derivative be secured:
(a) rules governing the operation of an approved body (as defined in subregulation (2));
(b) a law of the Commonwealth, a State, a Territory or a foreign country (including a part of a foreign country) that applies to dealings in the derivative.
(1B) A charge complies with this subregulation if:
(b) the agent enters into an arrangement that is a derivative on behalf of, on the instructions of, on account of or for the benefit of the trustee; and
(c) the agent is obliged under either of the following to keep the property of the trustee separate from the property of the agent:
(i) rules governing the operation of an approved body (as defined in subregulation (2));
(ii) a law of the Commonwealth, a State, a Territory or a foreign country (including a part of a foreign country) that applies to dealings in the derivative; and
(d) the agent is under an obligation, or but for a netting‑off would be under an obligation, to transfer property to another entity in relation to the derivative; and
(e) the charge is given over an asset or assets of the fund, to secure the performance of an obligation or obligations in relation to the derivative.
(1C) A charge complies with this subregulation if:
(a) the asset over which the charge is given is financial property; and
(b) the obligations secured by the financial property are any of the following:
(i) an obligation of the trustee that relates to the derivative;
(ii) an obligation of the trustee to pay interest on an obligation covered by subparagraph (i);
(iii) an obligation of the trustee to pay costs and expenses incurred in connection with enforcing a charge given in respect of an obligation covered by subparagraph (i) or (ii); and
(c) the financial property is transferred or otherwise dealt with so as to be in the possession or under the control of:
(i) the secured person; or
(ii) another person (who is not the trustee), on behalf of the secured person, under the terms of an arrangement evidenced in writing.
(1D) For the purposes of paragraph (1C)(c), financial property is taken not to be in the possession or control of a person mentioned in that paragraph if, under the charge, the trustee is free to deal with the financial property in the ordinary course of business until the person’s interest in the financial property becomes fixed and enforceable.
(1E) Without limiting paragraph (1C)(c), financial property is taken to be in the possession of a person for the purposes of that paragraph if:
(a) in a case where there is an issuer of the financial property—the person is registered by, or on behalf of, the issuer as the registered owner of the financial property; or
(b) in a case where the financial property is intermediated financial property—the person is the person in whose name the intermediary maintains the account.
(1F) Without limiting paragraph (1C)(c), financial property is taken to be under the control of a person for the purposes of that paragraph if:
(a) the financial property is intermediated financial property; and
(b) the intermediary is not the trustee (but may be the secured person or any other person); and
(c) there is an agreement in force between the intermediary and one or more other persons, one of which is the secured person or the trustee; and
(d) the agreement has one or more of the following effects:
(i) the person in whose name the intermediary maintains the account is not able to transfer or otherwise deal with the financial property;
(ii) the intermediary must not comply with instructions given by the trustee in relation to the financial property without seeking the consent of the secured person (or a person who has agreed to act on the instructions of the secured person);
(iii) the intermediary must comply, or must comply in one or more specified circumstances, with instructions (including instructions to debit the account) given by the secured person in relation to the intermediated financial property without seeking the consent of the trustee (or any person who has agreed to act on the instructions of the trustee).
(1G) Without limiting paragraph (1C)(c), the fact that the trustee retains a right of one or more of the following kinds does not of itself stop that paragraph from being satisfied:
(a) right to receive and withdraw income in relation to the financial property;
(b) right to receive notices in relation to the financial property;
(c) right to vote in relation to the financial property;
(d) right to substitute other financial property that the parties agree is of equivalent value for the financial property;
(e) right to withdraw excess financial property;
(f) right to determine value of financial property.
(2) In this regulation:
approved body means a body mentioned in Schedule 4.
derivative means any of the following:
(a) a derivative (within the meaning of Chapter 7 of the Corporations Act 2001);
(b) a foreign exchange contract (within the meaning of that Act);
(c) an arrangement that is a forward, swap or option, or any combination of those things, in relation to one or more commodities;
but does not include any arrangement that is of a kind mentioned in subregulation 6(2) of the Payment Systems and Netting Regulations 2001.
Note: Subregulation 6(2) of the Payment Systems and Netting Regulations 2001 identifies obligations that are not eligible obligations in relation to a close‑out netting contract. The arrangements mentioned include credit facilities, reciprocal purchase agreements (otherwise known as repurchase agreements), sell‑buyback arrangements, securities loan arrangements, contracts of insurance and managed investment schemes.
financial property has the same meaning as in the Payment Systems and Netting Act 1998.
intermediary has the same meaning as in paragraph (h) of the definition of financial property in section 5 of the Payment Systems and Netting Act 1998.
intermediated financial property has the same meaning as in the Payment Systems and Netting Act 1998.
13.16 Accrued benefits—restriction on alteration
(1) For the purposes of subsection 31(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds that, subject to subregulation (2), a beneficiary’s right or claim to accrued benefits, and the amount of those accrued benefits, must not be altered adversely to the beneficiary by amendment of the governing rules or by any other act carried out, or consented to, by the trustee of the fund.
(2) The standard stated in subregulation (1) does not apply to an alteration if:
(a) in the case of an alteration that does not relate to minimum benefits within the meaning of Part 5:
(i) subject to subregulation (3), written consent to the alteration has been given by:
(A) the beneficiary; and
(B) if the benefits are subject to a payment split, the non‑member spouse; or
(ii) the Regulator has consented in writing to the alteration after either:
(A) the alteration has been approved by at least two‑thirds of all of the beneficiaries of the fund who are affected by it, in accordance with the procedures specified in subregulation (4); or
(B) subject to subregulation (5), if, in accordance with section 89 of the Act, the fund complies with the basic equal representation rules, the alteration has been approved by at least two‑thirds of the total number of trustees or, if the fund has a single corporate trustee, by two‑thirds of the directors of the corporate trustee; or
(b) the alteration is necessary for compliance with:
(i) the Act, the Income Tax Act 1986, the Superannuation (Unclaimed Money and Lost Members) Act 1999, the Tax Act or the 1997 Tax Act; or
(ii) regulations made under any of those Acts; or
(c) the alteration is expressly permitted by the Act or these regulations; or
(d) the alteration:
(i) is solely for the purpose of rectifying a mistake which has resulted in a beneficiary’s right or claim to accrued benefits, or the amount of the beneficiary’s accrued benefits, being advantageously altered; and
(ii) the Regulator has approved the alteration; or
(e) the alteration:
(i) affects only the benefits of members in respect of whom assessments under section 15 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 have been made; and
(ii) serves to enable the trustee:
(A) to be reimbursed for an amount paid, or to be paid, under that Act and the Superannuation Contributions Tax (Imposition) Act 1997; or
(B) in relation to an amount paid before reimbursement occurs—to charge interest on the amount paid; or
(f) the alteration is made:
(i) to give effect to a payment split; or
(ii) as a consequence of the trustee taking action that, because of Part 3 of the Family Law (Superannuation) Regulations 2025, has the effect that a future payment in respect of the superannuation interest of the member spouse would not be a splittable payment; or
(iii) as a consequence of the operation of a fund’s governing rules that, because of Part 3 of the Family Law (Superannuation) Regulations 2025, has the effect that a future payment in respect of the superannuation interest of the member spouse would not be a splittable payment; or
(g) the alteration enables the trustee to be reimbursed for an amount paid, or to be paid, under section 24 of the Co‑contribution Act; or
(h) the alteration enables the trustee to be reimbursed for an amount paid, or to be paid, under section 115P of the Paid Parental Leave Act 2010.
(3) A consent referred to in subparagraph (2)(a)(i) is not effective for the purposes of this regulation unless, before the consent is given:
(a) the trustee of the fund has given to the beneficiary a notice that:
(i) informs the beneficiary that it is proposed that the beneficiary’s right or claim to accrued benefits, or the amount of those benefits, be affected adversely; and
(ii) explains the effect of the alteration on the beneficiary’s rights or claims to accrued benefits and the amount of those benefits; and
(iii) provides any other information that the trustee reasonably believes a beneficiary would expect to be told about the proposed alteration; and
(ab) if the benefits are subject to a payment split, the trustee has given a copy of the notice to the non‑member spouse; and
(b) the beneficiary, and the non‑member spouse (if any), have been allowed adequate time to consider the proposed alteration and its effect on the beneficiary’s rights or claims to accrued benefits and the amount of those benefits.
(4) For the purposes of sub‑subparagraph (2)(a)(ii)(A), the procedures to be followed in obtaining the approval of beneficiaries are as follows:
(a) the trustee of the fund must send to each beneficiary of the fund who would be adversely affected by the alteration a notice that:
(i) informs the beneficiary that it is proposed that the beneficiary’s right or claim to accrued benefits, or the amount of those benefits, be affected adversely; and
(ii) explains the effect of the alteration on the beneficiary’s rights or claims to accrued benefits and the amount of those benefits; and
(iii) explains that the alteration requires:
(A) the approval of at least two‑thirds of all of the beneficiaries of the fund who are affected by it, obtained by ballot in accordance with this subregulation; and
(B) the consent of the Regulator; and
(iv) explains the manner in which the beneficiary can cast his or her vote in relation to the ballot; and
(v) provides any other information that the trustee reasonably believes a beneficiary would expect to be told about the proposed alteration;
(b) the ballot must be conducted in a manner that ensures that each beneficiary is given not less than 21 days to consider the notice and the proposed alteration before voting.
(5) An approval referred to in sub‑subparagraph (2)(a)(ii)(B) is not effective for the purposes of this regulation unless, at least 21 days before the giving of that approval, the trustee of the fund has given to each beneficiary of the fund who would be adversely affected by the alteration a notice that:
(a) informs the beneficiary that it is proposed that the beneficiary’s right or claim to accrued benefits, or the amount of those benefits, be affected adversely; and
(b) explains the effect of the alteration on the beneficiary’s rights or claims to accrued benefits and the amount of those benefits and
(c) provides any other information that the trustee reasonably believes a beneficiary would expect to be told about the proposed alteration.
(6) In deciding whether to consent to an alteration under subparagraph (2)(a)(ii), the Regulator must consider the effect that the alteration would have on the value of benefits that may become payable to a person who is the non‑member spouse in relation to an interest in the fund that is subject to a payment split.
13.17 Approved deposit funds—restrictions on loans and investments
(1) For subsection 32(1) of the Act, it is a standard applicable to the operation of approved deposit funds that, except so far as permitted by subregulation (2), a trustee of a fund must not, in that capacity, invest in:
(a) the trustee itself; or
(b) a related body corporate.
(2) Subregulation (1) does not apply to investments by a fund in a related body corporate:
(a) in the case of a life insurance policy—if the body corporate issuing the policy is a life insurance company; or
(b) in the case of a deposit—if the body corporate is an ADI; or
(c) in any other case—if:
(i) the body corporate is an ADI or a life insurance company; and
(ii) the trustee of the fund complies with the rules set out in regulation 13.17AA.
13.17A Public offer superannuation funds—restrictions on loans and investments
(1) For subsection 31(1) of the Act, it is a standard applicable to the operation of public offer superannuation funds that, except so far as permitted by subregulation (2), a trustee of a fund must not, in that capacity, invest in:
(a) the trustee itself; or
(b) a related body corporate.
(2) Subregulation (1) does not apply to investments by a fund in a related body corporate:
(a) in the case of a life insurance policy—if the body corporate issuing the policy is a life insurance company; or
(b) in the case of a deposit—if the body corporate is an ADI; or
(c) in any other case—if:
(i) the related body corporate is an ADI or a life insurance company; and
(ii) the trustee of the fund complies with the rules set out in regulation 13.17AA.
13.17AA Rules for certain investments by funds in related bodies corporate
(1) In this regulation:
prescribed investment, in relation to a fund, means an investment (other than a deposit or a life insurance policy) in, or a loan to, a related body corporate that is an ADI, or a life insurance company.
(2) If at the end of a year of income (the current year of income) the value of a fund’s prescribed investments exceeds 5% of the total assets of the fund, the trustee of the fund must prepare a written plan in accordance with subregulations (3) and (4) as soon as practicable after the end of the current year of income.
(3) The plan must specify the amount (the excess amount) by which, at the end of the current year of income, the fund’s prescribed investments exceed 5% of the fund’s total assets.
(4) The plan must set out the steps that the trustee proposes to take in the year of income following the current year of income to ensure that:
(a) some of the fund’s prescribed investments are disposed of during the year of income following the current year of income; and