Superannuation Industry (Supervision) (Transitional Provisions) Regulations 1993
Statutory Rules 1993 No. 352 as amended
made under the
Superannuation Industry (Supervision) Act 1993
This compilation was prepared on 29 March 2000
taking into account amendments up to SR 2000 No. 35
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
Page
1 Name of Regulations [see Note 1]
2 Commencement
3 Interpretation
3A Notification of delay in lodging an election — obligations of trustee
4 Purposes
5 Transitional superannuation fund conditions
6 Application of applied OSS Laws
Schedule 1 Applied OSS Act
Part 1 Unmodified provisions
Part 2 Modified provisions
Part 3 Additional modifications
Schedule 2 Applied OSS Regulations
Part 1 Unmodified provisions
Part 2 Modified provisions
Part 3 Additional modifications
Notes
1 Name of Regulations [see Note 1]
These Regulations are the Superannuation Industry (Supervision) (Transitional Provisions) Regulations 1993.
2 Commencement
These Regulations are taken to have commenced on 30 November 1993.
3 Interpretation
(1) In these Regulations:
Act means the Superannuation Industry (Supervision) Act 1993.
applied OSS Act has the meaning given by subregulation (2).
applied OSS Laws means the applied OSS Act and the applied OSS Regulations.
applied OSS Regulations has the meaning given by subregulation (3).
late-lodging fund means a fund to which paragraphs 50 (1) (a), (b), (c) and (d) of the Act applies.
pre-lodgment period means:
(a) for a late-lodging fund — the period mentioned in paragraph 50 (1) (e) of the Act; or
(b) for a terminating fund — the pre-termination period of the fund within the meaning of paragraph 50 (2) (g) of the Act.
qualifying fund means a fund that is treated as if it had satisfied the transitional superannuation fund conditions at all times during the fund’s pre-lodgment period.
Section 1 - Superannuation Industry (Supervision) (Transitional Provisions) Regulations 1993 - Superannuation Industry (Supervision) (Transitional Provisions) Regulations 1993 | Zoe
terminating fund means a fund to which paragraphs 50 (2) (a), (b), (c), (d), (e), and (f) of the Act applies.
the transitional superannuation fund conditions means the transitional superannuation fund conditions referred to in section 50 of the Act.
(2) In these Regulations, a reference to the applied OSS Act is a reference to:
(a) in relation to matters occurring on a day before 1 July 1994:
(i) the provisions of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987, as in force on that day, that are specified in Part 1 of Schedule 1; and
(ii) the provisions of that Act, as in force on 30 November 1993, that are specified in column 1 in Part 2 of Schedule 1, as modified in accordance with the respective provisions in column 2 in that Part; and
(iii) the provisions of that Act, as in force on the day mentioned in subparagraph (i), that are specified in, and modified by, Part 3 of Schedule 1; and
(b) in relation to matters occurring on or after 1 July 1994:
(i) the provisions of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987, as in force on 30 June 1994, that are specified in Part 1 of Schedule 1; and
(ii) the provisions of that Act, as in force on 30 November 1993, that are specified in column 1 in Part 2 of Schedule 1, as modified in accordance with the respective provisions in column 2 in that Part; and
(iii) the provisions of that Act, as in force on 30 June 1994, that are specified in, and modified by, Part 3 of Schedule 1.
(3) In these Regulations, a reference to the applied OSS Regulations is a reference to:
(a) in relation to matters occurring on a day before 1 July 1994:
(i) the provisions of the Occupational Superannuation Standards Regulations, as in force on that day, that are specified in Part 1 of Schedule 2; and
(ii) the provisions of those Regulations, as in force on 30 November 1993, that are specified in, and modified by, Part 2 of Schedule 2; and
(iii) the provisions of those Regulations, as in force on the day mentioned in subparagraph (i), that are specified in, and modified by, Part 3 of Schedule 2; and
(b) in relation to matters occurring on or after 1 July 1994:
(i) the provisions of the Occupational Superannuation Standards Regulations, as in force on 30 June 1994, that are specified in Part 1 of Schedule 2; and
(ii) the provisions of those Regulations, as in force on 30 November 1993, that are specified in, and modified by, Part 2 of Schedule 2; and
(iii) the provisions of those Regulations, as in force on 30 June 1994, that are specified in, and modified by, Part 3 of Schedule 2.
3A Notification of delay in lodging an election — obligations of trustee
For the purposes of paragraph 50 (1) (d) of the Act, the requirements relating to notifying members of the fund about:
(a) the delay in lodging an election; and
(b) the reasons for that delay;
are that the notification must be:
(d) written or printed on one side only of A4 size paper that has nothing else written or printed on it; and
(e) given to each member:
(i) by delivering it to the member in person before the day that, under paragraph 50 (1) (b) of the Act, is the lodgment day for the election; or
(ii) by posting it by pre-paid post to the member at his or her last-known postal address in time for it to be delivered in due course of post no later than that day; and
(f) if the notification is given with other material, packaged or presented so that, on receipt, it is likely to be more prominent than the other material.
4 Purposes
The following regulations are made for the purposes of paragraphs 50 (1) (e) and (2) (g) of the Act.
5 Transitional superannuation fund conditions
A fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the fund’s pre-lodgment period if:
(a) the fund satisfied the superannuation fund conditions under the applied OSS Act in relation to the fund’s pre‑lodgment period; or
(b) APRA treats the fund, in accordance with the applied OSS Act, as satisfying the superannuation fund conditions in that period.
6 Application of applied OSS Laws
The applied OSS Laws apply to a qualifying fund during its pre-lodgment period.
Schedule 1 Applied OSS Act
(subregulation 3 (2))
Part 1 Unmodified provisions
1. Subsections 3 (2), (4) and (5)
2. Section 7
3. Subsections 16 (2), (7), (8) and (9)
Part 2 Modified provisions
Column 1
Column 2
Applied Provision
Modification
Subsection 3 (1):
Omit the definition of reviewable decision, substitute:
‘reviewable decision means a decision of APRA:
(a) refusing to give an exemption under section 12A in relation to a fund;
(b) to vary or revoke an exemption under section 12A in relation to a fund;
(c) refusing an application for the variation or revocation of an exemption under section 12A in relation to a fund;
(d) to make a determination under section 12A in relation to a fund;
(e) to vary or revoke a determination under section 12A in relation to a fund;
(f) refusing an application for the variation or revocation of a determination under section 12A in relation to a fund.’
Subsection 3 (1):
Insert the following definitions:
‘pre-lodgment period has the meaning given by subregulation 3 (1) of the Superannuation Industry (Supervision) (Transitional Provisions) Regulations.
SIS (TP) Regulations means the Superannuation Industry (Supervision) (Transitional Provisions) Regulations.
the unmodified Act means the Occupational Superannuation Standards Act 1987 as in force from time to time.
this Act means the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 as modified by the SIS (TP) Regulations (being the applied OSS Act, within the meaning of those Regulations).’
Section 3:
Add at the end:
‘(6) For the purposes of paragraph (b) of the definition of superannuation fund in subsection (1), a fund is taken to provide a benefit for a member of the fund as the result of a particular event even if, at the request of the member, the trustees of the fund delay the provision of the whole or a part of the benefit for up to 90 days after the member becomes entitled to the benefit.
‘(7) Subsection (6) does not, by implication, limit the circumstances in which the trustees of a fund may delay the provision of benefits in circumstances that are consistent with paragraph (b) of that definition.
‘(8) Subsections (6) and (7) apply on and after 1 July 1994.’
Section 4:
Omit the section, substitute:
4 Certain approvals and instruments to apply for the purposes of this Act
‘For the purposes of this Act:
(a) an approval for the purposes of the definition of superannuation fund in subsection 3 (1) of the unmodified Act; or
(b) an instrument under section 12 or 12A of the unmodified Act;
(whether made before or after the date of commencement of the SIS (TP) Regulations) is taken, where applicable, to be made for the purposes of the corresponding provision of this Act.’
Subsection 10 (2):
Omit the subsection, substitute:
‘(2) For the purposes of this Act, APRA may from time to time give written notice to the trustee of a fund requiring the trustee to give to APRA, in relation to the fund’s pre-lodgment period, the information or report specified in the notice.’
Subsections 12 (1), (2) and (3):
Omit the subsections, substitute:
12 Superannuation fund conditions
‘(1) In this section:
applied OSS Regulations has the same meaning as in the SIS (TP) Regulations.
relevant provisions of the applied OSS Regulations, in relation to a fund, means the provisions of the applied OSS Regulations under subsection 7 (1) that prescribe standards applicable to the operation of the fund.
‘(2) For the purposes of this section, a fund satisfies the superannuation fund conditions in relation to the fund’s pre-lodgment period if:
(a) at all times during that period:
(i) the fund was a superannuation fund; and
(ii) the fund complied with all relevant provisions of the applied OSS Regulations; and
(b) the trustee of the fund complied with all requirements made in relation to the fund:
(i) in relation to that period — under subsection 10 (2); or
(ii) during that period — under section 11.
‘(3) If a fund does not satisfy the superannuation fund conditions in relation to the fund’s pre-lodgment period, APRA may treat the fund, in accordance with subsection (3A), as satisfying the conditions in relation to the period.’
Subsection 12 (3A):
Omit ‘year of income’ (wherever occurring), substitute ‘pre-lodgment period of the fund;’;
Subparagraphs 12 (3A) (b) (i) and (ii):
After ‘(3)’, insert ‘of the unmodified Act’
Subsection 12 (4):
Omit the subsection, substitute:
‘(4) Where APRA:
(a) does not, under subsection (3), treat a fund as satisfying the superannuation fund conditions in relation to the fund’s pre-lodgment period; and
(b) is satisfied that, because of special circumstances in relation to the fund during that period, it is reasonable to treat the fund as satisfying those conditions during that period;
APRA must treat the fund as satisfying those conditions in relation to the fund’s pre lodgment period.’
Subsection 16 (1):
Omit ‘(ab)’, and ‘(da), (db), (dc), (dd), (de), (df),’.
Part 3 Additional modifications
The following provisions are modified by omitting ‘the Commissioner’ or ‘The Commissioner’, wherever occurring, and inserting ‘APRA’:
subsection 3 (1), definition of superannuation fund
(e) subregulations 16A (4), (7), (9), (12) and (13); and
(f) regulations 17 and 17A; and
(g) subregulations 18 (2) and (3); and
(h) regulations 18A, 18B and 18E; and
(i) subregulations 18H (3), 18Q (3) and (5) and 18QA (2) and (4); and
(j) regulations 18R and 18Y
Regulations 23Q and 26
Schedules 1, 1A, 2, 4, 5, 6, 7, 8 and 9, to the extent that the Schedules are applicable to other provisions of the applied OSS Regulations
Part 2 Modified provisions
Regulation 3 (Interpretation)
1.1 Subregulation 3 (1):
Omit the subregulation, substitute:
‘(1) In these Regulations, unless the contrary intention appears:
actuary means a Fellow or an Accredited Member of The Institute of Actuaries of Australia.
benefit means a superannuation pension or an annuity, or an amount payable under a superannuation pension or an annuity, and includes an ETP.
business income means the income of a business run by a person either alone or in partnership.
commencement day, in relation to a superannuation pension or an annuity, means the first day of the period to which the first payment of the pension or annuity relates.
Commonwealth industrial authority means any board, court, tribunal, body or person having authority under a Commonwealth Act to exercise any power of conciliation or arbitration in relation to industrial disputes.
CPI means the consumer price index (all capital cities) published by the Australian Statistician.
defined benefit superannuation fund means a superannuation fund whose governing rules provide that:
(a) in all cases — one or more members of the fund are entitled, on retirement, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(i) the amount of the member’s annual salary:
(A) at the date of the member’s retirement; or
(B) at a date before retirement; or
(C) averaged over a period of employment before retirement;
(ii) a specified amount; and
(b) if the fund is not a public sector fund — some or all of the contributions to the fund (out of which, together with earnings on those contributions, benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.
eligible bank means:
(a) a savings bank or trading bank as defined by subsection 5 (1) of the Banking Act 1959; or
(b) a public authority constituted by a law of a State or Territory, being a public authority that carries on banking business.
eligible financial corporation means a registered corporation within the meaning of the Financial Corporations Act 1974, being a corporation that is:
(a) a corporation to which that Act applies by reason of paragraph 8 (1) (a) or (b) of that Act; and
(b) a financial corporation within the meaning of paragraph 51 (xx) of the Constitution.
eligible rollover fund has the meaning given by section 242 of the Superannuation Industry (Supervision) Act 1993.
eligible scheme has the meaning given by section 159TE of the Tax Act.
employer includes a person who engages another person to perform work under a subcontract.
employer representative, in relation to a board or committee of trustees of a superannuation fund, the board of a body corporate acting as the sole trustee of a superannuation fund or a management board, management committee or other management body that exercises actual control over the policies of a superannuation fund, means a member of that board, committee or body nominated by the employer or employers of the members of the fund or by an organisation nominated by that employer or those employers as representing the interests of that employer or those employers.
ETP means an eligible termination payment.
fully funded fund means a defined benefit superannuation fund that is funded in advance in accordance with actuarial advice at a level that is intended to be reasonably adequate to provide for present and prospective liabilities in respect of benefits relating to the fund.
issue, in relation to a prospectus, has the meaning given to it by section 9 of the Corporations Law.
large fund has the meaning given by subregulation 13 (2).
life assurance company means:
(a) a company registered under section 19 of the Life Insurance Act 1945; or
(b) a public authority constituted by a law of a State or Territory, being a public authority that carries on life insurance business within the meaning of subsection 4 (1) of that Act.
life policy has the same meaning as in the Life Insurance Act 1945.
member-financed benefits means:
(a) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is calculated on the basis of contributions to the fund or such contributions and income derived from those contributions — the sum of:
(i) the contributions made by the member to the fund; and
(ii) the net earnings of the fund allotted to the member in accordance with the governing rules in respect of the earnings attributable to those contributions;
less an amount equal to any administrative or other costs that are deducted from those contributions in accordance with the governing rules but:
(iii) are not otherwise deducted from those contributions; and
(iv) are not otherwise deducted from fund income for the purpose of determining the net earnings of the fund; and
(v) are not otherwise charged to the account of the member; and
(b) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is calculated on the basis of the benefits purchased under an endowment or whole of life policy — the amount of the benefits purchased by contributions made by the member to that policy, whether payment of the benefits pursuant to the policy is to be made on death, retirement, disablement or the occurrence of some other event; and
(c) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is defined in terms that include the member’s salary at the date of withdrawal from the fund or at a date prior to such withdrawal or averaged over a period of employment prior to such withdrawal — benefits calculated in accordance with subregulation (5), together with the net earnings of the fund that are allotted to the member, in accordance with the terms of the governing rules, on the basis of such of those last-mentioned benefits as have been preserved in the fund.
member representative, in relation to a board or committee of trustees of a superannuation fund, the board of a body corporate acting as the sole trustee of a superannuation fund or a management board, management committee or other management body that exercises actual control over the policies of a superannuation fund, means a member of that board, committee or body nominated by the members of the fund or by a trade union or other organisation representing the interests of those members.
minimum requisite benefit, in relation to a member of a superannuation fund, means the minimum benefit required to be vested in the member by the superannuation fund conditions.
potential entitlement has the meaning given by subregulation 9 (1C).
prescribed agreement or award means an agreement or award (including a consent award) that is certified or made by a Commonwealth industrial authority or a State industrial authority on or after 1 July 1986.
private sector fund means a superannuation fund other than a public sector fund.
public sector fund means a superannuation fund established:
(a) by a law of the Commonwealth or of a State or Territory; or
(b) under the authority of:
(i) the Commonwealth or the government of a State or Territory; or
(ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory.
recognised member has the meaning given by section 159TE of the Tax Act.
registered auditor means a person registered as an auditor, or deemed to be registered as an auditor, under the Companies Act 1981 or a law of a State or Territory relating to companies.
registered medical practitioner means a person who is registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners.
registered organisation means:
(a) an association registered under a law of a State or Territory as a trade union; and
(b) a society registered under a law of a State or Territory providing for the registration of friendly or benefit societies; and
(c) an association of employees that is registered as an organisation under the Conciliation and Arbitration Act 1904.
regulated superannuation fund has the meaning given by section 19 of the Superannuation Industry (Supervision) Act 1993.
related entity, in relation to a fund, means a corporation that is, under subsection 7 (5) of the Companies Act 1981, deemed to be related to the trustee or to any of the trustees, as the case may be, of the fund for the purposes of that Act.
rules, in relation to a superannuation fund, means a trust instrument, other document or legislation, or any combination of those things, governing the establishment and operation of the fund.
shortfall component means a shortfall component within the meaning of section 64 of the Guarantee Act.
SIS approved deposit fund means an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993.
SIS (TP) Regulations means the Superannuation Industry (Supervision) (Transitional Provisions) Regulations.
State industrial authority means:
(a) any board or court of conciliation or arbitration, or tribunal, body or person, having authority under any State law to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or
(b) any special board constituted under any State law relating to factories.
superannuation fund conditions, in relation to a superannuation fund, means the superannuation fund conditions referred to in section 12 of the Act that are applicable to the fund.
the Act means the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 as modified by the SIS (TP) Regulations (being the applied OSS Act, within the meaning of those Regulations).
the Guarantee Act means the Superannuation Guarantee (Administration) Act 1992.
the unmodified Regulations means the Occupational Superannuation Standards Regulations as in force from time to time.
these Regulations means the Occupational Superannuation Standards Regulations as modified by the SIS (TP) Regulations (being the applied OSS Regulations, within the meaning of those Regulations).’.
Regulation 4 (Approved auditor)
2.1 Regulation 4:
Omit the regulation, substitute:
4 Instruments to apply for the purposes of the modified Regulations
‘For the purposes of these Regulations:
(a) a prospectus registered, or taken to be registered, under regulation 5AAA, of the unmodified Regulations; or
(b) an instrument made under a provision of the unmodified Regulations;
(whether registered or taken to be registered, or made, before or after the date of commencement of the SIS (TP) Regulations) is taken, where applicable, to be:
(c) registered, or taken to be registered, for the purposes of these Regulations; or
(d) made for the purposes of the corresponding provision of these Regulations;
as the case requires.’.
2A. Regulation 9 (Preservation standards)
2A.1 Subregulation 9 (3)
Omit all the words after paragraph (b), substitute:
‘the governing rules of which have been approved by APRA or the Commissioner of Taxation must be preserved.’.
Regulation 11 (Preservation and portability standards)
3.1 Subregulation 11 (1):
Omit the subregulation, substitute:
‘(1) For the purposes of subsection 7 (1) of the Act, the following standards are prescribed in relation to the preservation and portability of benefits arising directly or indirectly from amounts contributed to superannuation funds:
(a) in relation to each member of a superannuation fund, the benefits referred to in regulations 9, 10 and 25A that relate to the member, except to the extent to which those benefits become payable on the retirement of the member before attaining the age of 55 years in the form of a non‑commutable pension or annuity payable for life, shall be preserved until:
(i) those benefits are transferred in accordance with paragraph (c); or
(ii) the member has:
(A) retired from the workforce; and
(B) attained an age of not less than 55 years; or
(iii) those benefits become payable in one of the following circumstances:
(A) the retirement of the member from the workforce before attaining the age of 55 years on the ground of permanent incapacity or permanent invalidity;
(B) the death of the member;
(C) the permanent departure of the member from Australia;
(CA) because of the operation of paragraph 5AC (2) (a), (b) or (c);
(D) such other circumstances (if any) as APRA approves;
(b) a member seeking payment of benefits from a superannuation fund on his or her retirement from the workforce on the ground of permanent incapacity or permanent invalidity shall be required to give to the trustees of the fund a certificate signed by 2 registered medical practitioners certifying that, in the opinion of those medical practitioners, the member is unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience;
(c) where a person who was a member of a superannuation fund withdraws from the fund, or ceases to be a member of the fund, in circumstances other than those specified in subparagraph (a) (ii) or (iii), all benefits to which a person is entitled on such withdrawal, or on so ceasing to be a member, and that are required to be preserved in relation to the person shall be:
(i) retained in the fund; or
(ii) transferred directly to, for preservation in relation to the person in:
(A) another superannuation fund nominated by the person, being a superannuation fund of which the person is, or intends to become, a member and that is required to preserve any benefits so transferred in accordance with the standards set out in this regulation; or
(B) an approved deposit fund nominated by the person, being a fund that is required to preserve any benefits so transferred in accordance with the standards set out in these Regulations; or
(C) a deferred annuity nominated by the person, being a deferred annuity that cannot be surrendered or assigned before the person attains the age of 55 years and that does not pay benefits except in the circumstances specified in subparagraph (a) (ii) or (iii); or
(iii) rolled over to an eligible rollover fund in accordance with Part III.’.
Regulation 17 (Financial reports and disclosure of information standards)
4.1 Subregulation 17 (1):
Omit the subregulation, substitute:
‘(1) For the purposes of subsection 7 (1) of the Act, the following standards are prescribed in relation to the financial and actuarial reports to be prepared in relation to superannuation funds and the reduction of benefits of members of superannuation funds:
(a) in relation to a defined benefit superannuation fund, an actuarial investigation shall be made:
(i) in the case of a private sector fund in operation on 22 December 1987 into which an actuarial investigation has been made within the immediately preceding 2 years — as at a date within the period of 3 years beginning on the day on which the last actuarial investigation was so made; and
(ii) in the case of a private sector fund in operation on 22 December 1987 to which subparagraph (i) does not apply — as at a date not later than:
(A) 3 years after the day on which the fund began to operate; or
(B) 1 January 1989;
whichever is the later; and
(iii) in the case of a public sector fund in operation on 1 July 1990 into which an actuarial investigation has been made within the immediately preceding 2 years — as at a date within the period of 3 years beginning on the day on which the last actuarial investigation was so made; and
(iv) in the case of a public sector fund in operation on 1 July 1990 to which subparagraph (iii) does not apply — as at a date not later than:
(A) 3 years after the day on which the fund began to operate; or
(B) 1 July 1991;
whichever is the later; and
(v) in any other case — as at a date within the period of 3 years beginning on the day on which the fund began to operate;
and thereafter regular actuarial investigations shall be made, each of them being as at a date not later than 3 years after the previous date as at which an actuarial investigation was made;
(b) in relation to a defined benefit superannuation fund, an actuarial report shall be required to be given to the trustee or trustees of the fund, in relation to each investigation referred to in paragraph (a), within the period of 12 months commencing on the day following the day as at which each such investigation is made or within such extended period as APRA allows, being a report containing:
(i) in relation to a private sector fund or a fully funded public sector fund — the matters specified in subregulation (2); or
(ii) in relation to a public sector fund (other than a fully funded public sector fund) — the matters specified in subregulation (3);
(c) an audit of the accounts and records of a superannuation fund shall be required to be carried out, after the end of each year of income of the fund but not later than the day by which the return referred to in subsection 12 (1) of the Act is to be given to APRA, by an approved auditor and an auditor’s report shall be required to be given to the trustee or trustees of the fund in respect of each such audit;
(d) subject to subregulation (4), 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) A report referred to in paragraph (1) (b) in relation to a private sector fund or a fully funded public sector fund shall contain, in addition to any other matter:
(a) a statement of the value of the assets of the superannuation fund at the date of the latest valuation; and
(b) a statement of the actuary’s opinion on whether the value of the assets of the fund at the date of the latest valuation is adequate to meet the liabilities of the fund in respect of vested benefits in the fund; and
(c) a statement recommending, in respect of the 3-year period immediately following the period to which the report relates, the rate at which the actuary considers employer‑contributions should be made or, where the actuary considers employer-contributions should be made at different rates in respect of 2 or more periods within that first-mentioned period, such different rates; and
(d) a statement whether the sum of:
(i) all liabilities of the fund during that 3-year period that can reasonably be anticipated; and
(ii) all benefits of the fund that can reasonably be anticipated to vest at the end of that 3-year period in the persons who are members of the fund on the day as at which the actuarial investigation is made;
can reasonably be met from the sum of:
(iii) the value of the assets of the fund at the date of the latest valuation; and
(iv) the assumed member contributions during that 3‑year period; and
(v) the assumed employer contributions during that 3‑year period calculated at the rate or rates referred to in paragraph (c); and
(vi) the earnings of the fund assumed by the actuary with respect to that 3-year period; and
(e) a statement as to whether or not an event that is a prescribed event for the purposes of paragraph 15D (4) (a) of the Act occurred in the period to which the report applies.
‘(3) A report referred to in paragraph (1) (b) in relation to a public sector fund (other than a fully funded fund) must contain, in addition to any other matter:
(a) a statement of the value of the assets of the fund; and
(b) a statement of any liability for benefit payments not expected to be covered by:
(i) the assets of the fund; or
(ii) any future contributions to, or earnings of, the fund; or
(iii) a guarantee by the government or other body that established the fund; or
(iv) an appropriation in respect of the fund.
‘(4) The standard stated in paragraph (1) (d) does not apply to an alteration if:
(a) subject to subregulation (5), the beneficiary has consented in writing to the alteration; or
(b) APRA has consented in writing to the alteration after either:
(i) 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 (6); or
(ii) subject to subregulation (7), if the fund complies with the basic equal representation rules provided for by section 89 of the Superannuation Industry (Supervision) Act 1993, 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
(c) the alteration is necessary for compliance with the Act, the Tax Act, the Income Tax Act 1986 or these Regulations; or
(d) the alteration is expressly permitted by the Act or these Regulations; or
(e) 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) APRA has approved the alteration.
‘(5) A consent referred to in paragraph (4) (a) 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
(b) the beneficiary has 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.
‘(6) For the purposes of subparagraph (4) (b) (i), 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 APRA; 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.
‘(7) An approval referred to in subparagraph (4) (b) (ii) 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.
‘(8) In this regulation:
beneficiary has the same meaning as in the Superannuation Industry (Supervision) Act 1993.’.
Regulation 18B (Standards relating to contributions)
18B Standards relating to contributions
5.1 Omit the regulation, substitute:
‘(1) For the purposes of subsection 7 (1) of the Act, the standards set out in this regulation are prescribed.
‘(3) A superannuation fund must not accept a contribution towards a superannuation pension or an ETP for a person, unless:
(a) the person:
(i) has not turned 65; or
(ii) if the governing rules of the fund as at 30 June 1990 provide that the person must retire for the purposes of the fund not later than 12 months after the person turns 65 — has not reached the age at which he or she must retire for those purposes; or
(iii) turned 60 on or before 30 June 1990 and has not turned 70; or
(b) the contribution is made:
(iii) in respect of the member for the purposes of the Guarantee Act in an amount that does not exceed the minimum amount required by that Act so that superannuation guarantee charge is not payable by the employer making the contribution; or
(iv) as payment of the shortfall component in relation to the member; or
(v) in accordance with a prescribed agreement or award.’.
Regulation 18E (Trustees of certain funds to disclose information in certain circumstances)
6.1 Subregulation 18E (5):
Omit the subregulation.
Part III (Approved deposit funds)
7.1 Omit the Part, substitute:
‘Part III Rollover of benefits to eligible rollover funds
20 Interpretation
‘(1) In this Part:
lost member has the meaning given in regulation 1.03 of the Superannuation Industry (Supervision) Regulations.
transferor fund means a superannuation fund that is not a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993.
withdrawal benefit has the meaning given in regulation 1.03 of the Superannuation Industry (Supervision) Regulations.
21 Rollover of benefits from superannuation fund
‘(1) The trustee of a transferor fund may apply to the trustee of an eligible rollover fund, on behalf of a beneficiary of the transferor fund (the first person)or the issue to the first person of a superannuation interest in the eligible rollover fund.
‘(2) The application is to be made on the basis that:
(a) the consideration for the issue is to be paid, on behalf of the first person, by the trustee of the transferor fund; and
(b) the amount of the consideration for the issue is equal to the amount of the first person’s withdrawal benefit in the transferor fund; and
(c) the trustee of the transferor fund is not entitled to recover the consideration from the first person (except as a result of the operation of subregulation (4)).
‘(3) Despite any direction to the contrary by the first person, the first person is taken to have authorised the trustee of the transferor fund:
(a) to make the application; and
(b) to pay the consideration.
‘(4) If the superannuation interest is issued in accordance with the application:
(a) the first person ceases to have rights against the transferor fund, including a contingent right to a death or disability benefit; and
(b) if:
(i) immediately before the interest was issued in accordance with the application, a second person had a contingent right against the transferor fund to a death or disability benefit; and
(ii) the contingent right was derived from the first person’s capacity as a beneficiary of the transferor fund;
the second person ceases to have the contingent right against the transferor fund.
‘(5) This regulation has effect despite anything in the governing rules of the transferor fund.
22 Notice to beneficiaries of circumstances in which benefits may be rolled over
‘(1) The trustee of a transferor fund must give to each member of the fund when he or she becomes a member a written notice:
(a) setting out the circumstances in which the member’s benefits may be paid to an eligible rollover fund; and
(b) specifying the name and address of the place of business of the eligible rollover fund to which any such benefits will be paid in those circumstances.
‘(2) The trustee may by written notice to the member to whom the trustee gave a written notice under subregulation (1) change the eligible rollover fund to which it proposes to pay benefits under regulation 21.
‘(3) The failure of a trustee to notify a member under subregulation (1) or (2) does not affect the rights of the trustee under regulation 21.
23 Tax file numbers
‘If the trustee of a transferor fund pays a benefit to an eligible rollover fund under regulation 21 in respect of a person, the trustee must not give the trustee of the eligible rollover fund the tax file number of the person unless the person has given his or her consent to the disclosure of his or her tax file number in those circumstances.
24 Trustee to give information regarding lost member to eligible rollover fund
‘If the trustee of a transferor fund pays a benefit to an eligible rollover fund under regulation 21 in respect of a lost member, the trustee must also give to the trustee of the eligible rollover fund:
(a) a statement that the member is a lost member; and
(b) if the lost member has specifically asked the transferor fund not to disclose information of a specified kind, a statement to the effect that the member has asked the transferor fund not to disclose information of that kind; and
(c) all information in the possession of the trustee of the transferor fund that could reasonably help the trustee of the eligible rollover fund to locate or identify the lost member, other than information of a kind that the lost member has specifically asked the trustee of the transferor fund not to disclose.’.
Regulation 25 (Prescribed fees)
8.1 Omit the regulation, substitute:
25 Circumstances in which amounts may be paid out of an employer-sponsored fund to anemployer-sponsor
Application of this regulation
‘(1) This regulation applies to a superannuation fund that, at any time after 29 November 1993, has had more than 4 members.
Definitions
‘(2) In this regulation:
associate has the meaning given by section 12 of the Superannuation Industry (Supervision) Act 1993.
controlling interest has the meaning given by subregulation 18E (1), except that a reference in that subregulation to a company is taken to be a reference to a body corporate.
employer-sponsor, for a superannuation fund, means an employer who:
(a) contributes to the fund; or
(b) would, apart from a temporary cessation of contributions, contribute to the fund;
for the benefit of:
(c) a member of the fund who is an employee of:
(i) the employer; or
(ii) an associate of the employer; or
(d) the dependants of such a member in the event of the death of the member.
employer-sponsored fund means a superannuation fund that has at least 1 employer-sponsor.
independent director and independent trustee have the meanings given by section 10 of the Superannuation Industry (Supervision) Act 1993.
related, for bodies corporate, has the meaning given by section 20 of the Superannuation Industry (Supervision) Act 1993.
relative has the meaning given by subregulation 18E (1).
‘(2A) In this regulation, a reference to an employer-sponsor, for an employer-sponsored fund, includes:
(a) if an employer-sponsor is a body corporate — another body corporate that is related to the employer-sponsor; or
(b) if an employer-sponsor is an individual — an associate of the employer-sponsor.
Basic prohibition on payments
‘(4) Except as provided by this regulation, the trustee of an employer-sponsored fund must not pay an amount, or permit an amount to be paid, out of the fund to an employer-sponsor.
Exception — management services
‘(5) A reasonable amount may be paid out of any employer‑sponsored fund to an employer-sponsor for services rendered in connection with the management or operation of the fund.
Exception — special procedures followed
‘(6) An amount may be paid out of an employer-sponsored fund to an employer-sponsor if:
(a) apart from this regulation, the governing rules would require or permit the amount to be paid to the employer‑sponsor; and
(b) whichever of the following subparagraphs is applicable has been complied with:
(i) if the fund has a single corporate trustee:
(A) the directors of the trustee have, by resolution, declared their intention to pay the amount out of the fund to the employer‑sponsor; and
(B) when that resolution was passed, the board of the corporate trustee consisted of equal numbers of employer representatives and member representatives;
(ii) if the fund has a group of 2 or more individual trustees:
(A) the trustees have, by resolution, declared their intention to pay the amount out of the fund to the employer-sponsor; and
(B) when that resolution was passed, the group of trustees consisted of equal numbers of employer representatives and member representatives;
(iii) in any other case — the trustee has declared his or her intention to pay the amount out of the fund to the employer-sponsor; and
(c) before the resolution referred to in subparagraph (b) (i) or (ii) was passed or the declaration referred to in subparagraph (b) (iii) was made (as the case may be):
(i) an actuary had given a written certificate to the trustee stating that, if the amount were paid, the fund would remain in a satisfactory financial position; and
(ii) the trustee was satisfied that the payment of the amount and the making of the changes (if any) to the governing rules were reasonable having regard to the interests of the employer-sponsor and of the beneficiaries of the fund; and
(d) the trustee gave notice in accordance with the governing rules to all members of the fund:
(i) stating the intention to pay the amount to the employer‑sponsor; and
(ii) stating that an actuary has given a certificate to the trustee as required by subparagraph (c) (i); and
(iii) setting out particulars of any changes to the governing rules that were proposed to be made if the amount were paid to the employer-sponsor; and
(e) at the end of 3 months after the notice mentioned in paragraph (d) was given to members, the provisions of whichever of the following subparagraphs is applicable were complied with:
(i) if the fund has a single corporate trustee — the directors of the corporate trustee passed a resolution agreeing to pay the amount out of the fund to the employer-sponsor;
(ii) if the fund has a group of 2 or more individual trustees — the trustees passed a resolution agreeing to pay the amount out of the fund to the employer‑sponsor;
(iii) in any other case — the trustee decided to make the payment.
APRA may waive requirements
‘(7) APRA may waive any or all of the requirements specified in subregulations (6) and (10) for a particular fund.
This regulation does not apply to loans to, or investments in, an employer‑sponsor
‘(8) A reference in this regulation to the payment of an amount out of an employer-sponsored fund to an employer-sponsor does not include the payment of an amount by way of the making of a loan to, or an investment in, the employer-sponsor.
Additional independent trustee and additional independent director
‘(9) For the purposes of the application of this regulation to a fund, a group of trustees, or the board of a corporate trustee, is taken to consist of equal numbers of employer representatives and member representatives if:
(a) the group or board includes an additional independent trustee or an additional independent director, as the case may be; and
(b) the additional independent trustee or additional independent director, as the case may be, is appointed at the request of the employer representatives, or the member representatives, who are the members of the group or board; and
(c) provision is made in the governing rules for the appointment of the additional independent trustee or additional independent director, as the case may be; and
(d) the governing rules do not allow the additional independent trustee or additional independent director, as the case may be, to exercise a casting vote in any proceedings of the group or board concerned.
Notice of proposal to alter governing rules to allow payments
‘(10) The trustee of an employer-sponsored fund must give to all members of the fund written notice of any proposal to alter the governing rules of the fund to increase the benefit payable to a member, if payment of that benefit would have the effect of making a payment from the fund to:
(a) an employer-sponsor; or
(b) a member who is a relative of an employer-sponsor who is an individual; or
(c) a member who holds, or will hold when the governing rules are altered to increase the benefit payable to a member, a controlling interest in an employer-sponsor that is, or will be when the governing rules are altered, a body corporate; or
(d) a relative of a member referred to in paragraph (c);
not less than 3 months before the day when the alteration would take effect.’.
Regulation 25A (Late lodgement fees)
9.1 Omit the regulation, substitute:
25A Certain amounts rolled over from regulated superannuation funds and SIS approved deposit
funds to vest and be preserved
‘For subsection 7 (1) of the Act, the following standards are prescribed for vesting and preservation of benefits in superannuation funds:
(a) benefits arising directly or indirectly from amounts paid to a superannuation fund in respect of a member of the fund from a regulated superannuation fund or a SIS approved deposit fund in accordance with regulation 5.01AA of the Superannuation Industry (Supervision) Regulations, being amounts that were minimum benefits of the member within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations in the fund from which they were paid, vest in the member when those benefits accrue;
(b) benefits arising directly or indirectly from amounts paid to a superannuation fund for a member of the fund from a regulated superannuation fund in accordance with regulation 5.01AA of the Superannuation Industry (Supervision) Regulations, being amounts that were:
(i) preserved benefits of the member; or
(ii) restricted non-preserved benefits of the member;
within the meaning of Part 6 of the Superannuation Industry (Supervision) Regulations in the fund from which they were paid, must be preserved;
(c) benefits arising directly or indirectly from amounts paid to a superannuation fund for a member of the fund from a SIS approved deposit fund in accordance with regulation 5.01AA of the Superannuation Industry (Supervision) Regulations, being amounts that were preserved benefits of the member within the meaning of Part 6 of the Superannuation Industry (Supervision) Regulations in the fund from which they were paid, must be preserved.’.
Part 3 Additional modifications
The following provisions are modified by omitting ‘the Commissioner’ or ‘The Commissioner’, wherever occurring, and inserting ‘APRA’:
regulations 5AAA, 5AAB and 5AAD
paragraph 13 (1) (e)
subregulations 16A (4), (7), (9), (12) and (13)
regulation 17A
regulation 18A
subregulation 18H (3)
regulation 18Q, heading
subregulations 18Q (3) and (5)
subregulations 18QA (2) and (4)
item 1 of Schedule 3.
Notes to the Superannuation Industry (Supervision) (Transitional Provisions) Regulations 1993
Note 1
Note: The Superannuation Industry (Supervision) (Transitional Provisions) Regulations 1993 (in force under the Superannuation Industry (Supervision) Act 1993) as shown in this compilation comprise Statutory Rules 1993 No. 352 amended as indicated in the Tables below.