Superannuation Industry (Supervision) Regulations 1994

A member of a fund is taken to be a lost member at a particular time if:

the member is uncontactable, that is, if and only if:

either:

the fund has never had an address (whether non‑electronic or electronic) for the member; or

the trustee of the fund has made one or more attempts to send written communications to the member at the member’s last known address (or addresses), and the trustee believes, on reasonable grounds, that the member can no longer be contacted at any address known to the fund; and

the member has not contacted the fund (whether by written communication or otherwise) within the last 12 months of the member’s membership of the fund; and

the member has not accessed details about the member’s superannuation interest in the fund from any electronic facility provided by the fund within the last 12 months of the member’s membership of the fund; and

the fund has not received a contribution or rollover in respect of the member within the last 12 months of the member’s membership of the fund; or

the member is an inactive member, that is, if and only if:

he or she has been a member of the fund for longer than 2 years; and

he or she was, at the time he or she joined the fund, a person in respect of whom there was in effect a contribution arrangement of the kind referred to in subsection 16(5) of the Act (which deals with the definition of standard employer‑sponsored member); and

the fund has not received a contribution or rollover in respect of him or her within the last 5 years of his or her membership of the fund; or

the member joined the fund from another fund or an EPSSS as a lost member; or

the member joined the fund from an RSA provider as a lost RSA holder;

within the last 2 years of the member’s membership, the trustee of the fund has verified that the member’s address is correct and has no reason to believe that that address is now incorrect; or

the member is permanently excluded from being a lost member.

To avoid doubt, for the purposes of this regulation, a written communication includes a written communication by non‑electronic means or by electronic means.

For the purposes of subregulation (1), and subject to subregulation (3), a member of a fund is permanently excluded from being a lost member if:

the member is an inactive member who has indicated by a positive act (for example, deferring a benefit in the fund) that he or she wishes to continue to be a member of the fund; or

the member has contacted the fund at any time after the time at which he or she joined the fund and indicated that he or she wishes to continue being a member of the fund; or

the member is a member of a self managed superannuation fund.

The trustee of a fund may decide that:

a member, a class of members, or all members of the fund cannot be permanently excluded from becoming lost members; or

a member who is, a class of members who are, or all members of the fund who are permanently excluded from being lost is or are not to continue being permanently excluded from being lost.

If a lost member is transferred to another fund or an EPSSS (the transferee fund), the trustee of the transferring fund must supply certain information about the member to the trustee of the transferee fund (see regulation 7.9.81 of the Corporations Regulations 2001).

A superannuation interest is a defined benefit interest if it is:

an interest in an unfunded public sector superannuation scheme that has at least 1 defined benefit member; or

an interest that entitles the member who holds the interest, when benefits in respect of the interest become payable, to be paid a benefit defined, wholly or in part, by reference to one or more of the following:

the amount of:

the member’s salary at the date of the termination of the member’s employment, the date of the member’s retirement, or another date; or

the member’s salary averaged over a period; or

salary, or allowance in the nature of salary, payable to another person (for example, a judicial officer, a member of the Commonwealth or a State Parliament, a member of the Legislative Assembly of a Territory);

a specified amount;

specified conversion factors.

However, a superannuation interest is not a defined benefit interest if the only benefits defined by reference to any of the amounts or factors mentioned in subparagraphs (1)(b)(i) to (iii) are benefits payable on death or invalidity.

paragraph (c) of the definition of investment return in subregulation 5.01(1);

subregulation 5.04(3);

regulation 7.05;

Divisions 9.3 to 9.5.

A superannuation interest is taken to be in the growth phase at a particular date if the member satisfies 1 of the following requirements at that date:

the member has not satisfied a relevant condition of release;

the member has satisfied a relevant condition of release but no benefit has been paid in respect of the superannuation interest, and no action has been taken by or for the member under the governing rules of the fund to cash any benefit that the member is entitled to be paid as a result of satisfying the condition of release;

the member has satisfied a relevant condition of release and a benefit (other than a benefit that is paid as a pension) has been paid to or for the benefit of the member or, if the member has died, to his or her legal personal representative, but no action has been taken by or for the member, or his or her legal personal representative, under the governing rules of the fund to receive any other benefit that the member, or his or her estate, is entitled to be paid as a result of satisfying the condition of release.

In this regulation:

The purpose of this regulation is to prescribe matters for the purposes of various definitions in section 10 of the Act.

For paragraph 10(1A)(b) of the Act, subregulations (3) and (3A) set out circumstances in which a member of a superannuation fund is to be taken to be a defined benefit member for section 20B, Part 2C or Part 6A of the Act.

A circumstance is that the member:

is a member of the scheme established under the Military Superannuation and Benefits Act 1991 (the military superannuation scheme); or

holds an interest, as a non‑member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975, in the military superannuation scheme; or

has a preserved benefit in the military superannuation scheme; or

has an ancillary account in the military superannuation scheme; or

both:

is a member of the scheme established under the Defence Force Retirement and Death Benefits Act 1973; and

has an ancillary account in the military superannuation scheme.

A circumstance is that the member:

holds an interest, as a non‑member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975, in a superannuation scheme established under the Superannuation Act 1976 or the Superannuation Act 1990; or

has made an election under section 137 of the Superannuation Act 1976; or

is a preserved benefit member within the meaning of the Public Sector Superannuation Scheme Trust Deed, as in force from time to time; or

has either of the following in the scheme established under the Superannuation (State Public Sector) Act 1990 (Qld):

a capital guaranteed interest in a voluntary preservation plan;

a deferred retirement benefit amount; or

both:

is covered by the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2012 (the 2012 award) or by an award that replaces the 2012 award (a successor award); and

would be entitled, on the occurrence of an event mentioned in any of the following clauses, to a pension or lump sum mentioned in that clause:

clause 7 of the 2012 award, or an equivalent clause of a successor award;

clause 8 of the 2012 award, or an equivalent clause of a successor award;

clause 10 of the 2012 award, or an equivalent clause of a successor award;

clause 11 of the 2012 award, or an equivalent clause of a successor award.

For the purposes of paragraph (b) of the definition of excluded approved deposit fund in section 10 of the Act, the following condition is specified, namely, that the fund must be:

a fund established before 1 July 1994; or

a fund that was established on or after 1 July 1994 using eligible termination payments (within the meaning of the Tax Act as in force when the fund was established) of the fund’s beneficiary that had an initial value of at least $400 000; or

a fund that is established after 1 July 2007 using a superannuation lump sum or an employment termination payment (within the meaning of the 1997 Tax Act) of the fund’s beneficiary that had an initial value of at least $400 000.

For the purposes of the definition of exempt public sector superannuation scheme in section 10 of the Act the schemes listed in Schedule 1AA are specified.

A scheme that is listed, or established by or operated under legislation that is listed, in Schedule 1AA ceases to be an exempt public sector superannuation scheme at the time it is registered as a registrable superannuation entity under Division 2 of Part 2B of the Act.

If a scheme listed in Schedule 1AA is re‑named, the reference to that scheme includes the scheme as so re‑named.

Subregulation (4A) has effect in relation to a scheme specified in Part 1 of Schedule 1AA in respect of the 1994–95 and 1995–96 years of income of that scheme.

Subregulation (4A) applies in relation to a scheme specified in Part 2 of Schedule 1AA during the 1996‑97 year of income of that scheme.

Subregulation (4A) applies in relation to a scheme specified in Part 3 of Schedule 1AA during the 1997‑1998 year of income, and subsequent years of income, of that scheme.

For the purposes of paragraph (b) of the definition of pooled superannuation trust in section 10 of the Act, the definition applies to a unit trust that is:

used only for investing the following kinds of assets:

assets of a regulated superannuation fund;

assets of an approved deposit fund;

assets of a PST;

complying superannuation assets of a life insurance company within the meaning of the 1997 Tax Act;

segregated exempt assets of a life insurance company within the meaning of the 1997 Tax Act; and

PST is defined in regulation 1.03 to mean a pooled superannuation trust.

Complying superannuation asset, life insurance company and segregated exempt assets are defined in subsection 995‑1(1) of the 1997 Tax Act.

a resident unit trust within the meaning of section 102Q of the Tax Act; and

a trust in relation to which each of the following circumstances applies:

the trustee has confirmed in writing an intention to have the trust treated as a PST;

the confirmation was given to APRA, in the approved form, and signed and dated by the trustee;

the confirmation was given not later than:

the time of lodgment, in accordance with subsection 36(1) of the Act, of the first return in relation to the trust after 12 July 2000 (the time of lodgment); or

such later time as allowed, in writing, by APRA, either generally or in a particular case and whether allowed before or after the time of lodgment;

the confirmation has not been withdrawn.

The trustee of a unit trust may confirm an intention under paragraph (5)(c) despite anything in the governing rules of the unit trust.

The trustee of a unit trust mentioned in subregulation (6) must inform APRA in writing as soon as practicable after the unit trust ceases to be a PST because paragraph (5)(a) or (b) ceases to apply to the trust.

The trustee may withdraw the confirmation of an intention under paragraph (5)(c) by giving to APRA a notice of the withdrawal that is signed and dated by the trustee.

For paragraph 10A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:

all of the circumstances of the relationship between the persons, including (where relevant):

the duration of the relationship; and

whether or not a sexual relationship exists; and

the ownership, use and acquisition of property; and

the degree of mutual commitment to a shared life; and

the care and support of children; and

the reputation and public aspects of the relationship; and

the degree of emotional support; and

the extent to which the relationship is one of mere convenience; and

any evidence suggesting that the parties intend the relationship to be permanent;

the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.

For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

they satisfy the requirements of paragraphs 10A(1)(a) to (c) of the Act; and

one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.

For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

they have a close personal relationship; and

they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

the reason they do not satisfy the other requirements is that they are temporarily living apart.

For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

they have a close personal relationship; and

they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

the reason they do not satisfy the other requirements is that either or both of them suffer from a disability.

For paragraph 10A(3)(b) of the Act, 2 persons do not have an interdependency relationship if 1 of them provides domestic support and personal care to the other:

under an employment contract or a contract for services; or

on behalf of another person or organisation such as a government agency, a body corporate or a benevolent or charitable organisation.

This regulation applies if:

a superannuation interest in a fund is subject to a payment split, or a non‑member spouse interest has been created under regulation 7A.03B; and

the non‑member spouse in relation to the interest was not a member of the fund immediately before the operative time for the payment split.

For the purposes of the provisions of the Act set out in Table 1, the non‑member spouse is to be treated as being a member of the fund in which the interest is held from the later of:

the operative time for the payment split; and

the time that the trustee receives the agreement or order under which the payment split is effected.

For subsection 17A(5) of the Act, the non‑member spouse is to be treated as being a member of the fund in which the interest is held from the later of:

the end of 6 months after the operative time for the payment split; and

the end of 6 months after the time that the trustee receives the agreement or order under which the payment split is effected.

For regulation 1.03A, the non‑member spouse is to be treated as being a member of the fund in which the interest is held from the operative time for the payment split.

For subsection 17A(5) of the Act, a non‑member spouse who became a member of a fund as a result of the creation of a non‑member spouse interest under Division 7A.1A is not treated as a member of the fund until the earlier of:

6 months after the operative time for the payment split; and

the time that the non‑member spouse’s interest in the fund is confirmed under regulation 7A.03H or 7A.03I.

For the purposes of paragraph 17A(8)(b) of the Act, a class of persons is a specified class if it comprises persons each of whom is, in relation to a member of a superannuation fund, an exempt person mentioned in subregulation (2).

A person is an exempt person in relation to a member of a superannuation fund if:

the person is an employer‑sponsor of the fund; and

the member is a director of the employer‑sponsor.

For the purposes of paragraph 17A(8)(b) of the Act, a class of persons is a specified class if it comprises persons each of whom is a member of a superannuation fund in relation to which the following circumstances exist:

the person is the employer, but not a relative, of a member of the fund (the employee);

another member is the employer, and a relative, of that employee.

For the purposes of subparagraphs 1.05(2)(f)(iiia), (9)(h)(via) and (10)(d)(iva), this subregulation applies to a commutation of a benefit if:

the commutation occurs during the 5 years beginning on the day this regulation commences; and

the whole of the benefit is commuted.

For the purposes of subparagraph 1.05(2)(f)(iiia), this subregulation applies to a commutation of a benefit if the superannuation fund that purchases the benefit or provides the consideration for the benefit:

is not a defined benefit fund; or

is a self managed superannuation fund; or

was, when the benefit commenced to be paid and at all earlier times, a small APRA fund (within the meaning of the Corporations Act 2001).