PART 1
-
PRELIMINARY
REGULATION 1.04
PRESCRIBED MATTERS (ACT, S 10)
1.04(1)
The purpose of this regulation is to prescribe matters for the purposes of various definitions in section
10
of the Act.
1.04(2)
Defined benefit member.
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.
History
Reg 1.04(2) amended by FRLI No F2021L01077, reg 4 and Sch 1 item 1, by substituting
"
section 20B, Part 2C or Part 6A
"
for
"
section 20B or Part 2C
"
, effective 6 August 2021. For transitional provision, see s
14.28
.
Reg 1.04(2) substituted by SLI No 155 of 2013, reg 4 and Sch 1 item 90, effective 1 July 2013. Reg 1.04(2) formerly read:
1.04(2)
Approved auditor.
For the purposes of paragraph (b) of the definition of
approved auditor
in subsection
10(1)
of the Act, the following class of persons is specified, namely individuals each of whom is:
(a)
registered, or taken to be registered, as an auditor under Division
2
of Part
9.2
of the
Corporations Act 2001
; or
(b)
the Auditor-General of the Commonwealth, a State or a Territory, or a delegate of the Auditor-General.
Reg 1.04(2) substituted by SLI No 330 of 2012, reg 3 and Sch 1 item 2, effective 31 January 2013. Reg 1.04(2) formerly read:
1.04(2)
Approved auditor.
For the purposes of the definition of
approved auditor
in section
10
of the Act, the following class of persons is specified, namely, individuals each of whom:
(a)
in the case of an auditor of a self managed superannuation fund:
(i)
is, under Division
2
of Part
9.2
of the
Corporations Act 2001
, registered, or taken to be registered, as an auditor; or
(ii)
is associated with a professional organisation specified in Schedule
1AAA
in the manner specified, in respect of that organisation, in that Schedule; or
(iii)
is the Auditor-General of the Commonwealth, a State or Territory, or is a delegate of the Auditor General; and
(b)
in the case of an auditor of a superannuation entity other than a self managed superannuation fund:
(i)
is, under Division
2
of Part
9.2
of the
Corporations Act 2001
, registered, or taken to be registered, as an auditor; or
(ii)
is the Auditor-General of the Commonwealth, a State or Territory, or is a delegate of the Auditor-General.
Reg 1.04(2) amended by SLI No 343 of 2007, reg 3 and Sch 1 items 2 to 5, by substituting
"
Corporations Act 2001
"
for
"
Corporations Law
"
in para (a)(i), substituting
"
Territory, or is a delegate of the Auditor General
"
for
"
Territory
"
in para (a)(iii) and (b)(ii), and substituting para (b)(i), effective 24 September 2007. Para (b)(i) formerly read:
(i)
is, under Division
2
of Part
9.2
of the Corporations Law, registered, or taken to be registered, as an auditor and is either:
(A)
associated with a professional organisation specified in Schedule
1AAA
in the manner specified, in respect of that organisation, in that Schedule; or
(B)
approved by the Regulator under subregulation (2A); or
Reg 1.04(2) amended by SR No 239 of 1999, SR No 193 of 1998, SR No 344 of 1996 and SR No 430 of 1995.
1.04(2A)
(Repealed by SLI No 343 of 2007)
History
Reg 1.04(2A) omitted by SLI No 343 of 2007, reg 3 and Sch 1 item 6, effective 24 September 2007. Reg 1.04(2A) formerly read:
1.04(2A)
The Regulator may, on application in writing by a person who is, under Division
2
of Part
9.2
of the Corporations Law, registered, or taken to be registered, as an auditor, approve that person for the purposes of sub-subparagraph (2)(b)(i)(B) in relation to a fund or funds specified in the application if the Regulator is satisfied that that person will audit the fund, or funds, in accordance with the Australian Auditing Standards issued by the Auditing Standards Board or with similar standards.
Reg 1.04(2A) amended by SR No 239 of 1999 and SR No 193 of 1998; inserted by SR No 344 of 1996.
1.04(2B)
(Repealed by SLI No 343 of 2007)
History
Reg 1.04(2B) omitted by SLI No 343 of 2007, reg 3 and Sch 1 item 6, effective 24 September 2007. Reg 1.04(2B) formerly read:
1.04(2B)
An approval under subregulation (2A) must be in writing and is subject to such conditions as are set out in the approval.
Reg 1.04(2B) inserted by SR No 344 of 1996.
1.04(2C)
(Repealed by SLI No 343 of 2007)
History
Reg 1.04(2C) omitted by SLI No 343 of 2007, reg 3 and Sch 1 item 6, effective 24 September 2007. Reg 1.04(2C) formerly read:
1.04(2C)
The Regulator may, by notice in writing given to the person to whom the approval is given under subregulation (2A), revoke the approval if the person fails to comply with any of those conditions.
Reg 1.04(2C) amended by SR No 239 of 1999 and SR No 193 of 1998; inserted by SR No 344 of 1996.
1.04(3)
A circumstance is that the member:
(a)
is a member of the scheme established under the
Military Superannuation and Benefits Act 1991
(the
military superannuation scheme
); or
(b)
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
(c)
has a preserved benefit in the military superannuation scheme; or
(d)
has an ancillary account in the military superannuation scheme; or
(e)
both:
(i)
is a member of the scheme established under the
Defence Force Retirement and Death Benefits Act 1973
; and
(ii)
has an ancillary account in the military superannuation scheme.
History
Reg 1.04(3) amended by FRLI No F2021L01893, reg 4 and Sch 1 item 185, by substituting
"
Part VIIIB or VIIIC
"
for
"
section 90MD
"
in para (b), effective 28 September 2022.
Reg 1.04(3) inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 90, effective 1 July 2013.
Reg 1.04(3) repealed by SR 432 of 1994.
1.04(3A)
A circumstance is that the member:
(a)
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
(b)
has made an election under section 137 of the
Superannuation Act 1976
; or
(c)
is a
preserved benefit member
within the meaning of the
Public Sector Superannuation Scheme Trust Deed
, as in force from time to time; or
(d)
has either of the following in the scheme established under the
Superannuation (State Public Sector) Act 1990
(Qld):
(i)
a capital guaranteed interest in a voluntary preservation plan;
(ii)
a deferred retirement benefit amount; or
(e)
both:
(i)
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
(ii)
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:
(A)
clause 7 of the 2012 award, or an equivalent clause of a successor award;
(B)
clause 8 of the 2012 award, or an equivalent clause of a successor award;
(C)
clause 10 of the 2012 award, or an equivalent clause of a successor award;
(D)
clause 11 of the 2012 award, or an equivalent clause of a successor award.
History
Reg 1.04(3A) amended by FRLI No F2021L01893, reg 4 and Sch 1 item 185, by substituting
"
Part VIIIB or VIIIC
"
for
"
section 90MD
"
in para (a), effective 28 September 2022.
Reg 1.04(3A) inserted by SLI No 155 of 2013, reg 4 and Sch 1 item 90, effective 1 July 2013.
1.04(4)
Excluded approved deposit fund.
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)
a fund established before 1 July 1994; or
(b)
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
(c)
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.
History
Reg 1.04(4) amended by No 74 of 2007, reg 5 and Sch 3 items 6 and 7, by substituting
"
must be
"
for
"
must be either
"
and substituting para (b) and (c) for para (b), effective 1 July 2007. Para (b) formerly read:
(b)
a fund established on or after 1 July 1994 in which, on the establishment of the fund, the eligible termination payments of the fund
'
s beneficiary that are invested with the fund have an initial value of at least $400,000.
1.04(4A)
Exempt public sector superannuation scheme.
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.
History
Reg 1.04(4A) inserted by SR No 240 of 1995, reg 2.1, effective 11 August 1995.
1.04(4AA)
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.
History
Reg 1.04(4AA) inserted by SLI No 146 of 2011, reg 3 and Sch 1 item 1, effective 9 August 2011.
1.04(4B)
If a scheme listed in Schedule
1AA
is re-named, the reference to that scheme includes the scheme as so re-named.
History
Reg 1.04(4B) inserted by SR No 240 of 1995, reg 2.1, effective 11 August 1995.
1.04(4C)
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.
History
Reg 1.04(4C) amended by SR No 122 of 1996; inserted by SR No 240 of 1995.
1.04(4D)
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.
History
Reg 1.04(4D) amended by SR No 83 of 1998 and inserted by SR No 122 of 1996.
1.04(4E)
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.
History
Reg 1.04(4E) inserted by SR No 83 of 1998.
1.04(5)
Pooled superannuation trust.
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:
(a)
used only for investing the following kinds of assets:
(i)
assets of a regulated superannuation fund;
(ii)
assets of an approved deposit fund;
(iii)
assets of a PST;
(iv)
complying superannuation assets of a life insurance company within the meaning of the 1997 Tax Act;
(v)
segregated exempt assets of a life insurance company within the meaning of the 1997 Tax Act; and
Note 1:
PST
is defined in regulation
1.03
to mean a pooled superannuation trust.
Note 2:
Complying superannuation asset, life insurance company
and
segregated exempt assets
are defined in subsection
995-1(1)
of the 1997 Tax Act.
(b)
a resident unit trust within the meaning of section
102Q
of the Tax Act; and
(c)
a trust in relation to which each of the following circumstances applies:
(i)
the trustee has confirmed in writing an intention to have the trust treated as a PST;
(ii)
the confirmation was given to APRA, in the approved form, and signed and dated by the trustee;
(iii)
the confirmation was given not later than:
(A)
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
(B)
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;
(iv)
the confirmation has not been withdrawn.
History
Reg 1.04(5) amended by FRLI No F2016L00710, reg 4 and Sch 2 items 1
-
3, by substituting
"
complying superannuation assets
"
for
"
virtual PST assets
"
in para (a)(iv),
"
Complying superannuation asset, life insurance company
and
segregated exempt assets
"
for
"
Life insurance company, segregated exempt assets
and
virtual PST asset
,
"
in note 2 of para (a) and
"
102Q
"
for
"
102H
"
in para (b), effective 10 May 2016.
Reg 1.04(5) amended by SR No 352 of 2001, reg 3 and Sch 1 item 1, by substituting para (c)(iii), effective 21 December 2001. Para (c)(iii) formerly read:
(iii)
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 the commencement of this paragraph;
Reg 1.04(5) amended by SR No 280 of 2000, reg 3 and Sch 1 item 2, by substituting paras (a)(iv) and (v) for paras (a)(iv) to (vi), effective 1 July 2000. Paras (a)(iv) to (vi) formerly read:
(iv)
assets of a life assurance company (within the meaning of Division 8 of Part III of the Tax Act) that are assets of a tax-advantaged insurance fund (within the meaning of section 111B of the Tax Act);
(v)
assets of a registered organisation (within the meaning of Division 8A of Part III of the Tax Act) solely for the tax-advantaged business (within the meaning of section 116GC of the Tax Act) of the organisation;
(vi)
assets of an exempt entity within the meaning of, subparagraph (a), (c) or (d) of the definition of exempt entity in section 102M of the Tax Act; and
Reg 1.04(5) amended by SR No 185 of 2000, reg 3 and Sch 1 items 1 and 2, by inserting
"
; and
"
at the end of para (b), and by inserting para (c), effective 12 July 2000. SR No 185 of 2000 contains the following transitional provision:
Transitional
4(1)
This regulation applies to a unit trust that, immediately before the commencement of these Regulations, was a pooled superannuation trust.
4(2)
On the commencement of these Regulations, the unit trust continues to be a pooled superannuation trust.
4(3)
Subregulation (2) ceases to apply to the unit trust immediately after the time of lodgment, in accordance with subsection
36(1)
of the
Superannuation Industry (Supervision) Act 1993
, of the first return in relation to the unit trust after the commencement of these Regulations.
Regulation 1.04(5) amended by SR No 117 of 1997.
1.04(6)
The trustee of a unit trust may confirm an intention under paragraph
(5)(c)
despite anything in the governing rules of the unit trust.
History
Reg 1.04(6) inserted by SR No 185 of 2000, reg 3 and Sch 1 item 3, effective 12 July 2000. For transitional provision, see the history note to reg 1.04(5).
1.04(7)
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.
History
Reg 1.04(7) inserted by SR No 185 of 2000, reg 3 and Sch 1 item 3, effective 12 July 2000. For transitional provision, see the history note to reg 1.04(5).
1.04(8)
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.
History
Reg 1.04(8) inserted by SR No 185 of 2000, reg 3 and Sch 1 item 3, effective 12 July 2000. For transitional provision, see the history note to reg 1.04(5).
Reg 1.04 amended by SR No 280 of 2000, reg 3 and Sch 1 item 3, by repealing the Notes at the end, effective 1 July 2000. The Notes formerly read:
"
[
NOTE: 1. The phrase
'
life assurance company
'
is defined in subsection 110(1) of the Tax Act;
2. The phrase
'
registered organisation
'
is defined in subsection 116E(1) of the Tax Act.]
"
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