Superannuation Industry (Supervision) Regulations 1994
View history note
Hide history noteFor 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 the trustee of a fund must ensure that a member ' s minimum benefits in the fund are maintained in the fund until the benefits are:
(a) cashed as benefits of the member, other than for the purpose of the member ' s temporary incapacity; or
(b) rolled over or transferred as benefits of the member; or
(c) transferred, rolled over or allotted under Division 6.7 .
5.08(1A)
Subregulation (1) does not apply if, under a law of the Commonwealth, a State or a Territory mentioned in the table, a court makes a forfeiture order (however called) forfeiting part or all of the member ' s benefits in the fund to the Commonwealth, a State or a Territory.
| Item | Law | Provision(s) |
| Commonwealth | ||
| 1.1 | Proceeds of Crime Act 2002 | Section
47
Section 48 Section 49 Section 92 |
| New South Wales | ||
| 2.1 | Confiscation of Proceeds of Crime Act 1989 | Subsection 18(1) |
| 2.2 | Criminal Assets Recovery Act 1990 | Section 22 |
| Victoria | ||
| 3.1 | Confiscation Act 1997 | Division 1 of Part 3
Section 35 Part 4 Subsection 157(6) |
| Queensland | ||
| 4.1 | Criminal Proceeds Confiscation Act 2002 | Section 58
Section 58A Section 151 Part 5 of Chapter 3 |
| Western Australia | ||
| 5.1 | Criminal Property Confiscation Act 2000 | Section 30, to the extent that it applies to confiscation under section 6 in satisfaction of a person ' s liability under section 20 |
| Section 30, to the extent that it applies to confiscation under section 7 | ||
| South Australia | ||
| 6.1 | Criminal Assets Confiscation Act 2005 | Section 47 |
| Tasmania | ||
| 7.1 | Crime (Confiscation of Profits) Act 1993 | Section 16 |
| Australian Capital Territory | ||
| 8.1 | Confiscation of Criminal Assets Act 2003 | Section 54
Section 58 Section 62 Section 67 |
| Northern Territory | ||
| 9.1 | Criminal Property Forfeiture Act 2002 | Section 75
Section 76 Section 80 Section 96 Section 97 Section 99 |
5.08(2)
Subregulation (1) does not apply in relation to an amount of a member ' s minimum benefits in an accumulation fund if:
(a) the amount is attributable only to employer contributions (other than mandated employer contributions); and
(b) there is a written agreement between the member of the fund and the member ' s employer that:
(i) was entered into before the commencement of this subparagraph; and
(ii) requires the employer to make the employer contributions (other than mandated employer contributions) to the fund for the benefit of the member; and
(iii) specifies that if the member ' s employment with the employer ends at or after the end of a period specified in the agreement, the employee is entitled to all of the amount; and
(iv) specifies that if the member ' s employment with the employer ends before the end of the specified period, the member is entitled only to a proportion of the amount; and
(c) the member ' s employment has ended before the end of the period mentioned in subparagraph (b)(iii).
[ CCH Note: Superannuation Industry (Supervision) modification declaration No 1 of 2015 (made 23 September 2015) modifies the Superannuation Industry (Supervision) Regulations 1994 , in relation to all RSE licensees of registrable superannuation entities that are regulated superannuation funds, as if the following regulations were inserted after reg 5.08(2), effective 23 September 2015:
]
5.08(2A)
Subregulation (1) does not apply in relation to an amount of minimum benefits of a member (the forfeited member ) in an accumulation fund (the forfeiting fund ) that is not a self-managed superannuation fund if all the following conditions are satisfied:
(a) The amount is attributable only to non-mandated employer contributions that were made, for the benefit of the forfeited member, to:
(i) the forfeiting fund; or
(ii) another regulated superannuation fund (other than a self-managed superannuation fund) of which the forfeited member was a member and in which the forfeited member did not have a defined benefit interest.
(b) The forfeited member ' s entitlement to the amount is subject to certain minimum service provisions (the applicable minimum service provisions ) that are contained in one or more of the following:
(i) the governing rules of the forfeiting fund;
(ii) a written agreement between the forfeited member and the forfeited member ' s employer;
(iii) an award relating to the forfeited member ' s conditions of employment;
(iv) a certified agreement relating to the forfeited member ' s conditions of employment.Note: Some of the applicable minimum service provisions may be contained in one of the documents mentioned in subparagraphs (i) to (iv) while others may be contained in another of those documents.
(c) The forfeited member failed to satisfy the minimum service requirement contained in the applicable minimum service provisions.
(d) As a result of that failure, the forfeited member lost their entitlement to the amount.
(e) Either:
(i) the applicable minimum service provisions applied to the forfeited member during the whole of the period (the post-11 May 2004 period ) from 11 May 2004 to the occurrence of the forfeiting event; or
(ii) the applicable minimum service provisions applied to the forfeited member during the latter part of the post-11 May 2004 period and predecessor minimum service provisions applied to the member during the rest of the post-11 May 2004 period.
(f) If subparagraph (e)(i) applies - the trustee of the forfeiting fund is satisfied, on reasonable grounds, that the applicable minimum service provisions are not more unfavourable to the forfeited member than the predecessor minimum service provisions.Note: An example of the applicable minimum service provisions being more unfavourable to the forfeited member than the predecessor minimum service provisions is where the predecessor minimum service provisions specify a minimum service period of 10 years, while the applicable minimum service provisions specify a minimum service period of 12 years.
(g) If any of the applicable minimum service provisions are contained in the governing rules of the forfeiting fund - the trustee of the forfeiting fund believes, on reasonable grounds, that the provisions, or their effect, were disclosed to the forfeited member in accordance with applicable disclosure requirements imposed by or under the Act or the Corporations Act 2001 .
(h) The contributions mentioned in paragraph (a) were required to be made by:
(i) the applicable minimum service provisions; or
(ii) predecessor minimum service provisions.Note 1: Note the use of the term required in paragraph (h). If, under the applicable minimum service provisions or predecessor minimum service provisions, the employer merely has a discretion to make non-mandated employer contributions to the fund for the benefit of the forfeited member, but is not obliged to make the contributions, the exception in subregulation (2A) will not apply to the minimum benefits financed by such discretionary contributions.
Note 2: If a member loses their entitlement to an amount of benefits in the manner described in subregulation (2A), the amount cannot be paid out to the employer unless the payment complies with section 117 of the Act.
Interpretation
5.08(2B)
In this regulation:Act
means the Superannuation Industry (Supervision) Act 1993 .applicable minimum service provisions
has the meaning given in subregulation (2A).award
means an award relating to conditions of employment which is made by an employment tribunal under a law of the Commonwealth, a State or a Territory.certified agreement
means an agreement relating to conditions of employment which is certified, approved or registered by an employment tribunal under a law of the Commonwealth, a State or a Territory.employment tribunal
means a tribunal or body having authority under a law of the Commonwealth, a State or a Territory to make an award or to certify, approve or register an agreement relating to conditions of employment.forfeited member
has the meaning given in subregulation (2A).forfeiting event
, in relation to the forfeited member, means the event (involving ceasing to be an employee or member) which results in the forfeited member failing to satisfy the minimum service requirement in the applicable minimum service provisions, and consequently losing their entitlement to the amount of minimum benefits mentioned in subregulation (2A).forfeiting fund
has the meaning given in subregulation (2A).minimum service provisions
has the meaning given in subregulation (2C).minimum service requirement
has the meaning given in subregulation (2C).non-mandated employer contributions
means employer contributions other than mandated employer contributions.predecessor minimum service provisions
has the meaning given in subregulation (2D).
5.08(2C)
In this regulation, minimum service provisions means provisions that satisfy all the following conditions:
(a) The provisions are contained in one or more of the following:
(i) the governing rules of a regulated superannuation fund (other than a self-managed superannuation fund);
(ii) a written agreement between a member of the fund and the member ' s employer;
(iii) an award relating to the member ' s conditions of employment;
(iv) a certified agreement relating to the member ' s conditions of employment.Note: Some of the minimum service provisions may be contained in one of the documents mentioned in subparagraphs (i) to (iv) while others may be contained in another of those documents.
(b) The provisions require the member ' s employer to make non-mandated employer contributions to the fund for the benefit of the member.
(c) The provisions make the member ' s entitlement to the benefits that are attributable to those non-mandated employer contributions conditional or contingent on the member satisfying a stipulation (a minimum service requirement ) contained in the provisions that the member be, for a specified minimum period (a minimum service period ):
(i) an employee (or a particular class or category of employee) of the employer; or
(ii) an employee (or a particular class or category of employee) of a person (a previous employer ) who previously carried on the business of the employer; or
(iii) an employee (or a particular class or category of employee) of a related body corporate (a related employer ) of the employer or a previous employer; or
(iv) a member (or a particular class or category of member) of the fund; or
(v) a member (or a particular class or category of member) of another regulated superannuation fund (other than a self-managed superannuation fund) to which the employer, a previous employer or a related employer made contributions for the benefit of the member.Note: The minimum service requirement may require the member to belong to only one of the categories mentioned in paragraphs (i) to (v), or to only some of those categories. For example, a given minimum service requirement may require the member to be an employee of either the employer or a related employer for a minimum of 10 years.
Also, a minimum service requirement may permit the member to be in different categories during different parts of the minimum service period (as long as the member is in one or other of those categories at all times during that period).
5.08(2D)
In this regulation, predecessor minimum service provisions , in relation to the applicable minimum service provisions, means:
(a) an earlier version of the applicable minimum service provisions, which applied to the forfeited member when they were a member of the forfeiting fund; or
(b) other minimum service provisions, which applied to the forfeited member when they were a member of another regulated superannuation fund (other than a self-managed superannuation fund) from which they were subsequently transferred to the forfeiting fund.
5.08(3)
In addition to subregulation (1), a trustee of an accumulation fund may allow an amount of a member ' s minimum benefits in the fund to be cashed as benefits of the member if:
(a) the cashing of the benefits is for the purpose of the member ' s temporary incapacity; and
(b) the amount:
(i) is not attributable to the member ' s member-financed benefits; and
(ii) is not attributable to the member ' s mandated employer-financed benefits.
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