Superannuation Industry (Supervision) Regulations 1994

PART 1 - PRELIMINARY  

REGULATION 1.03   INTERPRETATION  

1.03(1)    

In these regulations, unless the contrary intention appears:

1997 Tax Act
means the Income Tax Assessment Act 1997 .

access amount
, at a particular time (the access time ) for a benefit supported by a superannuation interest (within the meaning of the 1997 Tax Act), means the sum of:

(a) the maximum amount payable if the benefit were commuted on the retirement phase start day for the benefit, as determined by the contract or rules for the provision of the benefit; and

(b) any instalments paid for the benefit after the retirement phase start day for the benefit and before the access time.

account-based annuity
means an annuity provided under a contract that:

(a) is described in paragraph 1.05(11A)(a) ; and

(b) meets the standards of subregulation 1.05(11A) .

account-based pension
means a pension that is provided in accordance with the rules of a fund that:

(a) are described in paragraph 1.06(9A)(a) ; and

(b) meet the standards of subregulation 1.06(9A) .

accumulation fund
means a regulated superannuation fund that is not a defined benefit fund.

accumulation interest
means a superannuation interest that is not a defined benefit interest.

Act
means the Superannuation Industry (Supervision) Act 1993 .

adjusted base amount
, in relation to a non-member spouse at a particular date, means the adjusted base amount applicable to the non-member spouse at that date worked out under Division 6.1A of the Family Law (Superannuation) Regulations 2001 .

advance instalment of surcharge
means the advance instalment payable under section 11 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 .

AFCA
(short for the Australian Financial Complaints Authority) has the same meaning as in the Corporations Act 2001 .

AFCA scheme
(Repealed by FRLI No F2023L01458)

allocated pension
means a pension that is provided under rules of a superannuation fund that meet the standards of subregulation 1.06(4) .

allot
, for Division 6.7 , means to credit an amount from a member ' s account to another account in the regulated superannuation fund held by, or created for, the receiving spouse otherwise than by transfer or roll-over.

base amount payment split
, in relation to a superannuation interest, means a payment split under which a base amount is allocated to the non-member spouse in relation to the interest under Part VIIIB or VIIIC of the Family Law Act 1975 .

benefit certificate
has the meaning given by section 10 of the SG(A) Act.

capital gains tax exempt component
has the same meaning as CGT exempt component in subsection 27A(1) of the Tax Act as in force immediately before 1 July 2007.

child account
(Repealed by SR No 148 of 2004)

child contributions
means contributions that are made to a regulated superannuation fund in respect of a child, other than:

(a) contributions made in respect of the child by, or on behalf of, an employer of the child; and

(b) contributions made by a child in respect of himself or herself.

Co-contribution Act
means the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 .

commencement day
, in relation to a pension or an annuity, means the first day of the period to which the first payment of the pension or annuity relates.

contributions
, in relation to a fund, includes:

(a) payments of shortfall components to the fund; and

(b) payments to the fund from the Superannuation Holding Accounts Special Account;

but does not include benefits that have been rolled over or transferred to the fund.

deferred superannuation income stream
means a benefit supported by a superannuation interest (within the meaning of the 1997 Tax Act) if the contract or rules for the provision of the benefit provides for payments of the benefit:

(a) to start more than 12 months after the superannuation interest is acquired; and

(b) to be made at least annually afterwards.

defined benefit fund
, subject to regulation 1.03AAA , means:

(a) a public sector superannuation scheme that:

(i) is a regulated superannuation fund; and

(ii) has at least 1 defined benefit member; or

(b) a regulated superannuation fund (other than a public sector superannuation scheme):

(i) that has at least 1 defined benefit member; and

(ii) some or all of the contributions to which (out of which, together with earnings on those contributions, the 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.

defined benefit interest
has the meaning given by regulation 1.03AA .

defined benefit member
means a member who is entitled, on retirement or termination of employment, to be paid a benefit defined wholly or in part by reference to:

(a) the member ' s salary on retirement, termination of employment or an earlier date; or

(b) the member ' s salary averaged over a period before retirement; or

(c) both (a) and (b); or

(d) a specified amount.

defined benefit pension
means a pension mentioned in section 10 of the Act, other than:

(a) a pension wholly determined by reference to policies of life assurance purchased or obtained by the trustee of a regulated superannuation fund, solely for the purposes of providing benefits to members of that fund; or

(b) an allocated pension; or

(c) a market linked pension; or

(d) an account-based pension.

defined benefit sub-fund
means a sub-fund of a defined benefit fund that:

(a) has at least one defined benefit member; and

(b) satisfies the conditions mentioned in section 69A of the Act.

eligible rollover fund
has the same meaning as in Part 24 of the Act.

Note: As to what is an eligible rollover fund for Part 24 of the Act, see section 242 of the Act and regulation 10.01.

eligible spouse contribution
means a contribution made by an individual to a superannuation fund:

(a) to provide superannuation benefits for the individual ' s spouse, whether or not the benefits would be payable to the dependants of the individual ' s spouse if the spouse dies before or after becoming entitled to receive the benefits; and

(b) in circumstances in which the individual:

(i) could not have deducted the contribution under section 82AAC of the Tax Act in the 2006 - 07 income year or a previous year; and

(ii) cannot deduct the contribution under Subdivision 290-B of the 1997 Tax Act in the 2007 - 08 income year or a later year.

eligible termination payment
has the same meaning as in Subdivision AA of Division 2 of Part III of the Tax Act.

employer contribution
, in relation to a regulated superannuation fund, means a contribution by, or on behalf of, an employer-sponsor of the fund.

EPSSS
means an exempt public sector superannuation scheme.

excluded member
(Repealed by SLI No 86 of 2013)

FHSA Act
(Repealed by SLI No 91 of 2015)

first half of the life expectancy period
, for a benefit supported by a superannuation interest (within the meaning of the 1997 Tax Act), means the number of days in the period:

(a) starting on the retirement phase start day for the benefit; and

(b) ending when the number of days equal to the life expectancy period for the benefit divided by 2, and rounded down to the nearest whole number, have passed.

flag lifting agreement
means a flag lifting agreement within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

FSR commencement
has the same meaning as in section 1410 of the Corporations Act 2001 .

Note: The FSR commencement is the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001 .

full-time
, in relation to being gainfully employed, means gainfully employed for at least 30 hours each week.

gainfully employed
means employed or self-employed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment.

growth phase
has the meaning given by regulation 1.03AB .

Immigration Department
means the Department administered by the Minister administering the Migration Act 1958 .

industrial authority
means:

(a) a court, or a tribunal or other body or person, constituted under a law of the Commonwealth, a State or a Territory with power of conciliation or arbitration in relation to industrial disputes; or

(b) a special board constituted under the law of a State relating to factories.

life expectancy
has the same meaning as life expectation factor in section 27H of the Tax Act.

life expectancy period
, for a benefit supported by a superannuation interest (within the meaning of the 1997 Tax Act), means the number of days in the complete expectation of life (as worked out using the prescribed Life Tables) on the retirement phase start day for the benefit of:

(a) if the primary beneficiary of the benefit is alive on the retirement phase start day for the benefit - the primary beneficiary; or

(b) otherwise - the person (if any) to whom the benefit was transferred because of the primary beneficiary ' s death, if at the time of that death the person was eligible under paragraph 6.21(2)(b) to be paid a benefit.

lost member
has the meaning given by regulation 1.03A .

lost RSA holder
has the meaning given by regulation 1.06 of the RSA Regulations.

market linked annuity
means an annuity provided under a contract that meets the standards of subregulation 1.05(10) .

market linked income stream
means an annuity provided under a contract that meets the standards of subregulation 1.05(10) , or a pension paid under rules that meet the standards of subregulation 1.06(8) .

market linked pension
means a pension paid under rules that meet the standards of subregulation 1.06(8) .

member
, except in Part 2 , means:

(a) in relation to an approved deposit fund - a depositor in the fund; and

(b) in relation to a regulated superannuation fund - a member of the fund; and

(c) in relation to a PST - a unit-holder in the PST.

Note: The meaning of the term " member " in Part 2 is defined in subregulation 2.01(2) .

member-protection standards
(Repealed by SLI No 86 of 2013)

member spouse
, in relation to a superannuation interest that is subject to a payment split, means the person who is the member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interest.

minimum requisite benefit
, in relation to a member, means the benefit certified by an actuary in a relevant benefit certificate as the minimum benefit in respect of the member.

non-member spouse
, in relation to a superannuation interest that is subject to a payment split, means the person who is the non-member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interest.

old Regulations
means these Regulations as in force immediately before the FSR commencement.

operative time
, for a payment split, means the operative time for the purposes of Part VIIIB or VIIIC (as the case may be) of the Family Law Act 1975 for the payment split.

part-time
, in relation to being gainfully employed, means gainfully employed for at least 10 hours, and less than 30 hours, each week.

payment split
means a payment split within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

payment split notice
means a notice given by a trustee under regulation 7A.03 .

pension age
:

(a) in relation to a person other than a person mentioned in paragraph (b) - has the meaning given by subsections 23(5A) , (5B) , (5C) or (5D) of the Social Security Act 1991 ; and

(b) in relation to a person who is a veteran within the meaning of the Veterans ' Entitlement Act 1986 - has the meaning that it has in section 5QA of that Act.

percentage-only interest
means percentage-only interest within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

percentage payment split
, in relation to a superannuation interest, means a payment split under a superannuation agreement, flag lifting agreement or splitting order that specifies a percentage that is to apply to all splittable payments in respect of the interest.

prescribed Life Tables
means the Life Tables prescribed by section 7 of the Income Tax Assessment (1936 Act) Regulation 2015 , as if references in that section to:

(a) an annuity included a reference to a benefit supported by a superannuation interest (within the meaning of the 1997 Tax Act); and

(b) the year in which the annuity first commences to be payable were a reference to the year that includes the retirement phase start day for the benefit.

protected member
has the meaning given by regulation 1.03B .

PST
means a pooled superannuation trust.

receiving spouse
has the meaning given by regulation 6.46 .

registered company auditor
has the same meaning as in the Corporations Act 2001 .

relevant benefit certificate
, in relation to a regulated superannuation fund, means a benefit certificate that relates to a defined benefit superannuation scheme (within the meaning of the SG(A) Act) of which the fund forms part.

relevant entity
means:

(a) a public offer entity; or

(b) an approved deposit fund.

Note: The expression relevant entity is defined in the same terms as in section 22 of the Act.

reserves
, in relation to a superannuation entity, means reserves maintained under section 115 of the Act.

retirement phase
has the same meaning as in the 1997 Tax Act.

retirement phase start day
, for a benefit supported by a superannuation interest (within the meaning of the 1997 Tax Act), means:

(a) if the benefit is a deferred superannuation income stream - the later of:

(i) the day the primary beneficiary satisfies a condition of release mentioned in item 101, 102, 102A, 103 or 106 of Schedule 1 ; and

(ii) the day the superannuation interest is acquired; or

(b) otherwise - the day that payments of the benefit start to be payable.

reviewable decision
means:

(a) a decision of APRA under paragraph 1.05(2)(c) refusing to approve a sum payable as benefit; or

(b) a decision of the Regulator under paragraph 1.06(2)(c) refusing to approve a sum payable as benefit; or

(c) a decision of the Regulator refusing to approve the use of a factor under subregulation 1.08(2) ; or

(d) a decision of APRA under paragraph 4.08A(2)(e) refusing to approve an arrangement for management and control of a fund; or

(e) a decision of the Regulator under paragraph 4.12(2)(b) , 6.27B(b) , or 7A.16(8)(b) to not determine the form of consent; or

(f) a decision of APRA to refuse to suspend or vary an obligation of a trustee under subregulation 6.37(6) ; or

(g) a decision of the Regulator under subparagraph 7A.03J(2)(a)(ii) refusing to allow a longer period for a rollover or transfer of a non-member spouse ' s interest; or

(h) a decision of the Regulator under paragraph 7A.03K(2)(b) or 7A.13(7)(b) refusing to allow a longer period to pay a lump sum; or

(i) a decision of the Regulator under subparagraph 7A.12(4)(a)(ii) refusing to allow a longer period for rolling over or transferring transferable benefits; or

(j) a decision of the Regulator under paragraph 7A.16(3)(b) refusing to allow a longer period to allocate, rollover or transfer non-member spouse entitlements; or

(k) a decision of the Regulator to give a direction to a trustee to obtain a new or a replacement funding and solvency certificate under subregulation 9.09(1A) ; or

(l) a decision of the Regulator under subregulation 9.24(2) refusing to approve an actuary ' s recommendation for a defined benefit fund; or

(m) a decision of the Regulator under subregulation 9.44(2) refusing to approve an actuary ' s recommendation for an accumulation fund; or

(n) a decision of APRA refusing to approve a proposed element of an actuarial basis for calculation of value A under subregulation 12.05(5) or (6) ; or

(o) a decision of APRA refusing to approve a proposed assumption or element of an actuarial basis for calculation of value B under subregulation 12.06(5) ; or

(p) a decision of APRA under regulation 12.08 to specify a day on or before which an application is to be made; or

(q) a decision of APRA refusing to approve an application to transfer a PJFC under subregulation 12.12(2) or 12.13(2) ; or

(r) a decision of APRA under regulation 12.14 to revoke an approval of an application to transfer a PJFC; or

(s) a decision of the Regulator refusing to consent to an alteration of accrued benefits under subparagraph 13.16(2)(a)(ii) or (d)(ii) ; or

(t) a decision of the Regulator to confirm or vary a reviewable decision under regulation 13.25 .

RSA Act
means the Retirement Savings Accounts Act 1997 .

RSA holder
has the same meaning given to the term holder in section 9 of the RSA Act.

RSA institution
has the meaning given by section 11 of the RSA Act.

RSA Regulations
means the Retirement Savings Accounts Regulations.

SG(A) Act
means the Superannuation Guarantee (Administration) Act 1992 .

shortfall component
has the same meaning as in the SG(A) Act.

splittable payment
means a splittable payment within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

splitting order
means a splitting order within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

successor fund
, in relation to a transfer of benefits of a member from a fund (called the original fund ), means a fund which satisfies the following conditions:

(a) the fund confers on the member equivalent rights to the rights that the member had under the original fund in respect of the benefits;

(b) before the transfer, the trustee of the fund has agreed with the trustee of the original fund that the fund will confer on the member equivalent rights to the rights that the member had under the original fund in respect of the benefits.

superannuation agreement
means a superannuation agreement within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

superannuation contributions surcharge
means the superannuation contributions surcharge imposed by the Superannuation Contributions Tax Imposition Act 1997 .

Superannuation Holding Accounts Special Account
means the Special Account established by section 8 of the Small Superannuation Accounts Act 1995 .

superannuation income stream
has the same meaning as in the 1997 Tax Act.

superannuation lump sum
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.

Tax Act
means the Income Tax Assessment Act 1936 .

traditional life insurance policy
means a life policy within the meaning of section 9 of the Life Insurance Act 1995 if:

(a) the policy includes an investment component; and

(b) the premium is not dissected (whether by reference to the investment component or otherwise); and

(c) the sum insured, together with bonuses (if any), is payable only on:

(i) the death of the life insured; or

(ii) the occurrence of the earlier of the death of the life insured and the attainment by the life insured of the age specified in the policy.

transferable benefits
, in relation to a superannuation interest that is subject to a payment split and in relation to the non-member spouse in relation to that interest, means benefits that are equal to:

(a) if the payment split is a base amount payment split and an adjusted base amount applies to the non-member spouse when the benefits are transferred - the adjusted base amount less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(b) if the payment split is a base amount payment split and an adjusted base amount does not apply to the non-member spouse when the benefits are transferred - the base amount allocated to the non-member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001 , less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(c) if the payment split is a percentage payment split:

(i) for an entitlement, in respect of an accumulation interest in the growth phase that is not a partially vested accumulation interest, to which subparagraph (ii) does not apply - the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001 , multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(ii) for an entitlement in respect of an interest in a self-managed superannuation fund - the amount in relation to the interest at the time when the benefits are transferred, determined by a method that a court might use if the court were acting under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Family Law Act 1975 , multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(iii) for an entitlement in respect of any other interest - the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001 , multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse in respect of the payment split.

unfunded public sector superannuation scheme
means a regulated superannuation fund that is an unfunded defined benefits superannuation scheme (within the meaning of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 ).

withdrawal benefit
, in relation to a member of a superannuation entity, means the total amount of the benefits that would be payable to:

(a) the member; and

(b) the trustee of another superannuation entity or an EPSSS in respect of the member; and

(c) an RSA in respect of the member; and

(d) another person or entity because of a payment split in respect of the member ' s interest in the superannuation entity;

if the member voluntarily ceased to be a member.

1.03(2)    
In these Regulations, other than Part 2 :

fund
means:

(a) an approved deposit fund; or

(b) a regulated superannuation fund.

Note: For the meaning of fund in Part 2 , see subregulation 2.01(3) .

1.03(3)    

(Repealed by SR No 251 of 2003)