Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) Subject to subregulation (2), expressions used in this Part that are defined for the purposes of Part 5 have the same meanings respectively as in that Part.
(2) In this Part and in Schedule 1, unless the contrary intention appears:
"cashing restriction" , in relation to a condition of release, means a cashing restriction specified in column 3 of the item in Schedule 1 that mentions the condition of release.
"changeover day" , in relation to a type B member of a fund, means the changeover day that was fixed for the class of members of the fund in which the member is included.
"commencement day" means:
(a) in relation to a regulated superannuation fund, the later of:
(i) the first day of the 1994-95 year of income of the fund; or
(ii) the day on which the trustee or trustees of the fund make an election under section 19 of the Act; and
(b) in relation to an approved deposit fund:
(i) if the first day of the 1994-95 year of income of the fund is on or after 1 July 1994--the first day of that year of income; or
(ii) if the first day of that year of income is before 1 July 1994--the earlier of:
(A) 1 July 1994; or
(B) the day on which the fund became an approved deposit fund.
"Commonwealth income support payment" means:
(a) an income support supplement, service pension or social security pension as defined in subsection 23(1) of the Social Security Act 1991 ; or
(b) a social security benefit as defined in that subsection, other than:
(i) an austudy payment; or
(ii) a youth allowance paid to a person who is undertaking full - time study; or
(c) a drought relief payment under the Farm Household Support Act 1992 as in force immediately before the commencement of the Farm Household Support Amendment (Restart and Exceptional Circumstances) Act 1997 ; or
(d) an exceptional circumstances relief payment under the Farm Household Support Act 1992 ; or
(f) a payment of income support for the purposes of the Farm Family Support Scheme.
"compassionate ground" , in relation to the release of a member's preserved benefits, or restricted non - preserved benefits, in a superannuation entity, means:
(a) a ground listed in subregulation 6.19A(1); or
(b) the ground referred to in subregulation 6.19B(1).
"condition of release" means a condition of release specified in Column 2 of Schedule 1 and, subject to regulation 6.01B, a member of a fund is taken to have satisfied a condition of release if the event specified in that condition has occurred in relation to the member.
"indexed" , in relation to a benefit, means indexed in accordance with section 159SG of the Tax Act (as in force before 1 July 2007), modified so that subsection (1) reads as follows:
(1) The benefit as indexed for each year of income is:
(a) in relation to the year of income in which occurs the day on which a benefit was required to have been calculated or was received by the fund--the amount of the benefit that was calculated or received; or
(b) in relation to a later year of income--the amount calculated by multiplying the benefit for the immediately preceding year of income by the indexation factor worked out in accordance with subsection (2) for the later year of income.
"lump sum" , in this Part but not in Schedule 1, includes an asset.
"non-commutable allocated annuity" has the meaning given by regulation 6.01AA.
"non-commutable allocated pension" has the meaning given by regulation 6.01AB.
"non-commutable annuity" means an annuity provided under a contract that:
(a) meets the standards of subregulation 1.05(2), (9) or (10); and
(b) ensures that payments of benefits are made only in accordance with the rules set out in regulations 6.16, 6.18, 6.19 and 6.22A, as if:
(i) the annuity were a regulated superannuation fund; and
(ii) the annuitant were a member of the fund; and
(iii) the annuity provider were a trustee of the fund; and
(c) ensures that, if the annuity is commuted under subparagraph 1.05(2)(f)(i), (9)(h)(i) or (10)(d)(i), the resulting superannuation lump sum cannot be cashed unless:
(i) the purpose of the commutation is to cash an unrestricted non - preserved benefit; or
(ii) before commutation, the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non - preserved benefits is 'Nil'.
"non-commutable income stream" means a benefit that:
(a) cannot be commuted; and
(b) is paid at least monthly; and
(c) does not have a residual capital value; and
(d) is such that the total amount paid each month is fixed or varies only:
(i) for the purpose of complying with the Act and these regulations; and
(ii) during any period of 12 months by a rate not exceeding either:
(A) 5% per annum; or
(B) the rate of increase in the last Consumer Price Index (All Capital Cities) for a quarter to be published by the Australian Statistician before the end of that period of 12 months compared with the Consumer Price Index (All Capital Cities) published for the same quarter in the preceding year.
"non-commutable pension" means a pension provided under rules of a superannuation fund that:
(a) meet the standards of subregulation 1.06(2), (7) or (8); and
(b) ensure that, if the pension is commuted under subparagraph 1.06(2)(e)(i), (7)(g)(i) or (8)(d)(i), the resulting superannuation lump sum cannot be cashed unless:
(i) the purpose of the commutation is to cash an unrestricted non - preserved benefit; or
(ii) before commutation, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non - preserved benefits is 'Nil'.
"permanent resident" means a holder of a permanent visa under the Migration Act 1958 that has not ceased to be in effect.
"preservation age" means:
(a) for a person born before 1 July 1960--55 years; or
(b) for a person born during the year 1 July 1960 to 30 June 1961--56 years; or
(c) for a person born during the year 1 July 1961 to 30 June 1962--57 years; or
(d) for a person born during the year 1 July 1962 to 30 June 1963--58 years; or
(e) for a person born during the year 1 July 1963 to 30 June 1964--59 years; or
(f) for a person born after 30 June 1964--60 years.
"restricted non-preserved contributions" means undeducted contributions (within the meaning of subregulation (6)) of a member other than contributions that were preserved in satisfaction of requirements of the Tax Act, the OSS Laws the Superannuation Industry (Supervision) (Transitional Provisions) Regulations, the RSA Regulations or these regulations leading to income tax concessions.
"retirement" has the meaning given by subregulation (7).
"severe financial hardship" has the meaning given by subregulation (5).
"student visa" has the same meaning as in the Migration Act 1958 .
"temporary incapacity" , in relation to a member who has ceased to be gainfully employed (including a member who has ceased temporarily to receive any gain or reward under a continuing arrangement for the member to be gainfully employed), means ill - health (whether physical or mental) that caused the member to cease to be gainfully employed but does not constitute permanent incapacity.
"temporary resident" means a holder of a temporary visa under the Migration Act 1958 .
"terminal medical condition" has the meaning given by regulation 6.01A.
"transitional period" , in relation to a superannuation fund, means the period beginning at the beginning of the fund's 1994-1995 year of income and ending:
(a) in the case of a public sector superannuation scheme--at the end of the day when the scheme became an exempt public sector superannuation scheme; or
(b) in any other case--at the end of the day when the trustee of the fund lodges an election under section 19 of the Act.
"transition to retirement income stream" means:
(a) an annuity provided under a contract that:
(i) is a contract to which paragraph 1.05(11A)(a) applies and that meets the standards of subregulation 1.05(11A); and
(ii) allows total payments (excluding payments by way of commutation, but including payments under a payment split) made in a financial year to amount to no more than 10% of the annuity account balance:
(A) on 1 July in the financial year in which the payment is made; or
(B) if that year is the year in which the annuity commences--on the commencement day;
unless the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non - preserved benefits is 'Nil'; and
(iii) complies with paragraphs (b) and (c) of the definition of non - commutable allocated annuity in subregulation 6.01AA(1), as if it were such an annuity; or
(b) a pension provided from a superannuation fund, the rules of which:
(i) are rules to which paragraph 1.06(9A)(a) applies and that meet the standards of subregulation 1.06(9A); and
(ii) allow total payments (excluding payments by way of commutation but including payments under a payment split) made in a financial year to amount to no more than 10% of the pension account balance:
(A) on 1 July in the financial year in which the payment is made; or
(B) if that year is the year in which the pension commences--on the commencement day;
unless the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non - preserved benefits is 'Nil'; and
(iii) comply with paragraph (b) of the definition of non - commutable allocated pension in subregulation 6.01AB(1), as if it were such a pension.
"type A member" means a member of a regulated superannuation fund included in a class of members for which no changeover day, fixed under these regulations as in force before 30 June 1998, was reached before 30 June 1998 in relation to that fund.
"type B member" means a member of a regulated superannuation fund included in a class of members for which a changeover day, fixed under these regulations as in force before 30 June 1998, was reached before 30 June 1998 in relation to that fund.
(5) For the purposes of Schedule 1, a person is taken to be in severe financial hardship if:
(a) the trustee of a superannuation entity is satisfied:
(i) based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments, that:
(A) the person has received Commonwealth income support payments for a continuous period of 26 weeks; and
(B) the person was in receipt of payments of that kind on the date of the written evidence; and
(ii) that the person is unable to meet reasonable and immediate family living expenses; or
(b) the person has reached the age that is the person's preservation age plus 39 weeks and the trustee of a superannuation entity is satisfied:
(i) based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments--that the person received Commonwealth income support payments for a cumulative period of 39 weeks after the person reached the person's preservation age; and
(ii) that the person was not gainfully employed on a full - time, or part - time, basis on the date of the application for cashing of his or her preserved benefits, or restricted non - preserved benefits, in the entity.
(5A) The written evidence provided for by paragraph (5)(a) is of no effect if it is dated more than 21 days before the date of the person's application to the trustee for cashing of his or her preserved benefits or restricted non - preserved benefits.
(6) Amounts to the credit of a member (except eligible spouse contributions) in a fund are undeducted contributions if:
(a) the amounts are undeducted contributions within the meaning that was given, before 1 July 2007, by subsection 27A(1) of the Tax Act; or
(b) for any other amounts--the amounts comprise member contributions:
(i) made after 30 June 1983 in order to obtain superannuation benefits (within the meaning of the Tax Act); and
(ii) in respect of which no deduction is allowable or has been allowed to the member under the former section 82AAT of the Tax Act.
(7) For the purposes of Schedule 1, the retirement of a person is taken to occur:
(a) in the case of a person who has reached a preservation age that is less than 60--if:
(i) an arrangement under which the member was gainfully employed has come to an end; and
(ii) the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full - time or a part - time basis; or
(b) in the case of a person who has attained the age of 60--an arrangement under which the member was gainfully employed has come to an end, and either of the following circumstances apply:
(i) the person attained that age on or before the ending of the employment; or
(ii) the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full - time or a part - time basis.
(8) A reference in this Part to preserved benefits , restricted non - preserved benefits , restricted non - preserved contributions , unrestricted non - preserved benefits and post - 65 employer - financed benefits includes benefits, or contributions (as the case may be), rolled over, or transferred, from an RSA.