Commonwealth Numbered Regulations

1994 No. 57 SUPERANNUATION INDUSTRY (SUPERVISION) REGULATIONS - REG 4.04

4.04; For the purposes of subparagraph 59 (1) (b) (iii) of the Act, the
circumstances in which a discretion under the governing rules of a
superannuation entity other than an excluded fund may be exercised by a person
other than the trustee are:

   (a)  where, after the exercise of the discretion:

        (i)    the fund (if a defined benefit fund) would not become
               technically insolvent within the meaning of subregulation 9.06
               (3); or

        (ii)   the fund (if an accumulation fund) would not become technically
               insolvent within the meaning of subregulation 9.35 (3); and

   (b)  where members' rights to accrued benefits in the fund are not
        adversely affected by the exercise of the discretion; and

   (c)  the discretion qualifies under subregulation (2).

(2) A discretion qualifies if:

   (a)  the contributions of the employer-sponsor to the fund include
        contributions that are not mandated employer contributions (within the
        meaning of Part 5) and the discretion relates solely to either or both
        of the following:

        (i)    those non-mandated employer contributions; or

        (ii)   benefits related to those non-mandated employer contributions;
               or

   (b)  whether or not paragraph (a) applies-the discretion relates solely to
        one or more of the following:

        (i)    the admission of new members to the fund; or

        (ii)   the category of members into which a new member or existing
               member is to be placed; or

        (iii)  allowing a person to become an employer-sponsor of the fund; or

        (iv)   the termination of the fund; or

        (v)    the appointment of a trustee to an entity that does not have a
               trustee.