OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) 1993 NO. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) 1993 NO. 213 - TABLE OF PROVISIONS 1. Commencement 2. Amendment 3. Regulation 3 (Interpretation) 4. Regulation 3E (Meaning of "annuity"-subsection 3 (1) of the Act) 5. Regulation 3F (Meaning of "pension"-subsection 3 (1) of the Act) 6. Regulation 5AAA (Standards: fund not to invite contributions, etc., unless prospectus registered) 7. Regulation 5AC (Standards: ages for payment of benefits) 8. Regulation 8A (Vesting standard: limitation on increases) 9. Regulation 9 (Preservation standards) 10. Regulation 18B (Standards relating to contributions) 11. Regulation 18Q (Information to be given to an employer-contributor and to the Commissioner) 12. New regulation 18QA 13. Regulation 18U (Certificates of contribution and solvency) 14. Regulation 18V (Limited certificates to be issued in certain circumstances) 15. Regulation 18W (Further certificates: variation of rules or payment to employers) 16. Regulation 18X (Contributions to funds not in accordance with certificates) 17. Regulation 18Y (Financial year 1992-93: special provisions) 18. Regulation 21 (Preservation and portability standards) 19. Schedule 1A (Payment limits) 20. Application of repealed provisions. 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 1 1. Commencement 1.1 Subregulation 3.1 is taken to have commenced on 24 December 1992. 1.2 Subregulations 9.1 and 9.2 are taken to have commenced on 1 July 1992. 1.3 Subregulation 9.3 is taken to have commenced on 1 July 1991. 1.4 Regulation 10 is taken to have commenced on 26 June 1991. 1.5 Regulation 12 commences on the day section 47 of the Taxation Laws Amendment (Superannuation) Act 1993 commences. 1.6 Regulations 13, 14, 15 and 16 are taken to have commenced on 1 July 1992. 1.7 Regulation 19 is taken to have commenced on 24 December 1992. (NOTE: The remainder of these Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.) 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 2 2. Amendment 2.1 The Occupational Superannuation Standards Regulations are amended as set out in these Regulations. 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 3 3. Regulation 3 (Interpretation) 3.1 Subregulation 3 (1) (definition of "benefit"): Omit the definition, substitute: "'benefit' means a superannuation pension or an annuity, or an amount payable under a superannuation pension or an annuity, and includes an ETP;". 3.2 Insert the following definition: "'issue', in relation to a prospectus, has the meaning given to it by section 9 of the Corporations Law;". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 4 4. Regulation 3E (Meaning of "annuity"-subsection 3 (1) of the Act) 4.1 Subregulation 3E (1): Omit the subregulation, substitute: "(1) A benefit provided by a life assurance company or a registered organisation is taken to be an annuity for the purposes of the Act if it is a benefit that: (a) arises under a contract that meets the standards of subregulation (2), (4), (6), (7) or (8); and (b) in the case of a benefit purchased on or after the commencement of this paragraph-is purchased with the whole or part of a rolled-over amount within the meaning of section 27A of the Tax Act.". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 5 5. Regulation 3F (Meaning of "pension"-subsection 3 (1) of the Act) 5.1 Paragraph 3F (6) (c): Omit "30 June", substitute "1 July". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 6 6. Regulation 5AAA (Standards: fund not to invite contributions, etc., unless prospectus registered) 6.1 Omit the regulation, substitute: Standards: superannuation fund not to invite contributions, etc., unless prospectus filed "5AAA. (1) For the purposes of subsection 7 (1) of the Act, the standard in subregulation (2) is prescribed. "(2) Subject to subregulation (3), a person must not invite persons: (a) to become members of a superannuation fund; or (b) to begin making contributions to a superannuation fund in respect of new members; unless a prospectus in relation to that fund has been registered by the Commissioner under this regulation. "(3) Subregulation (2) does not apply to a person, in relation to a superannuation fund, if: (a) by reason of the operation of section 66A or 1017 of the Corporations Law, the person: (i) was not, immediately before 22 December 1992, required under Part 7.12 of the Corporations Law to lodge a prospectus in relation to that fund; or (ii) would not, if that fund had existed immediately before 22 December 1992, have been required under that Part to lodge a prospectus in relation to the fund; or (b) the fund invests only in life policies issued by a life assurance company that is related to the trustee or to any of the trustees, as the case may be, of the fund, within the meaning of section 50 of the Corporations Law. "(4) If the Commissioner is of the opinion, in respect of a prospectus lodged for registration, that: (a) the prospectus complies with the requirements of the applied provisions; and (b) the prospectus does not contain any false or misleading statement; and (c) there is no substantial omission from the prospectus; the Commissioner must register the prospectus. "(5) If the Commissioner is of the opinion that a prospectus that does not comply with all of the requirements of the applied provisions nevertheless complies substantially with those requirements, the Commissioner may treat the prospectus as complying with all of those requirements. "(6) The Commissioner must, within 14 days after a prospectus is lodged for registration, give notice in writing to the person by whom it was lodged: (a) that the prospectus has been registered; or (b) that the prospectus has not been registered, giving the reason why the prospectus has not been registered. "(7) For the purposes of subregulation (2), a prospectus is taken to be registered on the expiry of the period referred to in subregulation (6) if the person who lodged the prospectus is not given notice under paragraph (6) (a) or (b) within that period. "(8) For the purposes of subregulation (2), a prospectus is taken to have been registered if: (a) immediately before the date of commencement of this regulation, it was a prospectus accepted by the Commissioner as having been lodged under these Regulations as in force immediately before that date; or (b) immediately before 22 December 1992, it was a prospectus registered under section 1020A of the Corporations Law. Meaning and interpretation of applied provisions "5AAB. (1) In regulation 5AAA, 'applied provisions' means: (a) the following provisions of the Corporations Law: (i) section 1017; (ii) section 1020; (iii) subsections 1021 (1), (2), (3), (4), (5), (6), (6A), (7), (8), (13), (13a) and (14); (iv) section 1022; (v) section 1022A; (vi) section 1024 (other than subsection (7)); (vii) section 1029; (viii) section 1029A; (ix) section 1030; (x) section 1032; and (b) any regulations made for the purposes of, or modifying or amending, any of those provisions. "(2) Subject to subregulation (3), terms used in the applied provisions that are defined in the Corporations Law have, for the purposes of the application of the applied provisions under regulation 5AAA, the same meanings as they have in the Corporations Law. "(3) In the application of the applied provisions under regulation 5AAA: (a) a reference in the applied provisions to the Commission is taken to be a reference to the Commissioner; and (b) a reference in the applied provisions to securities of a corporation is taken to be a reference to the interest of a member in a superannuation fund; and (c) a reference in the applied provisions to the allotment or sale of securities of a corporation is taken to be a reference to a person becoming a member of the superannuation fund; and (d) a reference in the applied provisions to a buyer is taken to be a reference to a person who becomes a member of the superannuation fund; and (e) a reference in the applied provisions to registration of a registrable prospectus under section 1020A of the Corporations Law is taken to be a reference to registration of a prospectus under regulation 5AAA; and (f) a reference, in subsections 1021 (1), (2), (3), (4), (13), (13A) and (14), subsections 1024 (1) to (4) inclusive and sections 1029, 1029A and 1032, to a prospectus includes, unless the context otherwise requires, a reference to a supplementary prospectus. Standards: fund not to invite contributions, etc., on the basis of outdated prospectus "5AAC. (1) For the purposes of subsection 7 (1) of the Act, the standard in subregulation (2) is prescribed. "(2) A person must not invite persons: (a) to become members of a superannuation fund; or (b) to begin making contributions to a superannuation fund in respect of new members, on the basis of a prospectus (including a prospectus issued before the commencement of this regulation) after the end of 6 months after the issue of the prospectus. Standards: fund not to invite contributions, etc., if notice served in relation to registered prospectus "5AAD. (1) For the purposes of subsection 7 (1) of the Act, the standard in subregulation (2) is prescribed. "(2) A person must not invite persons: (a) to become members of a superannuation fund; or (b) to begin making contributions to a superannuation fund in respect of new members, on the basis of a prospectus (including a prospectus issued before the commencement of this regulation) in respect of which a notice under subregulation (3) has been served on the person and is in force. "(3) If the Commissioner is of the opinion that any of the circumstances set out in subregulation (4) exist in respect of a prospectus registered under regulation 5AAA, the Commissioner may give notice in writing to a person; (a) specifying the circumstances that in the opinion of the Commissioner exist in respect of the prospectus; and (b) stating that subregulation (2) applies to that person in relation to the prospectus. "(4) The circumstances are: (a) the prospectus contravenes, in a substantial respect, the requirements of the applied provisions applicable to the prospectus; (b) the prospectus contains a false or misleading statement; (c) there is a substantial omission from the prospectus. "(5) If, while a notice is in force under this regulation, the Commissioner becomes satisfied that the circumstances that resulted in the notice being given no longer exist, the Commissioner by further notice in writing, may cancel the first-mentioned notice.". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 7 7. Regulation 5AC (Standards: ages for payment of benefits) 7.1 Paragraph 5AC (2) (a): After "age 65", insert: "or, if contributions are accepted in accordance with these regulations in respect of the member after the member has reached age 65, at the time those contributions properly cease to be accepted". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 8 8. Regulation 8A (Vesting standard: limitation on increases) 8.1 Subregulation 8A (1): Omit "fund that:", substitute "fund:". 8.2 Paragraph 8A (1) (a): Before "is not", insert "that". 8.3 Subregulation 8A (2): Omit "of benefits arising", substitute "benefits that arise". 8.4 Subregulations 8A (3) and (4): Omit the subregulations, substitute: "(3) The rate of increase of benefits vested in a member of a fund must not be such that, if the fund were to be terminated immediately after the vesting of those benefits, the assets of the fund would be insufficient to pay the minimum requisite benefit in respect of the other members of the fund.". (Note: "minimum requisite benefit" is defined in subregulation 3 (1)) 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 9 9. Regulation 9 (Preservation standards) 9.1 Paragraph 9 (1) (a): Omit the paragraph, substitute: "(a) in relation to each member of a superannuation fund, the amount of any benefits vested in the member in accordance with the standard set out in regulation 8: (i) subject to regulation 10, must be preserved if they are employer-financed benefits of a kind referred to in subregulation 8 (1A) that: (A) arise directly or indirectly from contributions of a kind referred to in paragraphs 8 (1A) (a) or (b); and (B) accrue on or after 1 July 1994; and (ii) must be preserved if they are employer-financed benefits of a kind referred to in subregulation 8 (1A) that arise directly or indirectly from contributions of a kind referred to in paragraph 8 (1A) (c);". 9.2 Subregulation 9 (1B): Omit "other than benefits to which regulation 8 applies". 9.3 Subregulation 9 (4): Omit the subregulation. 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 10 10. Regulation 18B (Standards relating to contributions) 10.1 Paragraph 18B (3) (a): Add at the end: "(iii) turned 60 on or before 30 June 1990 and has not turned 70; or". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 11 11. Regulation 18Q (Information to be given to an employer-contributor and to the Commissioner) 11.1 Subregulations 18Q (1), (2) and (3): Omit the subregulations, substitute: "(1) The trustees of a superannuation fund must give, on request, a copy of the current governing rules of the fund to an employer who makes superannuation guarantee contributions to the fund. "(2) In subregulation (1), 'current governing rules', in relation to a superannuation fund, means the governing rules of the fund as in force on 1 July 1992 or on the day on which the employer first makes superannuation guarantee contributions to the fund, whichever day is the later, and any subsequent amendments to those rules in force on the day of the request. "(3) The trustees of a superannuation fund in respect of which the Commissioner is satisfied that the fund: (a) satisfies the superannuation fund conditions; or (b) should be treated as if it satisfied the superannuation fund conditions; must give, or cause to be given, a statement to that effect, signed by or on behalf of the trustees, to an employer who: (c) makes, or is about to make, superannuation guarantee contributions to the fund; and (d) has not been given a statement to that effect by the trustees before the commencement of this regulation. "(3A) A statement under subregulation (3) must be given to the employer: (a) if the employer made one or more superannuation guarantee contributions before the commencement of this regulation-before or as soon as practicable after the employer makes the first contribution after the commencement of this regulation; or (b) in any other case-before or as soon as practicable after the employer makes the first contribution.". 11.2 Subregulation (4): Omit "If", substitute "Subject to regulation 18QA, if". 11.3 Add at the end: "(7) In this regulation, "superannuation guarantee contributions", in relation to a superannuation fund, means contributions to the fund that result in a reduction of the superannuation guarantee charge under the Guarantee Act in respect of one or more members of the fund.". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 12 12. New regulation 18QA 12.1 After regulation 18Q, insert: Notification of breach to employer sponsors: subsection 12 (3A) of the Act "18QA. (1) For the purposes of subparagraph 12 (3A) (a) (ia) of the Act, a trustee's response to a breach of a superannuation fund condition is covered by this regulation if the trustee causes the breach to be rectified within 30 days after becoming aware of the breach. "(2) For the purposes of subparagraph 12 (3A) (a) (ia) of the Act, the Commissioner may give to the trustee of a superannuation fund written notice requesting the trustee to take all reasonable steps to notify a breach of a superannuation fund condition to all prescribed employer sponsors in relation to the fund. "(3) For the purposes of subparagraph 12 (3A) (a) (ia) of the Act, a prescribed employer sponsor, in relation to a fund, is an employer sponsor who was an employer sponsor in relation to the fund at any time during which a breach of a superannuation fund condition referred to in that subparagraph existed. "(4) For the purposes of subparagraph 12 (3A) (a) (ib) of the Act, the Commissioner may give to the trustee of a superannuation fund a written waiver from the requirements of that subparagraph. "(5) For the purposes of subparagraph 12 (3A) (a) (ib) of the Act, a prescribed employer sponsor, in relation to a fund, is an employer sponsor who was an employer sponsor in relation to the fund at any time during which a breach of a superannuation fund condition referred to in that subparagraph existed. "(6) For the purposes of subparagraph 12 (3A) (a) (ib) of the Act, the specified period is 60 days after the trustee becomes aware of the breach.". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 13 13. Regulation 18U (Certificates of contribution and solvency) 13.1 Omit the regulation. 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 14 14. Regulation 18V (Limited certificates to be issued in certain circumstances) 14.1 Omit the regulation. 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 15 15. Regulation 18W (Further certificates: variation of rules or payment to employers) 15.1 Omit the regulation. 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 16 16. Regulation 18X (Contributions to funds not in accordance with certificates) 16.1 Omit the regulation. 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 17 17. Regulation 18Y (Financial year 1992-93: special provisions) 17.1 Omit the regulation, substitute: Rate of contributions: financial year 1993-94 "18Y. (1) This regulation applies in relation to the financial year beginning on 1 July 1993 to a fund other than a fund the benefits of which are guaranteed by the Commonwealth or by a State or Territory. "(2) The rate at which contributions are made by an employer to a fund in respect of a member of the fund must be: (a) if one or more actuarial investigations into the fund have been made-a rate not less than the rate recommended in the latest actuarial investigation as the minimum rate at which the contributions should be made; or (b) if no actuarial investigation into the fund has been made-the rate determined by an actuary to be the rate that would have been recommended by the actuary in accordance with paragraph 17 (2) (c) for the purposes of an actuarial report referred to in paragraph 17 (1) (b) if an actuarial investigation into the fund had been made.". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 18 18. Regulation 21 (Preservation and portability standards) 18.1 Subparagraph 21 (1) (b) (iii): After sub-subparagraph (B), insert: "(BA) the attainment by the depositor of the age of 65 years;". 18.2 Paragraph 21 (2) (b): After "(B),", insert "(BA),". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 19 19. Schedule 1A (Payment limits) 19.1 Clause 1: Omit "3F (4) (f)", substitute "3F (4) (e)". 19.2 Clause 2: Omit "3F (4) (f)", substitute "3F (4) (e)". 1993 No. 213 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 20 20. Application of repealed provisions. 20.1 The provisions of regulation 5AAA in force immediately before the commencement of this regulation are taken not to apply and never to have applied to a person, in relation to a superannuation fund, if: (a) by reason of the operation of section 66A or 1017 of the Corporations Law, the person: (i) was not, immediately before 22 December 1992, required under Part 7.12 of the Corporations Law to lodge a prospectus in relation to that fund; or (ii) would not, if that fund had existed immediately before 22 December 1992, have been required under that Part to lodge a prospectus in relation to the fund; or (b) the fund invested only in life policies issued by a life assurance company that was related to the trustee or to any of the trustees, as the case may be, of the fund, within the meaning of section 50 of the Corporations Law. - NOTES 1993 No. 213*1* OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS*2* (AMENDMENT) *1* Notified in the Commonwealth of Australia Gazette on 3 August 1993. *2* Statutory Rules 1987 No. 322 as amended by 1988 No. 255 (as amended by 1989 No. 281); 1989 Nos. 24, 281 and 356; 1990 Nos. 149, 150, 185, 202 and 275; 1991 Nos. 16, 58, 148, 150, 155 and 458; 1992 Nos. 192, 218, 223, 224, 387 and 463; 1993 Nos. 14, 33, 149 and 189.