FEDERAL COURT OF AUSTRALIA

Campbell v Superannuation Complaints Tribunal [2017] FCA 1509

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    This case is a sequel to an earlier, partially successful appeal by the present applicant, Mr Bradley Campbell, against a decision of the Superannuation Complaints Tribunal (Tribunal): Campbell v Superannuation Complaints Tribunal (2016) 155 ALD 66; [2016] FCA 808 (earlier judgment). On that occasion, it was ordered that the Tribunal’s decision of 1 February 2016 to treat Mr Campbell’s complaint in respect of a decision of the Commonwealth Superannuation Corporation (CSC) as withdrawn pursuant to s 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act) be set aside and the matter be remitted to the Tribunal for reconsideration of the CSC’s decision in accordance with the answers given to the questions of law and the earlier judgment.

2    Mr Campbell is a former member of the Australian Defence Force (ADF). He was discharged from the ADF on medical grounds on 6 December 2007. One sequel to his discharge and those medical grounds is that he became entitled to invalidity benefits under a Military Superannuation Benefit Scheme (MSBS).

3    As if the premature cessation of his military career on medical grounds were not misfortune enough for Mr Campbell and his wife, their marriage later broke down. On 18 June 2014, Mr Campbell applied to CSC under s 90MZB of the Family Law Act 1975 (Cth) (Family Law Act) for information about his superannuation interest under the MSBS. Information in response to such applications in a format known as “Form 6” is supplied by a superannuation fund trustee (here, the CSC). It was dissatisfaction with the provision of information by the CSC in response to his application which moved Mr Campbell’s complaint to the Tribunal and, in light of dissatisfaction with the Tribunal’s consequential decision, motivated the earlier appeal to this Court under s 46 of the Complaints Act.

4    Upon the remitter ordered as a result of that earlier appeal, the Tribunal determined, on 11 April 2017 and materially, to set aside one of the decisions (termed “the second decision”) which the CSC had made in response to Mr Campbell’s application for information. The Tribunal determined that the CSC should furnish information to Mr Campbell via a fresh Form 6:

… in the same manner save that the response to the Request expressly references that the information is provided pursuant to regulation 63 of the [Family Law (Superannuation) Regulations 2001] FLSR with the following wording in place of any reference to regulation 64: ‘Information as specified in [the applicable subregulation of 63] of the Family Law (Superannuation) Regulations 2001 (as amended)’.

5    As with the earlier appeal, the only active party respondent in the present appeal is the CSC. The Tribunal has, quite properly, again entered a submitting appearance.

6    Detail about the MSBS and Mr Campbell’s interest in that scheme, the constitution of the CSC and its role in the administration of the MSBS and the relevant provisions in the Family Law Act is to be found in the earlier judgment, which should be read in conjunction with this judgment.

7    I also make passing reference in the earlier judgment to the nature of the review jurisdiction exercised by the Tribunal. As in the earlier case, it is not necessary to explore that subject in depth in order to resolve this appeal. That exploration was notably undertaken in Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 at 485, [45] to [50] (Edington) by Kenny and Lander JJ, (with whom in this regard I generally agreed). I note, in passing, that the discussion in Edington in relation to the nature of the Tribunal’s jurisdiction was recently cited with approval by the Full Court in Edwards v Commonwealth Superannuation Corporation [2017] FCAFC 173 at [7].

8    An appeal to this Court from the Tribunal under s 46 of the Complaints Act lies only on a question of law. Though the review role undertaken by the Tribunal is, as explained in Edington and authorities referred to therein, different from that of the Administrative Appeals Tribunal, the original jurisdiction exercised by this Court on appeals from each of these tribunals has the common feature that the existence of a question of law goes to jurisdiction.

9    The questions of law in the notice of appeal underwent considerable revision by amendment after the institution of the appeal, as did the grounds specified in the notice. As it came to be amended, the question of law was expressed at a general level of abstraction. It was, “Was the [Tribunal] in error on review in determining that the Form 6 issue in the same manner save that the response to the request expressly references that the information is provided pursuant to regulation 63 in place of regulation 64 of the [FLSR]”? Particularity as to the error emerged only in the course of the oral submissions made on behalf of Mr Campbell by Mr D Katter of Counsel, who appeared for him with Mr J Ward of Counsel. That, though, was the result of a very discriminating refinement by them of the asserted error of law and an abandonment of other asserted errors in the Tribunal’s determination. In turn, and doubtless reflecting an absence of material prejudice, the CSC, for whom Mr R Douglas QC and Mr R Schulte of Counsel appeared, with all of the consummate fairness of a model litigant, did not press any jurisdictional issue arising from this refinement and adequacy of its identification in the notice of appeal.

10    The result of this commendable conduct by counsel was an efficient use of hearing time and a related ability to move at once in this judgment to what is at the heart of Mr Campbell’s continuing grievance with the information which has now been provided by the CSC in response to his application made such a long time ago.

11    In item 1 in the Form 6 “Family Law Information – MSBS Superannuation Interest in Payment Phase” issued by the CSC, as affected by the determination under appeal, the following appears under the heading, “Information as specified in the Family Law (Superannuation) Provision of Information – Military Superannuation and Benefits Scheme Determination 2004 (as amended)” (MSBS Determination):

12    Mr Campbell’s very particular grievance is with the specification of an annual pension amount at item 1. He contends that neither the CSC nor on review the Tribunal had any lawful authority to furnish this information. His contention is that each was subject to an express prohibition in respect of the provision of this information. He is also dissatisfied with the adequacy of the Tribunal’s reasons as furnished for the post-remitter decision. Reacting to a point made on behalf of the CSC, Mr Campbell’s counsel conceded, correctly in my view, that, even if the Tribunal’s reasons were inadequate, if there were a lawful foundation for the information supplied in the Form 6 as amended by the Tribunal’s direction, an allowance of the appeal and a further remitter to the Tribunal would be futile.

13    That the Tribunal chose not to disturb the information furnished at item 1 or to cast items 2 and 3 and their related answers in the way shown was not a coincidence. It reflected the Tribunal’s understanding not just of the provisions of the Family Law Act and the FLSR as explained in the earlier judgment but also its construction of an amendment made in November 2016 to the MSBS Determination by the relevant Minister (then and now, the Attorney-General).

14    Answering the question of law posed for resolution requires that reg 63 of the FLSR be set out. That is because s 90MZB(3) of the FLA requires a trustee to furnish information “in accordance with the regulations”. The terms of reg 63 are, like those of regs 64 and 64A considered in the earlier judgment, prolix. I have there adopted the same practice as I did in the earlier judgment and set out its terms in an annex.

15    The effect of reg 63(6B) of the FLSR is to permit the Minister, if so disposed, to vary by a determination a requirement otherwise arising under reg 63(2) or, as the case may be, reg 63(3) to provide particular information in answer to an application and instead to provide “other information” as specified in the determination about the interest.

16    On 10 November 2016, acting under, materially, reg 63(6B) of the FLSR, the Minister made amendments to the MSBS Determination by the Family Law (Superannuation) (Provision of Information – Military Superannuation and Benefits Scheme) Amendment Determination 2016 (Cth) (2016 Amendment Determination).

17    It was common ground on the appeal that the 2016 Amendment Determination was lawfully made and that the Tribunal was obliged to apply the MSBS Determination, as amended by the 2016 Amendment Determination, in reviewing the CSC’s decision in accordance with the remitter order made in the earlier judgment. No point was pressed on behalf of Mr Campbell that he had an accrued right to have the Tribunal review the CSC’s decision by reference to the MSBS Determination unaffected by the 2016 Amendment Determination. That makes it unnecessary to delve into the sometimes vexed question of the law to be applied in an administrative review which is pending determination at a time when statutory or subordinate legislative amendments commence, a question which notably emerged in Esber v Commonwealth (1992) 174 CLR 430.

18    There is no doubt that the 2016 Amendment Determination was reactive to the earlier judgment. So much is made explicit in the Explanatory Statement issued by the Minister in conjunction with the making of the 2016 Amendment Determination. It is no part of my function in exercising judicial power in this statutory appeal to question the policy value judgment which resulted in the making of the 2016 Amendment Determination. This falls outside the Court’s remit, which is solely to answer such questions of law as are raised on appeal from the Tribunal. It would be antithetical to the constitutional separation of powers to approach the determination of this appeal otherwise than on this basis. Within their respective fields of constitutional legislative competence or, as the case may be, subordinate legislative competence the Parliament and members of the Executive such as a Minister are perfectly entitled to change the law in response to a judgment.

19    The explicit reference to the earlier judgment and to the intention of the 2016 Amendment Determination is found in the following excerpt from the Explanatory Statement:

This instrument responds to uncertainty that may exist following a judgment of the Federal Court of Australia in Campbell v Superannuation Complaints Tribunal [2016] FCA 808 on 15 July 2016 as to whether the existing Determination applies to MSBS invalidity pension interests (which are a subset of MSBS pension interests). In this case, the Court concluded that invalidity pensions under the MSBS are ‘accumulation interests’ as defined in regulation 3 of the Regulations, rather than ‘defined benefit interests’ as defined in regulation 5. On this understanding, the correct source of power for the Attorney-General to make a determination applying to these interests is subregulation 63(6B).

This instrument amends the existing Determination to provide that it is also made under subregulation 63(6B). This clarifies that the Determination applies to all MSBS superannuation interests for which the Attorney‑General has approved a method and factors in Part 4 of Schedule 1 of the Approval, whether they are characterised as accumulation interests or defined benefit interests. This removes any doubt that the trustee of the MSBS can provide eligible persons with appropriate, scheme-specific information about their MSBS superannuation interests, including military invalidity pension interests, in the context of family law superannuation splitting.

20    The 2016 Amendment Determination was expressed to have retroactive effect (to 26 May 2005) for the following reason, contained in the Explanatory Statement:

The instrument commences retrospectively on the same date as the 2005 amendments because the purpose of the amending instrument is to clarify that the Determination applies to all MSBS superannuation interests for which the Attorney‑General has approved a method and factors in Part 4 of Schedule 1 of the Approval, whether they are characterised as accumulation interests or defined benefit interests. It is desirable that this clarification applies to the provision of information by the trustee of the MSBS from the date of operation of the relevant provisions (26 May 2005), to remove any doubt about the trustee’s past reliance on the Determination in providing eligible persons with appropriate, scheme-specific information about their MSBS superannuation interests, including military invalidity pension interests.

21    As amended by the 2016 Amendment Determination, the MSBS Determination provides (paragraph 6):

6    Provision of information by trustee—payment phase interests

In relation to a superannuation interest mentioned in an item in the following table:

(a)    for the purposes of paragraphs 63(6B)(a) and 64(7B)(a) of the Regulations, the trustee of the MSBS is not required to provide the information about the interest mentioned in column 3 of the item; and

(b)    for the purposes of paragraphs 63(6B)(b) and 64(7B)(b) of the Regulations, the trustee of the MSBS must provide the information about the interest mentioned in column 4 of the item.

22    The reference in item 1 in the column headed, “Information that must be provided” to “payment phase table” is, by the definition (paragraph 3) in the MSBS Determination a reference to the table in clause 3 of Part 4 of Schedule 1 to the “Methods and Factors Approval”. In turn, the “Methods and Factors Approval” is defined to mean the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (2003 Approval).

23    The 2003 Approval is a legislative instrument which comprises no less than six volumes. Part 4 of Schedule 1 is located in Volume 2. Under clause 3 of Part 4, Division 4.3, is a table which sets out a formula in which “P” is defined as, “the annual pension of the person, excluding any part of the pension that takes account of the existence of an eligible child or children”.

24    It is clear enough from this survey of the Family Law Act and various legislative instruments that, in affirming the CSC’s decision, subject to requiring changes in the references to reg 64 to reg 63, the Tribunal has concluded that the specification of Mr Campbell’s annual pension amount, together with the reference in the adjacent column to “P” correctly reflects the effect of the MSBS Determination as amended by the 2016 Amendment Determination.

25    The Tribunal’s conclusion accords with the specification in the column headed “Information that must be provided” in the MSBS Determination.

26    In the adjacent column headed, “Information not required to be provided” there is a reference, materially, to the “information mentioned in paragraphs 63(3)(b) …”. Materially, reg 63(3)(b)(i) refers to, “the amount of annual pension benefit payable to the member at the appropriate date”. Read in conjunction, so Mr Campbell submitted, this meant that the Tribunal was wrong to conclude that the CSC was lawfully entitled to specify the annual rate of his pension in the information provided in response to his request.

27    Read narrowly, it does appear that the Minister is on the one hand forbidding the provision of the amount of annual pension and, on the other, requiring, via the item “P” reference in the adjacent column, that this same information be provided. That construction would afford the material part of the MSBS Determination a nonsensical operation. But a nonsensical operation would nonetheless mean that there was no authorisation for the CSC to provide as information the annual rate of Mr Campbell’s pension.

28    The difficulty about accepting this construction of the MSBS Determination is that it does not read in context the whole of what is specified under the heading, “Information that must be provided”. The reference to item “P” is but one of the items of information specified. I do not accept that the power conferred on the Minister by reg 63(6B) of the FLSR to do either or both of specifying that a trustee is not required to provide the information about the interest mentioned in reg 63(3) and to require, instead, that “other information, as specified in the determination, about the interest” be provided means that it is impossible for there to be any overlap between information specified in reg 63(3) and what the Minister specifies in a determination (here, the MSBS Determination) made for the purposes of reg 63(6B) of the FLSR. The requirement flowing from the item “P” reference in the MSBS Determination to provide the annual pension amount is but one of the items which, by virtue of the MSBS Determination, must be provided by the trustee (here the CSC).

29    More particularly, I do not read the reference in reg 63(6B)(b) to “other information” as prohibiting absolutely any overlap between what is specified in a determination made by the Minister and information specified in reg 63(3). The evident purpose of s 90MZB(3) of the Family Law Act is to facilitate courts exercising jurisdiction in matrimonial causes to make just determinations in respect of the “splitting” of superannuation interests: Part VIII of the Family Law Act [Property, Spousal Maintenance and Maintenance Agreemnts]. The annual amount of a pension is inherently likely to form part of relevant information for many, if not most, superannuation interests. A construction of “other information” which promotes an ability for the Minister both to exclude reg 63(3) from application while at the same time including an item of information found there as part of a suite of information made relevant by the criteria applicable to a particular superannuation interest better serves the evident purpose of s 90MZB(3) as part of a regime in the Family Law Act with respect to the splitting of superannuation interests.

30    What the Minister has specified in the MSBS Determination in the column headed, “Information that must be provided”, considered as a whole rather than piecemeal, goes beyond what is specified in reg 63(3) of the FLSR. In my view, that means that the specification is of “other information”.

31    It follows that the Tribunal’s decision was correct.

32    While the Tribunal’s reasons are, with all due respect, cryptic and the corrective references just to reg 63 are bland, the end result is that what will be provided to Mr Campbell is information within the terms of what the MSBS Determination, as amended by the 2016 Amendment Determination. And the statutory requirement is that he be furnished by the trustee with information in accordance with the regulations, not a detailed explanation as to each and every provision in the various statutory instruments, of which reg 63 is but one, relevant to why particular items of information are being provided. In the first instance, the nature and extent of the accompanying explanation calls for a policy value judgment by a trustee, here the CSC, as to what is needed for a recipient and, perhaps in turn, those acting for the recipient and another party to a matrimonial cause, as well as a court, to comprehend the basis for the furnishing of particular information.

33    A decision to furnish information is one made under an enactment and thus amenable to the making of a request, as of right under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to be provided with a statement of reasons compliant with that section. That such a right exists does not mean that the trustee must accompany each answer to a request for information with such reasons. That may well place an onerous burden on the administration of a superannuation scheme with no correlating benefit. As I have observed, the degree of explanation is a matter for a policy value judgment.

34    It is unnecessary in order to resolve this appeal to pass in any further detail upon the adequacy of Tribunal’s reasons. It is axiomatic that reasons given in public administration are not to be read narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Unsurprisingly but pertinently, the CSC highlighted this in its submissions. Accepting this, there is a risk with specialist tribunals such as this one of assuming that detailed knowledge which has become second nature because of specialisation will be second nature either to practitioners or the laity such as Mr Campbell. That same risk is present with specialist primary administrators. The Tribunal is obliged to give written reasons for its determination: s 40, Complaints Act. That Act does not specify what is required in order to comply with s 40 but this detail is provided by the general provision in s 25D of the Acts Interpretation Act 1901 (Cth) in respect of the content of a statement of reasons.

35    The Tribunal’s reasons do not descend to the degree of detail which I have found necessary in order to explain the result of this appeal. They do, however, make particular reference to the 2016 Amendment Determination and to the accompanying Explanatory Statement. That statement is sufficient to give a general understanding of the reason why it became necessary to furnish details of the amount of the annual pension, even if the chapter and verse of all pertinent subordination legislation is not specified. It is because of this that I have described the Tribunal’s reasons as cryptic.

36    Whether or not more detailed reasons from the Tribunal might have obviated this further appeal by Mr Campbell is moot. For, with respect, there can be no doubt that he genuinely believes that this type of pension arising from defence service ought not to be part of what is considered in matrimonial property proceedings. That subject though is one for the policy value judgment of the Parliament and, to the extent permitted by statute, the Minister, not for this Court. Yet further, the particular “split”, if any, to make is one for the exercise of a matrimonial causes jurisdiction, which is not the jurisdiction I am presently exercising.

37    For these reasons, the appeal must be dismissed.

Associate:    

Dated:    12 December 2017

ANNEXURE

Family Law (Superannuation) Regulations 2001, reg 63

Information about certain accumulation interests (Act s 90MZB)

(1)    This regulation applies in relation to a superannuation interest of a member of an eligible superannuation plan if:

(a)    the interest is an accumulation interest or a component of the interest is an accumulation interest; and

(b)    the interest is not a percentage-only interest or an interest in a self managed superannuation fund; and

(c)    regulation 68A does not apply in relation to the interest.

(2)    For subsection 90MZB(3) of the Act and subject to subregulations (6), (6A) and (6B), the information about the accumulation interest that must be provided to an applicant by the trustee of the plan is as follows:

(aa)    if the interest is an unsplittable interest, a statement to that effect;

(a)    a statement indicating whether the interest is subject to a payment split or payment flag and, if the interest is subject to a payment split (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non-member spouse's entitlement has been satisfied as required by Division 2.2), the information mentioned in subregulation (5);

(b)    the date of commencement of the member's service period, within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997 ;

(c)    the date when the member first became a member of the plan;

(d)    if the interest was in the payment phase at the appropriate date--the payment phase information in relation to the interest mentioned in subregulation (3);

(e)    if the interest was in the growth phase at the appropriate date:

(i)    in the case of an accumulation interest other than a partially vested accumulation interest-the growth phase information in relation to the interest mentioned in subregulation (4); and

(ii)    in the case of a partially vested accumulation interest--the growth phase information in relation to the interest mentioned in subregulation (4A);

(ea)    if the application for information specifically requests the trustee to provide information about the withdrawal benefit in relation to the member--the withdrawal benefit in relation to the member at the date when the information is provided;

Note:    If an application for information specifically requests the information mentioned in paragraph (ea) to be provided, the trustee is required to provide only the information mentioned in that paragraph to the applicant, and is not required to provide any other information to the applicant under this regulation--see paragraph (6)(a).

(f)    details of any fees that may be charged by the trustee under paragraph 59(1)(a), (b), (c), (d) or (f).

(3)    For paragraph (2)(d), the payment phase information in relation to the superannuation interest is:

(a)    if the member is receiving ongoing pension payments in respect of an allocated pension--the withdrawal benefit in relation to the member at the appropriate date; and

(aa)    if the member is receiving ongoing pension payments in respect of a market linked pension--the market linked pension account balance at the appropriate date; and

(b)    if the member is receiving ongoing pension payments in respect of a pension other than an allocated pension or a market linked pension:

(i)    the amount of annual pension benefit payable to the member at the appropriate date; and

(ii)     a statement indicating whether the pension benefit is a lifetime pension or a fixed-term pension; and

(iii)     if the pension is a fixed-term pension:

(A) the date when the pension payments commenced; and

(B) the length of the term; and

(iv)    a statement indicating whether the pension benefit is indexed and, if so, the method of indexation; and

(v)    a statement indicating whether there is any reversionary beneficiary who is a non-member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member; and

Note for paragraphs (a) and (b): The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (b)(i) unless a record of it is in the trustee's possession, power or control--see paragraph (6)(b).

(c)    if a lump sum is payable to the member in respect of the interest at the date when the information is provided or at any later date, and the amount of the lump sum is known--the amount of the lump sum; and

(d)    if a lump sum (a future lump sum) is payable to the member in respect of the interest at a date after the date when the information is provided, and the amount of the lump sum is not known:

(i)    the amount of the lump sum that would have been paid at the date when the information is provided if a lump sum were payable at that date (the nominal lump sum); and

(ii)    the method that is to be used to index the nominal lump sum to determine the amount of the future lump sum; and

(e)    if a lump sum payment that would have been a superannuation lump sum, within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided:

(i)    the amount of the payment; and

(ii)    the value that the components of the superannuation lump sum would have had under Subdivision 307-C of that Act would have had; and

(f)    a statement:

(i)    indicating whether the Minister has approved, under regulation 43A, a method or factors for determining the gross value of the interest; and

(ii)    giving details of any method or factors so approved; and

(g)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so--the gross value of the interest at the appropriate date, determined in accordance with:

(i)    whichever of the methods in regulation 41, 42 or 43 applies to the interest; or

(ii)    a method or factors approved by the Minister under regulation 43A.

(4)    For subparagraph (2)(e)(i), the growth phase information in relation to the superannuation interest (being an accumulation interest other than a partially vested accumulation interest) is as follows:

(aa)    the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest at the appropriate date if the member spouse had voluntarily ceased to be a member of the plan at that date;

Note:    The trustee is not required to provide this information unless a record of it is in the trustee's possession, power or control--see paragraph (6)(c).

(a)    if 2 or more member information statements in relation to the interest have been provided to the member, and the appropriate date is between the valuation date stated in one statement (the earlier statement) and the valuation date stated in the next statement (the next statement):

(i)    the value of the interest, as stated in the earlier statement; and

(ii)    the value of the interest, as stated in the next statement; and

(iii)    the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the earlier statement and ending at the end of the valuation date stated in the next statement;

(b)    if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is before the valuation date stated in the first member information statement provided to the member (the first statement):

(i)    the value of the interest, as stated in the first statement; and

(ii)    the value of the interest at the date when the interest was acquired; and

(iii)    the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the date when the interest was acquired and ending at the end of the valuation date stated in the first statement;

(c)    if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is after the valuation date stated in the most recent statement:

(i)    the value of the interest, as stated in the most recent statement; and

(ii)    the value of the interest at the date when the information is provided; and

(iii)    the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the most recent statement and ending at the end of the day when the information is provided;

(ca)    if no member information statement in relation to the interest has been provided to the member:

(i)    the value of the interest at the date when the interest was acquired; and

(ii)    the value of the interest at the date when the information is provided; and

(iii)    the amount, and the date, of any rollover or transfer by the member, or any partial payment to the member, in the period beginning on the day after the date when the interest was acquired and ending at the end of the day when the information is provided;

Note for paragraphs (a), (b), (c) and (ca): The trustee is required to provide the information mentioned in these paragraphs in certain circumstances only--see paragraph (6)(d).

(d)    if the interest is in a regulated superannuation fund or an RSA:

(i)    the amount of restricted non-preserved benefits that had accrued to the member, and would be payable to the member, if he or she were to resign from his or her employment on the date when the information is provided; and

(ii)    the amount (if any) of the member's unrestricted non-preserved benefits;

(e)    if the interest is in an approved deposit fund--the amount, at the date when the information is provided, of the member's unrestricted non-preserved benefits;

(f)    if:

(i)    a payment that would have been a superannuation lump sum, within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided; and

(ii)    the amount of the payment had been the amount payable to the member if he or she had voluntarily ceased to be a member of the plan-- the value that the components of the superannuation lump sum would have had under Subdivision 307-C of that Act would have had;

(g)    if the trustee has given information under Division 2.5 of the SIS Regulations to each member of the plan that the plan is to be reconstructed or terminated--a statement to this effect.

(4A)    For subparagraph (2)(e)(ii), the growth phase information in relation to the superannuation interest (being a partially vested accumulation interest) is as follows:

(a)    the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest at the appropriate date if the member spouse had voluntarily ceased to be a member of the plan at that date;

(aaa)    a statement:

(i)    indicating whether the Minister has approved, under regulation 38, a method or factors for determining the gross value of the interest; and

(ii)    giving details of any method or factors so approved; and

(aa)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so--the gross value of the interest at the appropriate date, determined in accordance with Schedule 3 or in accordance with a method or factors approved by the Minister under regulation 38.

Note:    The trustee is not required to provide this information unless a record of it is in the trustee's possession, power or control--see paragraph (6)(c).

(b)    if 2 or more member information statements in relation to the interest have been provided to the member, and the appropriate date is between the valuation date stated in one statement (the earlier statement) and the valuation date stated in the next statement (the next statement):

(i)    the value of the actual vested benefit in respect of the interest, as stated in the earlier statement; and

(ii)    if stated in the earlier statement, the total member credit at the valuation date stated in that statement; and

(iii)    the value of the actual vested benefit in respect of the interest, as stated in the next statement; and

(iv)    if stated in the next statement, the total member credit at the valuation date stated in that statement; and

(v)    the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the earlier statement and ending at the end of the valuation date stated in the next statement;

(c)    if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is before the valuation date stated in the first member information statement provided to the member (the first statement):

(i)    the value of the actual vested benefit in respect of the interest, as stated in the first statement; and

(ii)    if stated in the first statement, the total member credit at the valuation date stated in that statement; and

(iii)    the value of the actual vested benefit in respect of the interest at the date when the interest was acquired; and

(iv)    the total member credit at the date when the interest was acquired; and

(v)    the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the date when the interest was acquired and ending at the end of the valuation date stated in the first statement;

(d)    if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is after the valuation date stated in the most recent statement:

(i)    the value of the actual vested benefit in respect of the interest, as stated in the most recent statement; and

(ii)    if stated in the most recent statement, the total member credit at the valuation date stated in that statement; and

(iii)    the value of the actual vested benefit in respect of the interest at the date when the information is provided; and

(iv)    the total member credit at the date when the information is provided; and

(v)    the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the most recent statement and ending at the end of the day when the information is provided;

(e)    if no member information statement in relation to the interest has been provided to the member:

(i)    the value of the actual vested benefit in respect of the interest at the date when the interest was acquired; and

(ii)    the total member credit at the date when the interest was acquired; and

(iii)    the value of the actual vested benefit in respect of the interest at the date when the information is provided; and

(iv)    the total member credit at the date when the information is provided; and

(v)    the amount, and the date, of any rollover or transfer by the member, or any partial payment to the member, in the period beginning on the day after the date when the interest was acquired and ending at the end of the day when the information is provided;

Note for paragraphs (b), (c), (d) and (e): The trustee is required to provide the information mentioned in these paragraphs in certain circumstances only--see paragraph (6)(d).

(f)    the vesting term that applies to the interest;

(g)    the date when the vesting term commenced;

(h)    a statement indicating whether the Minister has approved, under regulation 38, a method or factors for determining the gross value of the interest and giving details of any method or factors so approved;

(i)    if a member information statement in relation to the interest that has been provided to the member does not include the total member credit at the valuation date stated in the statement--that information;

(j)    if the interest is in a regulated superannuation fund or an RSA:

(i)    the amount of restricted non-preserved benefits that had accrued to the member, and would be payable to the member, if he or she were to resign from his or her employment on the date when the information is provided; and

(ii)    the amount (if any) of the member's unrestricted non-preserved benefits;

(k)    if the interest is in an approved deposit fund--the amount, at the date when the information is provided, of the member's unrestricted non-preserved benefits;

(l)    if:

(i)    a payment that would have been a superannuation lump sum, within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided; and

(ii)    the amount of the payment had been the amount payable to the member if he or she had voluntarily ceased to be a member of the plan-- the value that the components of the superannuation lump sum would have had under Subdivision 307-C of that Act would have had;

(m)    if the trustee has given information under Division 2.5 of the SIS Regulations to each member of the plan that the plan is to be reconstructed or terminated--a statement to this effect.

(5)    For paragraph (2)(a), the information that must be provided in relation to each payment split to which the superannuation interest is subject (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non-member spouse's entitlement has been satisfied as required by Division 2.2) is as follows:

(a)    the operative time for the payment split;

(b)    if the payment split is under subparagraph 90MJ(1)(c)(i) or (ii) of the Act, or under a splitting order made under paragraph 90MT(1)(a) of the Act, and the interest was in the payment phase at the appropriate date--the amount that, under subregulation 58(6) or 58D(3), a person is entitled to be paid from each splittable payment that becomes payable in respect of the interest;

(c)    if the payment split is under subparagraph 90MJ(1)(c)(i) of the Act, or under a splitting order made under paragraph 90MT(1)(a) of the Act, and the interest was in the growth phase at the appropriate date:

(i)    the base amount specified in the relevant superannuation agreement or flag lifting agreement in relation to the interest; and

(ii)    if applicable, the adjusted base amount at the appropriate date;

(d)    if the payment split is under subparagraph 90MJ(1)(c)(ii) of the Act and the interest was in the growth phase at the appropriate date:

(i)    the amount set out in the document served on the trustee under paragraph 90MI(b) of the Act; and

(ii)    if applicable, the adjusted base amount at the appropriate date;

(e)    if the payment split is under subparagraph 90MJ(1)(c)(iii) of the Act or under a splitting order made under paragraph 90MT(1)(b) of the Act--the specified percentage that is to apply to any splittable payment that becomes payable in respect of the interest.

(6)    The trustee is not required to provide information mentioned in this regulation to an applicant in any of the following circumstances:

(a)    if the application for information specifically requests the trustee to provide the information mentioned in paragraph (2)(ea) to the applicant, the trustee is not required to provide any other information mentioned in this regulation to the applicant;

(b)    the trustee is not required to provide the information mentioned in paragraph (3)(a) or subparagraph (3)(b)(i) to the applicant unless a record of that information is in the trustee's possession, power or control;

(c)    the trustee is not required to provide the information mentioned in paragraph (4)(aa) or paragraph (4A)(a), as the case requires, to the applicant unless a record of that information is in the trustee's possession, power or control;

(d)    the trustee is not required to provide the information mentioned in paragraph (4)(a), (b), (c) or (ca) or paragraph (4A)(b), (c), (d) or (e), as the case requires, to the applicant unless:

(i)    the application for information specifically requests the trustee to provide this information; and

(ii)    a record of the information is in the trustee's possession, power or control; and

(iii)    a record of the information mentioned in paragraph (4)(aa) or paragraph (4A)(a), as the case requires, is not in the trustee's possession, power or control.

(6A)    If:

(a)    the superannuation interest, or a component of the superannuation interest, is a partially vested accumulation interest; and

(b)    under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest or the component of the interest;

the Minister may, by written determination, provide either or both of the following:

(c)    that the trustee is not required to provide the information about the interest, or the component of the interest, mentioned in one or more paragraphs of subregulation (4A);

(d)    that the trustee must provide other information, as specified in the determination, about the interest or the component of the interest.

(6B)    If, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest, the Minister may, by written determination, provide either or both of the following:

(a)    that the trustee is not required to provide the information about the interest mentioned in one or more paragraphs of subregulations (2) and (3);

(b)    that the trustee must provide other information, as specified in the determination, about the interest.

(6C)    A determination by the Minister under subregulation (6A) or (6B) is a legislative instrument.

(7)    For this regulation, a reference to the value of the interest stated in a statement:

(a)    is a reference to the value stated in the statement, however that value is described (for example, the member's account balance, share in the plan, withdrawal benefit); and

(b)    if 2 or more values are stated in the statement, is taken to be a reference to the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest if the member spouse had voluntarily ceased to be a member of the plan at the date at which the value is stated.

(8)    In this regulation:

“total member credit”, in relation to a superannuation interest of a member and a date, means the total amount that would be standing to the credit of the member in respect of the interest if the benefit in respect of the interest were fully vested at that date.

“valuation date”, in relation to a superannuation interest to which a member information statement applies, means the date as at which the value of the interest, or the total member credit, is stated in the statement.