ASIC Corporations (Intra-Fund Transfers) Instrument 2026/688

Explanatory Statement

ASIC Corporations (Intra-Fund Transfers) Instrument 2026/688

This is the Explanatory Statement for ASIC Corporations (Intra-Fund Transfers) Instrument 2026/688 (Instrument).

The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).

Summary

1.              The Instrument continues relief previously provided under ASIC Corporations (Superannuation: Accrued Default Amount and Intra-Fund Transfers) Instrument 2016/64 (ASIC Instrument 2016/64) in a new instrument.
2.              The Instrument provides relief until 1 April 2031 to trustees of regulated superannuation funds from providing an application form and meeting the cooling-off period requirements in Part 7.9 of the Corporations Act 2001 (Corporations Act) in the course of an ‘intra-fund transfer’ without the affected members’ consent. Various requirements must be satisfied for the relief to apply.
3.              An ‘intra-fund transfer’ is broadly defined in the Instrument to mean a disposal of an interest in the fund and the acquisition of an interest in the same fund of a different class which substitutes the initial interest. It also means any other circumstance where a person’s membership of the fund in relation to a financial product or a sub-plan changes to membership of the fund in relation to another financial product or sub-plan.

Purpose of the instrument

Relief from the application form and cooling-off period requirements

1.              Subsection 1016A(2) of the Corporations Act requires a financial product to be issued or sold only under an eligible application form that is included in, or accompanies, a Product Disclosure Statement (PDS). This is unless a situation covered by paragraphs 1016A(2)(b)–(f) applies. In addition, section 1019B of the Corporations Act requires a cooling-off period to be provided when a financial product is issued or sold to a retail client. During the 14-day cooling-off period, the client has the right to return the financial product and to have the money they paid to acquire the product repaid.  
2.              The Instrument exempts trustees of regulated superannuation funds who issue superannuation products in the course of an intra-fund transfer from the requirements in subsection 1016A(2) and section 1019B in the circumstances specified in notional subsection 1019A(1A) that the Instrument inserts into the Corporations Act (notional subsection 1019A(1A)).
3.              Without this relief, the application form and cooling-off period requirements would apply to an intra-fund transfer. This is because sub-regulation 7.9.02(4) of the Corporations Regulations 2001 (Corporations Regulations) deems that there is an issue of a new interest in a superannuation fund where there is a change in the composition of a person’s membership of one or more sub-plans within the fund. The principal reason for this deeming provision is that sub-plans often involve different rights and benefits.  
4.              ASIC considers it is appropriate to provide relief from the application form and the cooling-off period requirements in the course of an intra-fund transfer in the circumstances specified in notional subsection 1019(1A). This is because, while the transfer would occur without the member’s consent, the member will be adequately protected on the basis that there will be no reduction in their benefits.
5.              Further, the exclusion of the application form and cooling-off period requirements in the intra-fund transfer scenario achieves an alignment with the legal position for an inter-fund transfer that is a successor fund transfer. A requirement of a successor fund transfer is that the new fund, or the transferee fund, must confer on the member the equivalent rights to the rights that the member had under the original fund, or the transferor fund, in respect of the benefits of membership of the fund: see the definition of ‘successor fund’ in sub-regulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994. In relation to an inter-fund transfer that is a successor fund transfer, sub-regulation 7.9.04(1)(c) of the Corporations Regulations provides that the trustee of the new fund may give the member a PDS for the new fund within 90 days after the interest in the new fund is issued. A flow-on effect of this provision is that, for an inter-fund transfer that is a successor fund transfer, there is no requirement to give an application form to the member and the cooling-off period rights are excluded. Therefore, it is appropriate to treat intra-fund transfers in the same way and provide relief from the application form and cooling-off period requirements.

Removal of relief for accrued default amounts to MySuper products

1.              The new Instrument omits redundant relief relating to the movements of accrued default amounts to MySuper products previously provided in ASIC Instrument 2016/64. This is because a trustee must have transferred all accrued default amounts to a MySuper product by 1 July 2017 and therefore the relief is no longer required.

Consultation

1.          On 28 January 2026, ASIC published CS 44 Proposed extension of relief for intra-fund transfers on its website, seeking feedback on its proposal to extend the relief in ASIC Instrument 2016/64. The consultation included a draft of the new Instrument for comment.
2.          ASIC received three substantive submissions in response to its consultation. All submitters were supportive of the proposal to remake the relief in the new Instrument for a five-year duration. Two submitters called for the incorporation of the relief into primary law and one submitter proposed technical amendments. Treasury are aware of the suggestion to incorporate the relief into primary law.

Operation of the instrument

Part 1 - Preliminary

1.          Section 1 of the Instrument provides its name.
2.          Section 2 of the Instrument provides that it commences on the day after the Instrument is registered on the Federal Register of Legislation.
3.          Section 3 of the Instrument provides that it is made under subsection 1020F(1) of the Corporations Act.
4.          Section 4 provides that each instrument specified in the Schedule is amended or repealed as set out in the Schedule.
5.          Section 5 of the Instrument provides a simplified outline. Its purpose is to assist readers in understanding the substantive provisions of the Instrument. However, the outline is not intended to be comprehensive, and readers should rely on the substantive provisions when considering the Instrument’s effect
6.          Section 6 of the Instrument provides a list of definitions used within the Instrument.

Part 2 – Exemptions

1.          Section 7 of the Instrument provides an exemption for trustees of regulated superannuation funds from application form requirements under subsection 1016A(2). The exemption applies in the circumstances specified in notional subsection 1019A(1A).

Part 3 – Declarations

1.          Section 8 of the Instrument inserts notional subsections (1A) and (1B) after subsection 1019A(1).
2.          Notional subsection 1019A(1A) provides that, under the specified circumstances in notional paragraphs 1019A(1A)(a)-(d), the cooling-off period requirements in Division 5 of Part 7.9 do not apply to a trustee of a regulated superannuation fund who issues a superannuation product in the course of an intra-fund transfer.
3.          Notional paragraph 1019A(1A)(a) requires the trustee’s registrable superannuation entity (RSE) licence to include a provision that a transfer of member benefits by intra-fund transfer without member consent is not allowed unless one of the following conditions applies:

1.           the transfer is to a section, division or plan of the fund that confers equivalent rights on the member to the rights they have under the original section, division or plan in respect of the benefits; or
2.           the transfer could have lawfully been made without member consent in the absence of the Instrument;

1.          Notional paragraph 1019A(1A)(b) requires that the governing rules of the fund contain the provision referred to in notional paragraph 1019A(1A)(a).
2.          Notional paragraph 1019A(1A)(c) requires that the trustee has not obtained the member’s consent for the intra-fund transfer.
3.          Notional paragraph 1019A(1A)(d) requires:
   1.           the trustee to take all reasonable steps to ensure that the condition on its RSE licence referred to in notional subparagraph 1019A(1A)(a) has been satisfied;

1.           there must be no interests remaining in the original part of the fund, as the part of the fund that the interest is disposed of and no further interests in that part of the fund must be issued after the transfer of the member’s interest; and
2.           at least 30 days before the superannuation product is issued in the course of an intra-fund transfer, the member must be given a PDS for the product and a significant event notice as required under section 1017B of the Corporations Act.

1.          Notional subsection 1019A(1B) inserts a definition for ‘intra-fund transfer’ and ‘RSE licence’ for the purposes of notional subsection 1019A(1A).

Part 4 – Repeal

1.          Section 9 repeals the Instrument at the start of 1 April 2031.

Schedule 1 – Repeals

1.          Schedule 1 of the Instrument repeals ASIC Instrument 2016/64.

Legislative instrument and primary legislation 

1.          The subject matter and policy implemented by the Instrument is more appropriate for a legislative instrument, rather than primary legislation. This is because the Instrument is made under a power specifically delegated to ASIC which requires a detailed, technical assessment that is best suited for ASIC to undertake rather than Parliament. The Instrument operates to fill in a more comprehensive regulatory framework that sits alongside the primary law.  
2.          It will be a matter for the Government and for Parliament as to whether the Act or Regulations may be amended in future to include the relief in the Instrument.

Duration of the instrument

1.          The duration of the Instrument is five years. This affords superannuation trustees certainty as to their application form and cooling-off period obligations during an intra-fund transfer.

Legislative authority

1.          The Instrument is made under subsection 1020F(1) of the Corporations Act.
2.          Subsection 1020F(1) of the Corporations Act provides that ASIC may, in respect to requirements under Part 7.9 of the Corporations Act, make exemptions under specified conditions, or make a declaration as if specified provisions were omitted, modified or varied.

Statement of Compatibility with Human Rights 

1.          The Explanatory Statement for a disallowable legislative instrument must contain a Statement of Compatibility with Human Rights under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights is in the Attachment.
2.          Instruments (not being regulations) relating to superannuation are not disallowable legislative instruments: see section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015.
3.          ASIC considers it is likely that the exemption in section 9 applies to the Instrument. Nonetheless, ASIC has decided to prepare a Statement of Compatibility with Human Rights.

Attachment

Statement of Compatibility with Human Rights

This Statement of Compatibility with Human Rights is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

ASIC Corporations (Intra-Fund Transfers) Instrument 2026/688

Overview

1.              The ASIC Corporations (Intra-Fund Transfers) Instrument 2026/688 (Instrument) continues the relief previously contained in ASIC Corporations (Superannuation: Accrued Default Amount and Intra-Fund Transfers) Instrument 2016/64 (ASIC Instrument 2016/64), other than redundant relief for movements of accrued default amounts to MySuper products.

1.              The relief means that a trustee of a regulated superannuation fund does not have to comply with application form and cooling-off period requirements in subsection 1016A(2) and Division 5 of Part 7.9 of the Corporations Act, respectively, when issuing a superannuation product in the course of an intra-fund transfer if specified circumstances are satisfied.

1.              The Instrument repeals ASIC Instrument 2016/64.

Assessment of human rights implications

4. The Instrument does not engage any of the applicable rights or freedoms.

Conclusion

5. The Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.