Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) Amendment Determination 1999 (No. 1)

Administered by Department of Social Services

Legislation au F2008B00500 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) Amendment Determination 1999 (No. 1)

Summary

This determination is made under subsection 9A(6) of the Social Security Act 1991 (the Social Security Act), which was inserted by Schedule 3 to the Social Security and Veterans’ Affairs (Budget and Other Measures) Act 1998.

The purpose of this determination is to amend the guidelines (the Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) Determination 1998 made by the Secretary on 18 September 1998) (the 1998 Guidelines) for the exercise of the Secretary’s discretion, under subsection 9A(5) of the Social Security Act, to determine that an income stream that does not meet the requirements of subsection 9A(2) is an asset-test exempt income stream for the purposes of the Social Security Act.

The 1998 Guidelines provided that an asset-test exempt lifetime income stream provided from a private sector defined benefit fund would only apply until 19 September 1999.  This exclusion has been removed from this determination.

Background

Section 9A of the Social Security Act specifies the characteristics that a lifetime income stream must have to be exempt from the assets test.  These characteristics are designed to ensure a steady drawdown of capital and income over a long period, with no access to the capital.  Subsection 9A(1) of the Social Security Act specifies that lifetime income streams are asset-test exempt if they arise under a contract or governing rules that meet the requirements of subsection 9A(2), and the Secretary has not made a determination under subsection 9A(4) in relation to the income stream (which would remove the assets test exempt status).

Subsection 9A(5) of the Social Security Act states that the Secretary may decide that an income stream that does not meet all the specified characteristics in subsection 9A(2), may nevertheless be treated as an asset-test exempt income stream.  In order to make such a decision, the Secretary must take into account guidelines, which are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

These guidelines will be used to provide a limited exemption to public and private sector defined benefit superannuation pensions because they only deviate slightly from required characteristics for asset-test exemption and they generally satisfy the Government’s retirement income aims.  In addition, changes to the public and private sector schemes from which these income streams arise may require legislative amendment or changes to trust deeds that may not be achieved quickly or easily.  In general, the income streams targeted by these guidelines are a model for retirement income streams in terms of a regular and dependable income stream in retirement, with no access to the underlying capital.

Explanation of the provisions

Section 1 of the determination states the name of the determination and section 2 states that the determination commences on gazettal.

Section 3 specifies that Schedule 1 amends the 1998 Guidelines.

Schedule 1—Amendments

Schedule 1[1] amends section 1.3 of the 1998 Guidelines of the definition of lifetime income stream so that they are made at least annually in relation to a person.

Schedule 1[2] amends section 1.3 of the 1998 Guidelines of the definition of private sector superannuation scheme by substituting a new definition, private sector fund, which has the same meaning as in subsection 10(1) of the Superannuation Industry (Supervision) Act 1993.

Schedule 1[3] amends section 1.3 of the 1998 Guidelines by omitting the definition of regulated superannuation fund.

Schedule 1[3] amends Part 2 of the 1998 Guidelines by substituting a new Part 2.

Part 2—Guidelines

Lifetime income stream under a public sector fund or superannuation scheme

Section 2.1(1) of the determination specifies that the Secretary must have regard to section 2.1 in making a determination under subsection 9A(5) of the Social Security Act for exempting from the assets tests a lifetime income stream that is paid from a public sector fund or a public sector superannuation scheme where the income stream does not fully meet the requirements of subsection 9A(2) of the Social Security Act.

Section 2.1(2) specifies that the income stream must be a lifetime income stream that must be a defined benefit income stream, that the amount of payments must be determined by the governing rules of the fund or scheme and that the income stream is a defined benefit superannuation pension (paragraph (a)) or that the income stream is a superannuation pension under an exempt public sector superannuation scheme within the meaning of section 10 of the Superannuation Industry (Supervision) Act 1993 being a scheme to which subregulation 1.04(4A) of the Superannuation Industry (Supervision) Regulations 1994 applies.

Section 2.1(3) specifies that the fund or scheme must have been established before 20 September 1998.  Paragraph (a) provides that for an income stream commencing before 20 September 1998 the value of the incoming stream is disregarded in calculating the value of the person's assets because of the application of section 1118 of the Social Security Act as in force immediately before 20 September 1998 (the previous section 1118).  Paragraph (b) provides that for an income stream commencing on or after 20 September 1998, that is a defined benefit superannuation pension existing before 20 September 1998, the value of the income stream would have been disregarded in calculating the value of the person's assets because of the application of the previous section 1118 if the commencement day of the income stream was before 20 September 1998 and defined benefit superannuation pension payments were made before that date.

Lifetime income stream under a private sector fund

Section 2.2(1) of the determination specifies that the Secretary must have regard to section 2.2 in making a determination under subsection 9A(5) of the Social Security Act for exempting from the assets tests a lifetime income stream that is paid from a private sector fund where the income stream does not fully meet the requirements of subsection 9A(2) of the Social Security Act.

Section 2.2(2) specifies that the income stream must be a lifetime income stream that is a defined benefit income stream, that the amount of payments must be determined by the governing rules of the fund and that the income stream is a defined benefit superannuation pension.

Section 2.2(3) specifies that the fund must have been established before 20 September 1998.  Paragraph (a) provides that for an income stream commencing before 20 September 1998 the value of the incoming stream is disregarded in calculating the value of the person's assets because of the application of section 1118 of the Social Security Act as in force immediately before 20 September 1998 (the previous section 1118).  Paragraph (b) provides that for an income stream commencing on or after 20 September 1998, that is a defined benefit superannuation pension existing before 20 September 1998, the value of the income stream would have been disregarded in calculating the value of the person's assets because of the application of the previous section 1118 if the commencement day of the income stream was before 20 September 1998 and defined benefit superannuation pension payments were made before that date.

Section 2.2(4) provides that the fund must have a direct connection with the previous employment of the person receiving the income stream, or in the case of a reversionary beneficiary, the person who would have received the income stream if that person had not died.

Section 2.2(5) provides that a fund has a direct connection with a person's previous employment if the income stream from the fund became payable to, or in respect of the person because of that employment.

Overview

The Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) Amendment Determination 1999 (No. 1) was made under subsection 9A(6) of the Social Security Act 1991, with the purpose of amending the guidelines for the exercise of the Secretary's discretion to determine that an income stream, which does not meet the requirements of subsection 9A(2) of the Social Security Act, is an asset-test exempt income stream. Enacted by the Parliament of Australia, this amendment was introduced to address gaps in the existing guidelines, particularly in relation to the duration of the asset-test exemption for private sector defined benefit fund income streams. The policy objective of this amendment was to provide a more comprehensive framework for assessing income streams that deviate slightly from the required characteristics for asset-test exemption, while still aligning with the Government's retirement income aims. This amendment ensures a consistent and fair approach to the assessment of such income streams, considering factors such as the type of fund, the nature of the income stream, and the connection to previous employment.

Scope and Application

The Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) Amendment Determination 1999 (No. 1) pertains to the Social Security Act 1991, specifically under subsection 9A(6), as inserted by the Social Security and Veterans’ Affairs (Budget and Other Measures) Act 1998. This determination aims to amend the existing Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) Determination 1998, which provides guidance for the Secretary to determine whether an income stream not meeting the requirements of subsection 9A(2) can still be considered an asset-test exempt income stream. This determination removes the exclusion for asset-test exempt lifetime income streams provided from private sector defined benefit funds, which was initially set to expire on 19 September 1999. The amendment applies to both public and private sector defined benefit superannuation pensions that slightly deviate from the required characteristics for asset-test exemption and generally align with the government's retirement income objectives. This determination affects individuals receiving lifetime income streams from public or private sector funds or superannuation schemes established before 20 September 1998. It is applicable nationally in Australia as it pertains to the Social Security Act, which is a Commonwealth Act. There are no specific exclusions or exemptions mentioned in the determination, although the Secretary's discretion under subsection 9A(5) of the Social Security Act allows for certain income streams that do not meet all the specified characteristics in subsection 9A(2) to be considered asset-test exempt. The application of this determination may be further extended or restricted through subordinate instruments.

Key Provisions

This Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) Amendment Determination 1999 (No. 1) amends the guidelines for determining if an income stream qualifies as an asset-test exempt income stream under the Social Security Act 1991. It removes the time limit that previously applied to lifetime income streams provided by private sector defined benefit funds, which had been set to expire on 19 September 1999. These amendments ensure that such income streams can continue to be exempt from the assets test indefinitely, provided they meet the specified criteria. The main obligations imposed by this determination on the parties it governs include ensuring that the lifetime income streams are paid from either a public or private sector fund or superannuation scheme. For public sector income streams, the Secretary must consider the guidelines outlined in section 2.1, which specify that the income stream must be a defined benefit income stream, and its payments must be determined by the governing rules of the fund or scheme. For private sector income streams, the Secretary must consider the guidelines in section 2.2, which similarly require the income stream to be a defined benefit income stream and specify that the fund must have been established before 20 September 1999. Additionally, for private sector funds, there must be a direct connection between the fund and the previous employment of the person receiving the income stream or, in the case of a reversionary beneficiary, the person who would have received the income stream if they had not died. The determination does not specify explicit offences, penalties, or civil/criminal consequences for non-compliance with the guidelines. However, any failure to adhere to these guidelines when determining the asset-test exempt status of an income stream could potentially lead to the income stream being subjected to the assets test, which could affect the eligibility of the recipient for social security benefits. This could be particularly significant if the income stream's value is incorrectly included in the calculation of the recipient's assets, leading to an overestimation of their financial resources and consequently a reduction or termination of benefits.

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