Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020

Administered by Department of the Treasury

Legislation au F2020L00532 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Treasurer

Superannuation Industry (Supervision) Act 1993

Retirement Savings Accounts Act 1997

Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020

Section 353 of the Superannuation Industry (Supervision) Act 1993 (the SIS Act) and section 200 of the Retirement Savings Accounts Act 1997 (the RSA Act) provides that the Governor-General may make regulations prescribing matters required or permitted by these Acts to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to these Acts.

The purpose of the Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020 (the Regulations) is to revise the criteria for holders of a Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visa to apply to the Commissioner of Taxation for release of their superannuation on compassionate grounds.

The Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations 2020, which commenced on the 17 April 2020, made amendments to the early release provisions in the Superannuation Industry (Supervision) Regulations 1994 (the SIS Regulations) and the Retirement Savings Accounts Regulations 1997 (the RSA Regulations). These recent amendments allow temporary residents affected by the adverse economic effects of coronavirus to have up to $10,000 released from their superannuation or retirement savings account on compassionate grounds.

This included providing that holders of a Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visa could apply for release if they have, on or after 1 January 2020, had their working hours reduced to zero but are still employed by their employer. The Regulations replace this criterion with requirements for the visa holder to be employed and unable to meet their immediate living expenses. The revised criteria is expected to broaden access to the early release provisions for these visa holders.

The SIS Act and the RSA Act do not specify any conditions that need to be met before the power to make the Regulations may be exercised.

Consultation has been undertaken with the Australian Taxation Office and the Department of Home Affairs to ensure the effectiveness of the Regulations. Public consultation has not occurred given the need to respond to urgent and unforeseen events.

Details of the Regulations are set out in Attachment A.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commenced on the day after registration.

A statement of Compatibility with Human Rights is at Attachment B.

An exemption from Regulation Impact Statement requirements was granted by the Prime Minister as there were urgent and unforeseen events.

ATTACHMENT A

Details of the Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020

Section 1 – Name of the Regulations

This section provides that the name of the Regulations is the Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020 (the Regulations).

Section 2 – Commencement

Schedule 1 to the Regulations commences on the day after the instrument is registered on the Federal Register of Legislation.

Section 3 – Authority

The Regulations are made under the SIS Act and RSA Act.

Section 4 – Schedule

This section provides that each instrument that is specified in the Schedules to this instrument will be amended or repealed as set out in the applicable items in the Schedules, and any other item in the Schedules to this instrument has effect according to its terms.

Schedule 1 – Amendments

 

Items 1 and 2 (paragraph 6.19B(1C)(b) of the SIS Regulations and paragraph 4.22B(1C)(b) of the RSA Regulations) - Revised criteria for release for Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visa holders

 

These items provide revised criteria for a holder of a Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visa mentioned in the Migration Regulations 1994 to apply to the Commissioner of Taxation for early release of their superannuation on compassionate grounds. The revised criteria are that the person is employed and is unable to meet immediate living expenses.

 

The revised criteria replaces the criteria introduced by Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations 2020, which had required the visa holder to have, on or after 1 January 2020, had their working hours reduced to zero and still be employed by their employer.

 

The revised criteria is expected to broaden access to the early release provisions for these visa holders.

 

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020

This Legislative 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.

Overview of the Legislative Instrument

The purpose of the Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020 (the Regulations) is to revise the criteria for holders of a Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visa to apply to the Commissioner of Taxation for release of their superannuation on compassionate grounds. The revised criteria is expected to broaden access to the early release provisions for these visa holders.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Overview

The Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020 were enacted to address urgent and unforeseen events caused by the adverse economic effects of the coronavirus, specifically for temporary residents in Australia. This legislative instrument was introduced under the authority of the Superannuation Industry (Supervision) Act 1993 and the Retirement Savings Accounts Act 1997, and it aims to revise the criteria for holders of Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visas to apply for the release of their superannuation on compassionate grounds. The primary policy objective is to provide broader access to the early release provisions for these visa holders who are unable to meet their immediate living expenses due to the economic disruptions caused by the pandemic. The regulations were developed in consultation with relevant authorities, including the Australian Taxation Office and the Department of Home Affairs, and they commenced on the day after registration, with a statement of compatibility with human rights provided in Attachment B.

Scope and Application

The Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020 applies to holders of a Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visa who are eligible to apply for the release of their superannuation on compassionate grounds. This legislative instrument revises the criteria for such temporary residents affected by the adverse economic impacts of the coronavirus, allowing them to access their superannuation funds under certain conditions. The Regulations amend the Superannuation Industry (Supervision) Regulations 1994 and the Retirement Savings Accounts Regulations 1997, broadening access for eligible temporary residents. This Act applies on a Commonwealth level, and its provisions are enforced across Australia, impacting temporary residents who meet the specified criteria. There are no stated exclusions or exemptions within the Regulations, but it does note that public consultation was not undertaken due to the urgent nature of the economic impacts caused by the coronavirus. The Regulations extend the application of the SIS Act and RSA Act through subordinate instruments, ensuring that the specified amendments are implemented effectively.

Key Provisions

The Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations (No. 2) 2020 (Regulations) amend the existing criteria under which temporary visa holders can apply for the release of their superannuation on compassionate grounds. Specifically, Section 353 of the Superannuation Industry (Supervision) Act 1993 (SIS Act) and Section 200 of the Retirement Savings Accounts Act 1997 (RSA Act) provide the legislative basis for these regulations. The primary amendments introduced by the Regulations are found in Schedule 1, particularly in items 1 and 2, which revise the eligibility criteria for Subclass 457 (Temporary Work (Skilled)) or Subclass 482 (Temporary Skill Shortage) visa holders. Under the new criteria, visa holders can apply for the release of their superannuation if they are employed but are unable to meet their immediate living expenses, replacing the previous requirement that they must have had their working hours reduced to zero. These regulations impose specific obligations on temporary visa holders who wish to apply for the early release of their superannuation. They must demonstrate that they meet the revised criteria, specifically that they are employed and are unable to meet their immediate living expenses. This requirement replaces the earlier stipulation that their working hours must have been reduced to zero. Additionally, the regulations require applicants to submit their applications to the Commissioner of Taxation. Failure to meet these obligations can result in their application being rejected. There are no specific offences or penalties outlined within the Regulations themselves. However, any failure to comply with the conditions set out in the regulations when applying for the early release of superannuation could potentially lead to the rejection of the application by the Commissioner of Taxation. The regulations are designed to ensure that the early release provisions are used appropriately and in line with the compassionate grounds intended by the legislation. The absence of specific penalties within the regulations suggests that the primary consequence of non-compliance is the denial of the application for early release of superannuation.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.