Category: MIL-OSI

Source: New South Wales Ministerial News

Source: New places to play in Gungahlin

Information for trustees of APRA regulated super funds

This information may help advise trustees of APRA-regulated superannuation funds with what to consider when a super income stream starts or stops.

This applies only to taxed, complying super funds that started a super income stream in the form of an account-based pension, including a transition to retirement income stream (TRIS), on or after 1 July 2007.

Super income stream

A super income stream includes an income stream that is a pension, according to the Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations).

An income stream can’t be a pension in accordance with the SIS Regulations unless it meets 2 requirements:

• payment occurs at least annually
• for an account-based pension, a minimum amount is paid to the member each year.

We use the term:

• ‘pension’ when referring to the operation of the Superannuation Industry (Supervision) Act 1993 (SIS Act) or SIS Regulations
• ‘super income stream’ when referring to the operation of income tax laws.

A super income stream exists when all of the following apply:

• a member is entitled to a series of payments that relate to each other
• the payments are periodic, whether paid annually or more frequently
• the payments are made over an identifiable period of time
• the minimum payment standards of the SIS Regulations have been met.

A liability to make a single payment for one year is not a series of payments and won’t meet the requirement of being a super income stream. While there must be continuing liability, a super income stream may stop after only one payment.

For more information see Taxation Ruling TR 2013/5 Income tax: when a superannuation income stream commences and ceases

Paying a super income stream

Once an account-based pension starts, there is an ongoing requirement for trustees to meet the minimum pension standards in the SIS Regulations.

If any of the requirements of the SIS Regulations are not met in an income year, both of the following apply:

• the super income stream is taken to have ceased at the start of that income year for income tax purposes
• you are taken to have not been paying an income stream at any time during the income year.

Reporting obligations

Funds have an obligation to report when an income stream starts to be in the retirement phase for transfer balance cap purposes. Funds also have an obligation to report other retirement phase events after an income stream has started, most commonly commutations of retirement phase income streams, for transfer balance cap purposes.

Funds have a broader obligation to report when an income stream stops and an account is closed.

Once funds have completed on-boarding to the Member account transaction serviceExternal LinkExternal Link (MATS) they are required to report retirement phase events such as starting an income stream via MATS. Prior to MATS on-boarding, funds report retirement phase events via the Transfer balance account report (TBAR).

Note: Retirement phase events with an effective date before 1 July 2018 and reporting a response to a Commissioner’s commutation authority should be reported through the TBAR.

For more information see

Tax implications for a fund paying a super income stream to a member

Once a complying super fund starts to pay a super income stream, you may be entitled to exempt a portion of the income earned from the fund’s assets until such time as the pension stops. This is referred to as exempt current pension income (ECPI).

ECPI doesn’t include assessable contributions or non-arm’s length income.

From 1 July 2017, funds are unable to claim ECPI for the earnings from assets supporting a Transition to Retirement Income Stream (TRIS) that is not in the retirement phase. These earnings will now be taxed at 15%.

A TRIS is in the retirement phase when the person receiving the TRIS reaches 65 years old or notifies their fund that they have met a specified nil cashing restriction condition of release, such as retirement, permanent incapacity or terminal illness.

A TRIS will also be in retirement phase if it starts to be paid to a reversionary beneficiary after the member’s death, irrespective of whether the reversionary beneficiary has reached 65 years old or they have personally met a nil cashing restriction condition of release.

From 1 July 2017, ECPI will be extended to certain retirement phase products such as deferred lifetime annuities which are not currently paying a benefit.

For more information see

If you don’t meet the minimum pension payment requirements under the SIS Regulations

If a fund doesn’t meet the minimum pension payment requirements for an account-based pension in an income year, the super income stream will be taken to have ceased at the start of that income year for income tax purposes.

From the start of the income year, the account is no longer supporting a super income stream and any payments from the start of the income year onwards will be super lump sums for both income tax and SIS Regulations purposes.

This is the case even if the member remains entitled to receive a payment from the fund for the pension under the governing rules or under general trust law concepts.

If income from assets supporting the income stream was eligible to be treated as ECPI because the income stream was in retirement phase, the fund won’t be entitled to treat the income or capital gains as ECPI for the income year or subsequent years.

If a pension stops being in the retirement phase because the minimum pension payment requirements are not met, the fund must report a STO event (income stream stops being in the retirement phase) for the member via the Member Account Transaction Service (MATS) Retirement Phase Event reporting.

Meeting the minimum pension payment requirement in subsequent years

For the member to receive a super income stream for income tax purposes in future years, the income stream must cease (for example by commutation) and a new superannuation income stream must start that meets all of the requirements of the SIS Regulations.

When a new super income stream starts, you will be required to recalculate the tax-free and taxable components of the new super income stream.

You will also need to revalue assets at market value and recalculate the minimum pension payment required at the start of the new super income stream.

General power of administration may apply to allow an APRA-regulated fund to continue claiming ECPI

If the total payments in an income year to a member are less than the minimum payment amount for a super income stream, we may exercise our general power of administration (GPA) to allow the fund to continue to claim ECPI if all of the following conditions are met.

• You didn’t pay the minimum pension amount in that income year because of either:
  • an honest mistake you made resulting in a small underpayment of the minimum payment amount for a super income stream
  • matters outside your control.
• The entitlement to the ECPI exemption would have continued but for you not paying the minimum payment amount.
• When you became aware that the minimum payment amount was not met for an income year, you make a catch-up payment as soon as possible in the following (current) income year; or treat a payment (intended prior year payment) made in the current income year, as being made in that prior income year.
• Had you made the catch-up payment in the prior income year, the minimum pension standards would have been met.
• You treat the catch-up payment, for all other purposes, as if it were made in the prior income year.

If all of these conditions are met:

• the super income stream is taken to have continued and a new pension is not started in the following income year – the proportioning rule doesn’t need to be applied again to determine the tax-free and taxable components
• you can continue to claim an income tax exemption for earnings on assets supporting that pension, notwithstanding the fund not meeting its obligations under super law
• any payments made to the member during that income year are treated as super income stream benefit payments (such as pension payments) and not super lump sums.

If the circumstances of the underpayment don’t meet all of these conditions, the exercise of the GPA would not be relevant.

Defining a ‘small’ underpayment

We consider a small underpayment to be one that doesn’t exceed one-twelfth of the minimum pension payment in the relevant income year.

Defining ‘as soon as practicable’

Generally, if an underpayment is due to an honest trustee error, we consider ‘as soon as practicable’ to be within 28 days of you becoming aware of the underpayment.

If the underpayment is due to matters outside your control, ‘as soon as practicable’ is considered to be within 28 days of you being in a position to be aware of the underpayment.

When you can self-assess your entitlement to the GPA concession

We allow you to self-assess and apply the GPA concession if all of the following apply:

• not meeting the minimum pension requirements was an honest mistake or was outside your control
• the underpayment is only small – doesn’t exceed one-twelfth of the minimum annual pension payment
• all of the other GPA conditions have been met.

In all other cases, you must write to us and outline why you didn’t meet the minimum pension requirements for us to consider the exercise of our general power of administration.

Example 1: you didn’t meet the minimum pension requirements for the year ending 30 June due to a transposition error which resulted in a small underpayment

In considering whether the GPA concession would apply, the trustee would need to assess if all of the following apply:

• payments were made during the income year and not meeting the minimum pension payment requirements by 30 June was due to an honest administrative error
• the amount of the underpayment was small
• a catch-up payment was made as soon as practicable, in the following income year.

Based on meeting all of these conditions, we will allow the trustee to self-assess and apply the GPA concession. Despite the fund not meeting its obligations under super law:

• the super income stream doesn’t stop and a new pension is not started in the following income year
• the trustee continues to claim an income tax exemption for earnings on assets supporting that pension.

End of example

Example 2: you incorrectly calculated the minimum pension requirement

The trustee makes an honest administrative error when calculating the minimum pension payment in the relevant income year. The trustee used the incorrect minimum pension percentage factor to calculate the July 2017 pension payment. The member turned 65 years old on 28 June 2017 so the percentage factor increased to 5%, however, the trustee used 4% as this was the percentage they had used in the previous year and there was a delay in updating their computer system.

The trustee needs to assess if all the following apply:

• payments were made during the income year, and not meeting the minimum pension payment requirements by 30 June 2017 was due to an honest administrative error
• the amount of the underpayment was small
• a catch-up payment was made as soon as practicable, in the following income year (2017–18).

Based on meeting all of these conditions, we will allow the trustee to self-assess their entitlement to the GPA concession to treat the fund as having continuously paid a super income stream.

End of example

If you don’t meet the conditions to self-assess

If the circumstances of the underpayment don’t meet all of these conditions, the super income stream will be taken to have ceased for income tax purposes from the start of the income year.

For the consequences see:

If you think we should consider your case further, you need to outline the relevant circumstances to us in writing.

To ensure a fair and reasonable outcome is achieved in each case, our decision will be made in accordance with the statements and principles set out in the Taxpayers’ charter, compliance model and the good decision-making model, which requires that the decision be legal, ethical, overt, sensible, timely and in accordance with the principles of natural justice.

Recording the underpayment of the pension as an ‘accrual’

You can’t record the underpayment of the pension as an ‘accrual’ in the accounting records of the fund. For you to meet the minimum pension payment standards you must meet the payment requirements both in form and effect. It is not enough for the rules of the pension to state a payment will be made in each income year if the payment for a particular income year is not actually made.

If you don’t make the minimum pension payment in an income year, the pension will be taken to have stopped at the start of that income year for income tax purposes, unless we have exercised the GPA.

This applies even if the member remains entitled to receive a payment from the super fund for the purported income stream under the governing rules or under general trust law concepts and you record the underpayment as an ‘accrual’ to recognise that liability.

Source: South Australia County Fire Service

Issued on
10 Apr 2025 14:12

Issued for
Passat Street near Port Lincoln on the Eyre Peninsula.

Warning level
Advice – Threat is Reduced

Action
The threat of this fire has reduced however people are reminded to take care in the area. Smoke will reduce visibility in the area and there is a risk of falling trees and branches.

For updates, check the MFS website at mfs.sa.gov.au or phone the Information Hotline on 1800 362 361.

Source: New South Wales – News

Serious and Organised Crime Branch, members of the Local Service Areas with support of Consumer and Business Services searched 31 premises at Port Pirie, Port Augusta, Whyalla and Port Lincoln between 1 April and 3 April as part of Operation Eclipse.

The locations searched included tobacconists, barber shops, gift shops, mini-marts, commercial storage facilities and residential premises.

The searches resulted in the arrest of a man, 51, of Whyalla Playford for unlawful possession of $225,655 cash.

Investigation is ongoing in relation to other seizures of cash and illicit tobacco.

Operation Eclipse commander Detective Chief Inspector Brett Featherby said the regional seizures had significantly disrupted the activities of syndicates operating in those regional areas and enhanced our knowledge or their business model.

“Organised crime syndicates operating in regional areas will be subject to a whole of SAPOL response to disrupt their criminal activity and financial operations,’’ he said.

“SAPOL will pursue criminal charges when sufficient evidence exists and that includes those who are supporting and enabling that activity and take every opportunity to enforce the full extent of the confiscations legislation to seize assets of those involved.’’

Operation Eclipse has so far resulted in 33 arrests for offences including blackmail, arson, money laundering and serious criminal trespass.

There have been 179 premises searched – 47 residential, 119 businesses and 13 storage facilities – more than $2 million in cash, three firearms and almost $16.2 million in tobacco seized. 
Significantly, there have been 366 calls to Crime Stoppers since October 2 that have resulted in information being provided to police.

Commissioner for Consumer Affairs Brett Humphrey said the partnership between CBS and SAPOL had made a significant impact on the illicit tobacco and vape trade in South Australia.

“Together, we are making inroads into the sale of illicit tobacco and vapes and we are taking this very seriously.

“CBS will continue to work with other agencies focussed on reducing the illicit tobacco trade in South Australia.”

Anyone with any information on criminal activities surrounding the sale of illicit tobacco is urged to contact Crime Stoppers on 1800 333 000 or at www.crimestopperssa.com.au – you can remain anonymous.

Source: New South Wales Community and Justice

Man charged over alleged armed robbery at Invermay

Thursday, 10 April 2025 – 2:19 pm.

A 33-year-old Launceston man has been charged following a disturbance and an alleged armed robbery at Invermay yesterday.
Police were called to Dry Street just after 10am Wednesday after reports a man had threatened members of the public while in possession of a metal pole, before stealing cash and property from a nearby business.
Nobody was physically injured, and he was quickly arrested by police.
The man was charged with armed robbery, assault a public officer, assault, resist a police officer, expose person, stealing, three counts of common assault, trespass and three counts of destroy property.
He was detained to appear in the Launceston Magistrates Court tonight.

Source:

Source: South Australia County Fire Service

Issued on
10 Apr 2025 12:19

Issued for
PASSAT STREET near Port Lincoln on the Eyre Peninsula.

Warning level
Advice – Avoid Smoke

Action
Smoke from PASSAT STREET is in the Port Lincoln area.

Smoke can affect your health. You should stay informed and be aware of the health impacts of smoke on yourself and others.

Symptoms of exposure includes shortness of breath, wheezing and coughing, burning eyes, running nose, chest tightness, chest pain and dizziness or light-headedness.

If you or anyone in your care are having difficulty breathing, seek medical attention from your local GP. If your symptoms become severe, call 000.

More information will be provided by the MFS when it is available.

Source:

We continue to advise exercise a high degree of caution in Brazil due to the threat of violent crime. From 10 April, you’ll need a visa to enter Brazil. Entry and exit conditions can change at short notice (see ‘Travel’).

Source: Allens Insights (legal sector)

Lessons from ACCC v Telstra 5 min read

On 21 February 2025, the Federal Court of Australia (the Court) handed down its decision in Australian Competition and Consumer Commission v Telstra Limited [2025] FCA 93. The Court found Telstra misled nearly 9000 customers via its Belong broadband service by failing to inform them of a reduction to the maximum upload speed on their internet plans.

The decision is a reminder that not informing customers about changes to a material feature of a product or service can be considered misleading or deceptive under the Australian Consumer Law (ACL), if the circumstances create a reasonable expectation that the service remains unchanged.

In this Insight, we explore the decision and its implications for businesses in Australia.

Key takeaways

• Failure to notify customers about a material change to a product or service can amount to a false or misleading representation, or misleading or deceptive conduct under the ACL. This is especially the case where the product or service continues to be marketed, invoiced and administered in the same manner, creating a reasonable expectation amongst consumers that the product or service is the same in all material aspects as it has always been.
• Businesses should be proactive in notifying customers in a timely manner of changes that impact the value or performance of their service to mitigate regulatory and reputational risks.

ACCC allegations

The Australian Competition and Consumer Commission (ACCC) alleged that Telstra, operating the Belong brand, contravened the ACL by changing the upload speed of its ‘Premium’ NBN plan from 40Mbps to 20Mbps in late 2020 without notifying affected customers.

The ACCC’s case focussed on two classes of customers who purchased the ‘Premium’ plan prior to being migrated to a slower 20Mbps plan without being notified:

• Cohort A, being 2785 customers who originally signed up to the ‘Premium’ plan when it was expressly advertised in published materials as including 40Mbps upload speeds. These customers were informed of the change retrospectively in 2021 and 2023; and
• Cohort B, being 6112 customers who signed up for the ‘Premium’ plan after Belong had stopped specifying an upload speed in its published materials, referring only to the plan as ‘Premium’.

For both cohorts, the ACCC alleged that Telstra engaged in misleading or deceptive conduct and made false or misleading representations to customers that the service they were receiving was the same as what they had originally signed up for, when it was not.

Telstra admitted to having misled Cohort A customers but denied making any misleading representations to Cohort B customers.

The Court’s findings

The Court found that Telstra contravened the ACL by unilaterally migrating its customers to a different plan without notifying them. In respect of Cohort A customers, the Court found this conduct contravened sections 18, 29(1)(b) and 29(1)(g) of the ACL.

In respect of Cohort B customers, the Court found this conduct contravened sections 18 and 29(1)(g) (false and misleading representations surrounding the performance characteristics of a good or service) but did not amount to a contravention of section 29(1)(b) (false and misleading representations surrounding the particular standard, quality, value or grade of a service).

Cohort A customers

In respect of Cohort A customers, the Court found that Telstra represented to consumers that the ‘Premium’ plan maintained the same upload speed capabilities after the migration as it did before. This representation arose because customers had a reasonable expectation that they would be notified of any detrimental changes to their service—an expectation created by Belong’s silence contextualised by the published assertions about the plan’s characteristics (including explicit references to the plan possessing maximum upload speeds of 40Mbps) and the ongoing administration of the service as if nothing had changed.

In these circumstances, the Court held that on and from the date of the migration, and until Belong corrected the representations in 2021 and 2023, Telstra’s silence amounted to misleading or deceptive conduct for the purposes of section 18 of the ACL, and constituted a false and misleading statement regarding the standard of the service and the service’s performance characteristics, amounting to contraventions of sections 29(1)(b) and 29(1)(g) respectively.

Cohort B customers

In the case of Cohort B customers, Telstra denied it made any false or misleading representations to consumers. While Belong did not expressly state the maximum upload speed to these customers at the time of purchase, the ACCC alleged that Telstra nevertheless represented to consumers that their service was the same as it was at the time of purchase. This representation was said to be created by Telstra’s silence contextualised by Belong’s terms and conditions (which provided that Belong could migrate customers to alternative services provided ‘reasonable notice’ was given to customers) (Terms and Conditions Conduct), the continued marketing of the plan as a ‘Premium’ plan (Marketing Conduct), and the continued invoicing of the ‘Premium’ plan (Invoicing Conduct).

The Court found that the upload speed was ‘sufficiently critical’ to the character of an NBN plan that customers would reasonably expect to be advised of a detrimental change to it. The Court also considered that Telstra’s silence combined with the Marketing Conduct and Invoicing conduct, created a representation that a consumer’s service had not changed in any material respect (including upload speed). It followed that, by failing to notify customers of their migration to plans with slower upload speeds, Telstra falsely represented to customers that their plans continued to have the same maximum upload speeds as they always had, when in fact they did not. In reaching this conclusion, the Court considered various combinations of Telstra’s Terms and Conditions Conduct, Marketing Conduct, Invoicing Conduct and silence to identify which combinations had the effect of creating a false representation.

Ultimately, the Court found that Telstra engaged in misleading or deceptive conduct for the purposes of section 18 of the ACL, and made a false and misleading statement regarding the service’s performance characteristics in contravention of section 29(1)(g). Telstra was not found to have contravened section 29(1)(b), as Belong did not represent the particular standard of the service, only that the service continued to provide the same upload speeds as at the time of purchase.

What this means for businesses in Australia

This case highlights the critical importance of transparency and clear communication with consumers.

Businesses must ensure that any changes to their service terms, especially changes that could be perceived as detrimental, are clearly and proactively communicated to customers. This is particularly the case where the change relates to a term which is material to the service, such that customers would reasonably expect to be notified of any change.

Source: Allens Insights (legal sector)

Exploring the ‘gold standard’ in Indigenous engagement 4 min read

The principle of ‘free, prior and informed consent’ (FPIC) is recognised as a ‘gold standard’ for engaging with First Nations communities in the context of environmental, social and governance (ESG) considerations.

FPIC is encompassed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which, although ratified by Australia, has not yet been incorporated into domestic law. FPIC is prominent as a consideration for project proponents consulting with First Nations stakeholders in relation to native title approvals for project development, and protection of cultural heritage. Notably, in its current review of the future act regime under the Native Title Act 1993 (Cth) the Australian Law Reform Commission (ALRC) is examining whether the future acts regime adequately reflects internationally recognised principles of human rights, including FPIC.¹

In this Insight, we consider a recent Canadian decision on FPIC and explore its potential impact on FPIC considerations in Australia.

Status of UNDRIP in Canada

In contrast to Australia, Canada has incorporated UNDRIP into its domestic law. As one of the first countries to enact domestic legislation implementing UNDRIP through the United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14) (UNDA), Canada has been at the forefront of developments in Indigenous rights and consultation.

In Kebaowek First Nation v Canadian Nuclear Laboratories 2025 FC 319, the Federal Court of Canada recently provided clarification on the application of the UNDRIP and FPIC in Canadian law. This decision has the potential to influence how FPIC is approached by other countries, including Australia.

Background

Canadian Nuclear Laboratories Ltd (CNL) sought to amend its operating licence for the Chalk River Laboratories site to modernise its nuclear waste disposal facility. The site is situated in Kebaowek First Nation’s traditional territory.

In January 2024, the Canadian Nuclear Safety Commission granted CNL’s application. Kebaowek First Nation challenged this decision, including on the ground that the Commission (as an agent of the Crown) failed to consider UNDRIP’s implications in relation to the duty to consult and accommodate the Indigenous owners.

The court’s decision

Federal Court Justice Blackhawk agreed with the Kebaowek First Nation, finding that the Commission’s failure to consider the UNDRIP as an important contextual factor in assessing the adequacy of Crown consultation was an error of law.² The court emphasised that with Canada’s enactment of UNDA, UNDRIP now serves as an interpretative lens in determining whether the relevant duty to consult and accommodate had been discharged.³

Importantly, having considered international scholarship, Justice Blackhawk held that FPIC does not grant a substantive veto right. While FPIC mandates a robust process, this does not extend to a right to a particular outcome.⁴

The court found that the consultation necessary to give effect to FPIC does, however, place ‘a heightened emphasis on the need for a deep level of consultation and negotiations geared toward a mutually accepted arrangement’⁵ and requires ‘significant robust processes tailored to consider the impacted Indigenous Nations laws, knowledge and practices’.⁶

Concerning CNL’s application, the Court found it would have been consistent with the FPIC standard for the Commission to modify the consultation process to address some of the Kebaowek’s suggestions.⁷

The Court quashed the decision and remitted the matter back to the Commission.

Implications for the Australian context

The Canadian Federal Court decision clearly articulates that FPIC under UNDRIP necessitates a deep level of consultation with First Nations peoples, but does not extend to a power of veto. This is contrary to the views of some commentators, First Nations peoples and NGOs on UNDRIP, particularly in the context of Article 29.2, which concerns the storage or disposal of hazardous waste (which was of particular relevance in the Keboawek case). Notwithstanding the divergence in views, for Australia, where ALRC discussions around implementing similar standards continue, this case provides insight into how the integration of FPIC into domestic law might be approached.

The Issues Paper released by the ALRC in November 2024 notes that suggestions for reform of the future act regime include ‘more clearly incorporating international law principles such as FPIC in the future acts regime’.⁸ In light of the Keboawek case, it will be preferrable if—as part of any such integration—the parameters of FPIC are clearly delineated, such that litigation is not required for clarification.

Stakeholders will have the opportunity to make submissions on the ALRC reforms when the Discussion Paper is released in May. The ALRC is due to provide its final report to the Attorney-General by 8 December 2025.