Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) For the purposes of subparagraph 59 (1) (b) (iii) of the Act, the circumstances in which a discretion under the governing rules of a superannuation entity other than a self managed superannuation fund may be exercised by a person other than the trustee are:
(a) where, after the exercise of the discretion:
(i) the fund (if a defined benefit fund) would not become technically insolvent within the meaning of subregulation 9.06 (3); or
(ii) the fund (if an accumulation fund) would not become technically insolvent within the meaning of subregulation 9.35 (3); and
(b) where the discretion could have been exercised by the trustee without contravening the Act (other than section 55) or these regulations; and
(c) where the discretion qualifies under subregulation (2).
(2) A discretion qualifies if:
(a) the contributions of the employer‑sponsor to the fund include contributions that are not mandated employer contributions (within the meaning of Part 5) and the discretion relates solely to either or both of the following:
(i) those non‑mandated employer contributions; or
(ii) benefits related to those non‑mandated employer contributions; or
(b) whether or not paragraph (a) applies -- the discretion relates solely to one or more of the following:
(i) the admission of new members to the fund; or
(ii) the category of members into which a new member or existing member is to be placed; or
(iii) allowing a person to become an employer‑sponsor of the fund; or
(iv) the termination of the fund; or
(v) the appointment of a trustee to an entity that does not have a trustee.