Super Alert – 15 May 2026: Treasury consultation on proposed changes to performance testing, Bill on providing access to super for victims of child sexual abuse

Welcome to the weekly KHQ Super Alert. This week Treasury released a consultation on proposed changes to performance testing. Parliament passed a Bill providing access to superannuation contributions for victims of child sexual abuse. Meanwhile the ATO released an administrative draft determination on the period for out-of-cycle payments.

Parliament – Bill providing access to offenders’ super passed

On 14 May, Parliament passed the Treasury Laws Amendment (The Survivors Law) Bill 2026. The Bill provides that ‘[v]ictims and survivors of child sexual abuse can apply for a court order to access additional personal or salary sacrifice superannuation contributions made by the offender where a related court order for compensation remains unpaid after 12 months’.

As referenced in our Super Alert of 27 March 2026, the key amendments introduced by the Bill are to the Taxation Administration Act 1953 (Cth) because ‘[t]o initiate the release process, victims and survivors that meet the application criteria must apply to the [ATO] to obtain the perpetrator’s superannuation information. Receipt of this information enables them to apply for a court order for the [ATO] to facilitate the release of monies from a perpetrator’s superannuation interests’.

Click here and here for details.

Treasury – Consultation on reform options for superannuation performance test released

On 8 May, Treasury released a consultation paper entitled ‘Strengthening the superannuation performance test’. Treasury is seeking feedback on a targeted set of options ‘aimed at removing unnecessary constraints on investment decisions while maintaining a robust and enduring testing framework that upholds high standards for members’. The consultation also considers whether the test ‘should be expanded to cover a broader range of products, to improve transparency and strengthen member protections’.

The reform options proposed include to:

• ‘[i]mprove the existing strategic asset allocation benchmark portfolio’ for emerging and alternative asset classes by either introducing ‘a new emerging covered asset class’ or improving ‘the existing Alternatives covered asset class’;
• ‘[r]eplace the existing strategic asset allocation benchmark portfolio with an assessment of total portfolio risk adjusted returns using a simple reference portfolio benchmark’;
• ‘[i]ntroduce a routine review to ensure the benchmarks remain fit for purpose’; and
• ‘[t]est a broader range of products by… [e]xtending the test to diversified externally directed accumulation products [and considering] the long-term path to extending the test to single sector and retirement products’.

The consultation period closes on 19 June 2026.

Click here and here for details.

ATO – Draft determination for Out-of-Cycle qualifying earnings opened for consultation

On 8 May, the ATO released a draft determination entitled ‘Draft Superannuation Guarantee (Administration) (Out-of-Cycle Qualifying Earnings) Determination 2026’ for consultation.

According to the Explanatory Statement, the instrument ‘determines the kinds of out-of-cycle qualifying earnings (such as allowances, commissions, bonuses, payments in advance and back payments), and the circumstances that must exist in respect of those kinds of qualifying earnings, for an employer to be eligible for an extended period to make ‘on-time’ superannuation guarantee (SG) contributions for those earnings’. The catalyst for the introduction of the draft determination is the impending commencement of the Payday Super reforms on 1 July 2026.

‘The extended period for out-of-cycle payments ensures that employers can maintain a regular schedule of SG contributions based on their usual pay cycle, without needing to make small ad hoc SG contributions due to out-of-cycle payments. The ability for the Commissioner to determine that certain payments are out of cycle ensures that the SG framework remains up to date as different forms of employee remuneration develop over time.’

The consultation period closes on 22 May 2026. If passed, the determination will come into effect on 1 July 2026.

Click here and here  for details.

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