An Act to make provision for the supervision of certain entities
engaged in the superannuation industry, and for related purposes
Part 1—Preliminary
Division 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Superannuation
Industry (Supervision) Act 1993.
2
Commencement [see Note 1]
(1) Subject to this section, Parts 1, 2,
21, 27, 28, 29, 30, 31 and 32 commence on the day on which this Act receives
the Royal Assent.
(2) Part 1 (in so far as it relates to
section 117) and section 117 are taken to have commenced on 21 October 1992.
(3) Parts 18, 19, 20, 23 and 24 and
section 342 commence on 1 July 1994.
(4) The remaining provisions commence on 1 December
1993, but do not apply to a fund, scheme or trust in relation to a year of
income of the fund, scheme or trust earlier than the 1994‑95 year of income.
3
Object of Act
Supervision of certain superannuation entities
(1) The object of this Act is to make
provision for the prudent management of certain superannuation funds, approved
deposit funds and pooled superannuation trusts and for their supervision by
APRA, ASIC and the Commissioner of Taxation.
Basis for supervision
(2) The basis for supervision is that those
funds and trusts are subject to regulation under the Commonwealth’s powers with
respect to corporations or pensions (for example, because the trustee is a
corporation). In return, the supervised funds and trusts may become eligible
for concessional taxation treatment.
Whole industry not covered
(3) The Act does not regulate other entities
engaged in the superannuation industry.
4
Summary of provisions
The Act contains provisions dealing with
the following matters:
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Part
No.
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Matter dealt with
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1
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interpretation
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|
2A
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licensing of trustees and groups
of individual trustees
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|
2B
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registrable superannuation
entities
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3
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operating standards for funds
and trusts
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4
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accounts, audit and reporting
obligations for superannuation entities
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|
5
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notices about complying fund
status
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6
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governing rules of funds and
trusts
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7
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rules applying only to regulated
superannuation funds
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8
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in‑house asset rules applying to
regulated superannuation funds
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9
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equal representation of
employers and members in relation to employer‑sponsored funds
|
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10
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rules applying only to approved
deposit funds
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11
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rules applying only to pooled
superannuation trusts
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12
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statutory duties of trustees of superannuation
entities
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14
|
other provisions relating to
funds and trusts
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15
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standards for trustees,
custodians and investment managers of superannuation entities
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16
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actuaries and auditors of
superannuation entities
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17
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suspension or removal of trustees
of superannuation entities
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18
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amalgamation of funds
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19
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rules about dealing with
superannuation interests in public offer entities
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21
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civil and criminal consequences
of serious breaches of the Act
|
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23
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financial assistance to funds
that suffer loss as a result of fraud or theft
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24
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facility to pay benefits to
eligible rollover funds
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24A
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transitional provisions relating
to pre‑1 July 1995 automatic rollovers of benefits between funds
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25
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monitoring and investigating
superannuation entities
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25A
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tax file numbers
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26
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offences relating to statements
and records
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27
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powers of courts
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28
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judicial and other proceedings
under the Act
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29
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exemption and modification
provisions
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30
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miscellaneous provisions
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32
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additional transitional provisions
relating to tax file numbers
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6
General administration of Act
(1) Subject to subsections (3) and (4):
(a) APRA has the general
administration of the following provisions, to the extent that administration
of the provisions is not conferred on the Commissioner of Taxation by paragraph (e)
or (g):
(i) Parts 2A and 2B;
(ii) Parts 4 to 5;
(iii) section 60A;
(iv) Part 7 (other than
sections 64A and 68A);
(v) Parts 8 to 11;
(vi) Part 12 (other
than sections 101, 103 and 105);
(vii) Part 14 to 16;
(viii) Part 17;
(ix) Part 21;
(x) Parts 23 to 24A;
(xi) Division 3 of Part 25;
(xii) Part 25A (except
Division 1);
(xiii) Part 32; and
(b) APRA also has the general
administration of Parts 3 and 6 (other than section 60A) and section 105
to the extent that that administration is not conferred on ASIC by paragraph (d)
or on the Commissioner of Taxation by paragraph (f); and
(c) ASIC has the general
administration of:
(i) sections 64A and
68A; and
(ii) sections 101 and
103; and
(iii) Part 19;
to the extent that
administration is not conferred on the Commissioner of Taxation by paragraph (e);
and
(d) ASIC also has the general
administration of Parts 3 and 6 (other than section 60A) and section 105
to the extent to which they relate to:
(i) the keeping of reports
to members of, or beneficiaries in, funds; or
(ii) disclosure of
information to members of, or beneficiaries in, funds; or
(iii) disclosure of
information about funds (including disclosure of information to ASIC but not
including disclosure of information to APRA); or
(iv) any other matter
prescribed by the regulations for the purposes of this paragraph; and
(e) the Commissioner of Taxation has
the general administration of the following provisions to the extent that they
relate to self managed superannuation funds:
(i) Parts 4, 5, 7
(other than section 68A) and 8;
(ii) Part 12 (other
than section 105);
(iii) Parts 13 and 14;
(iv) Part 15;
(v) Parts 16, 17
(other than section 140), 21 and 24, and Divisions 2, 3, 4 and 5 of
Part 25A; and
(f) the Commissioner of Taxation also
has the general administration of Parts 3 and 6 (other than section 60A)
and section 105:
(i) to the extent that
they relate to self managed superannuation funds; and
(ii) to the extent that
administration is not conferred on ASIC by paragraph (d); and
(g) the Commissioner of Taxation also
has the general administration of Divisions 1 and 3A of Part 25A.
Note: An effect of paragraphs (e), (f) and (g)
is that people who acquire information under those provisions (to the extent
that they relate to self‑managed superannuation funds) are subject to the
confidentiality obligations and exceptions in Division 355 in
Schedule 1 to the Taxation Administration Act 1953.
(2) Powers and duties are also conferred by Parts 1,
25 (other than Division 3) and 26 27, 28, 29 (other than section 332)
and 30 on:
(a) APRA for the purposes of APRA’s
administration of the provisions it administers; and
(b) ASIC
for the purposes of ASIC’s administration of the provisions it administers.
Note: Generally neither APRA nor ASIC are referred
to in these provisions, Regulator is used instead. See the definition of Regulator
in section 10.
(2A) Powers and duties are also conferred by
Parts 1, 25 (other than Division 3), 26 to 28, 29 (other than section 332)
and 30 (other than section 342) on the Commissioner of Taxation for the
purposes of the administration of the provisions he or she administers.
Note: Generally, the Commissioner of Taxation is not
referred to in these provisions, Regulator is used instead.
(2B) Powers and duties are also conferred on
APRA by section 332 for the purposes of the administration of provisions
administered by APRA or by the Commissioner of Taxation.
(3) The Minister may give APRA or ASIC
directions about the performance or exercise of its functions or powers under
this Act.
(4) Despite subsection (1):
(a) if an entity is not a self managed
superannuation fund on the last day of a year of income, APRA has (subject to
any later application of this subsection) the general administration of
subsections 40(1) and (2), in relation to the entity, in respect of the
following:
(i) the doing of anything
after the end of that year of income, in relation to that year of income;
(ii) the doing of anything
after the end of that year of income, in relation to any previous year of
income; and
(b) if an entity is a self managed
superannuation fund on the last day of a year of income, the Commissioner of
Taxation has (subject to any later application of this subsection) the general
administration of subsections 40(1) and (2), in relation to the entity, in
respect of the following:
(i) the doing of anything
after the end of that year of income, in relation to that year of income;
(ii) the doing of anything
after the end of that year of income, in relation any previous year of income;
and
(c) the following rules apply in
relation to the general administration of subparagraphs 42(1AA)(b)(ii) and
(c)(ii), subsection 42(1AC), subparagraphs 42A(3)(c)(ii) and (d)(ii) and subsection
42A(4):
(i) subject to subparagraph (ii),
APRA has the general administration of those provisions;
(ii) if another person or
body is specified in regulations under subsection 19(4) in respect of a class
of superannuation funds, that person or body has the general administration of
those provisions to the extent that they relate to funds belonging to that
class.
7
Application of Act not to be excluded or modified
This Act applies to a superannuation
entity despite any provision in the governing rules of the entity, including
any provision that purports to substitute, or has the effect of substituting,
the provisions of the law of a State or Territory or of a foreign country for
all or any of the provisions of this Act.
8 Act
extends to external Territories
This Act extends to all the external
Territories.
9
Crown to be bound
(1) This Act binds the Crown in all its
capacities.
(2) The Crown is not liable to be prosecuted
for an offence against, or arising out of, this Act.
9A
Application of the Criminal Code
Chapter 2 of the Criminal Code (except
Part 2.5) applies to all offences against this Act.
Division 2—Interpretation
10
Definitions
(1) In this Act, unless the contrary
intention appears:
ABN has the meaning given by section 41
of the A New Tax System (Australian Business Number) Act 1999.
acquirable asset has the meaning given by
section 67A.
actuary means a person who is a Fellow or an
Accredited Member of the Institute of Actuaries of Australia.
ADI (authorised deposit‑taking institution)
means:
(a) a body corporate that is an ADI
for the purposes of the Banking Act 1959; or
(b) a State bank.
adopted child, in relation to a person, means
a person adopted by the first‑mentioned person:
(a) under the law of a State or
Territory relating to the adoption of children; or
(b) under the law of any other place
relating to the adoption of children, if the validity of the adoption would be
recognised under the law of any State or Territory.
amend, in relation to the governing rules of
a superannuation entity, includes the insertion of a provision in, or the
omission of a provision from, those rules.
annuity includes a benefit provided by a life
insurance company or a registered organisation, if the benefit is taken, under
the regulations, to be an annuity for the purposes of this Act.
approved auditor means a person included in a
class of persons specified in regulations made for the purposes of this
definition, but does not include:
(a) a person who is disqualified from
being or acting as an auditor of all superannuation entities under
section 130D; or
(b) a person in respect of whom a
disqualification order is in force under section 131.
approved deposit fund
means a fund that:
(a) is an indefinitely continuing
fund; and
(b) is maintained by an RSE licensee
that is a constitutional corporation; and
(c) is maintained solely for approved
purposes.
approved form has the meaning given by
section 11A.
approved guarantee has the meaning given by
section 11E.
approved purposes, in relation to a fund,
means:
(a) the purpose of receiving on
deposit:
(i) amounts of roll‑over
superannuation benefits (within the meaning of the Income Tax Assessment Act
1997); and
(ia) amounts of directed
termination payments (within the meaning of section 82‑10F of the Income
Tax (Transitional Provisions) Act 1997); and
(ii) amounts paid under
Part 24 of this Act; and
(iii) amounts paid under
section 65 of the Superannuation Guarantee (Administration) Act 1992;
and
(b) the purpose of dealing with such
amounts, in accordance with the rules of the fund, in any way calculated
directly or indirectly to enhance the value of, or render profitable, property
of the fund; and
(c) subject to any inconsistent
requirement in the standards from time to time applicable to the fund under
section 32, the purpose of paying to beneficiaries, or to the legal
personal representatives of beneficiaries, upon request, amounts equal to the
beneficiary’s interest in the fund; and
(d) such other purposes (if any) as
APRA approves in writing.
APRA means the Australian Prudential
Regulation Authority.
ASIC means the Australian Securities and
Investments Commission.
asset means any form of property and, to
avoid doubt, includes money (whether Australian currency or currency of another
country).
associate has the meaning given by section 12.
Australian court
means:
(a) the High Court; or
(b) a court created by the Parliament;
or
(c) a court of a State or Territory.
authorised person means a person authorised
by the Regulator under section 298A for the purposes of the provision in
which the expression occurs.
beneficiary, in relation to a fund, scheme or
trust, means a person (whether described in the governing rules as a member, a
depositor or otherwise) who has a beneficial interest in the fund, scheme or
trust and includes, in relation to a superannuation fund, a member of the fund
despite the express references in this Act to members of such funds.
books includes:
(a) any record; or
(b) any accounts or accounting
records, however compiled, recorded or stored; or
(c) a document.
business day means a day that is not a
Saturday, a Sunday or a public holiday in the place concerned.
child, in relation to a person, includes:
(a) an adopted child, a stepchild or
an ex‑nuptial child of the person; and
(b) a child of the person’s spouse;
and
(c) someone who is a child of the
person within the meaning of the Family Law Act 1975.
civil penalty order means a declaration or
order made under section 196.
civil penalty provision has the meaning given
by section 193.
class, in relation to an RSE licensee, means
(except in subsections 29E(7) and (8)) a class of RSE licence provided for
under subsection 29B(2) or (3), or under regulations made for the purposes of
subsection 29B(4).
Commissioner means the Insurance and
Superannuation Commissioner appointed under the Insurance and Superannuation
Commissioner Act 1987, or a person for the time being acting as Insurance
and Superannuation Commissioner under that Act.
constitutional
corporation means a body corporate that is:
(a) a trading corporation formed
within the limits of the Commonwealth (within the meaning of paragraph 51(xx)
of the Constitution); or
(b) a financial corporation formed
within the limits of the Commonwealth (within the meaning of paragraph 51(xx)
of the Constitution).
corporate trustee, in relation to a fund,
scheme or trust, means a body corporate that is a trustee of the fund, scheme
or trust.
Corporations Law means the Corporations Law
set out in the Corporations Act 1989.
court means any court, when exercising
jurisdiction under this Act.
Court means the Federal Court of Australia or
the Supreme Court of a State or a Territory.
custodian, in relation to a superannuation
entity, means a person (other than a trustee of the entity) who, under a
contract with a trustee or an investment manager of the entity, performs
custodial functions in relation to any of the assets of the entity.
data processing device means any article or
material (for example, a disc) from which information is capable of being
reproduced with or without the aid of any other article or device.
deed includes an instrument having the effect
of a deed.
defined benefit fund has (except in Division 3A
of Part 8 and in Part 23) the meaning given by the regulations.
defined benefit member has (except in
Division 3A of Part 8 and in Part 23) the meaning given by the
regulations.
dependant, in relation to a person, includes
the spouse of the person, any child of the person and any person with whom the
person has an interdependency relationship.
director, in relation to a body corporate,
has the same meaning as in the Corporations Act 2001.
disclose, in relation to information, means
give, reveal or communicate in any way.
employee has the meaning given by
section 15A.
employer has the meaning given by
section 15A.
employer representative, in relation to a
group of trustees of a fund, a policy committee of a fund or the board of
directors of a corporate trustee of a fund, means a member of the group,
committee or board, as the case may be, nominated by:
(a) the employer or employers of the
members of the fund; or
(b) an organisation representing the
interests of that employer or those employers.
employer‑sponsor has the meaning given by
subsection 16(1).
employer‑sponsored fund has the meaning given
by subsection 16(3).
entity means any of the following:
(a) an individual;
(b) a body corporate;
(c) a partnership;
(d) a trust.
excluded approved deposit fund means an
approved deposit fund:
(a) in which there is only one beneficiary;
and
(b) that satisfies such other
conditions (if any) as are specified in the regulations.
excluded instalment trust, of a
superannuation fund, means a trust:
(a) that arises because a trustee or
investment manager of the superannuation fund makes an investment under which a
listed security (the underlying security) is held in trust until
the purchase price of the underlying security is fully paid; and
(b) where the underlying security, and
property derived from the underlying security, is the only trust property; and
(c) where an investment in the
underlying security held in trust would not be an in‑house asset of the
superannuation fund.
executive officer, in relation to a body
corporate, means a person, by whatever name called and whether or not a
director of the body, who is concerned, or takes part, in the management of the
body.
exempt public sector superannuation scheme
means a public sector superannuation scheme that is specified in regulations
made for the purposes of this definition.
expert, in relation to a matter, means a
person whose profession or reputation gives authority to a statement made by
him or her in relation to that matter.
financial services licensee has the meaning
given by Chapter 7 of the Corporations Act 2001.
function includes duty.
governing rules, in relation to a fund,
scheme or trust, means:
(a) any rules contained in a trust
instrument, other document or legislation, or combination of them; or
(b) any unwritten rules;
governing the establishment or operation of the fund,
scheme or trust.
group of individual trustees means a group of
trustees each of whom is an individual trustee.
group of trustees, in relation to a fund,
scheme or trust, means a board, committee or other group of trustees of the
fund, scheme or trust.
half‑year means a period of 6 months ending
on 30 June or 31 December.
Income Tax Assessment Act means the Income
Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
independent director, in relation to a
corporate trustee of a fund, means a director of the corporate trustee who:
(a) is not a member of the fund; and
(b) is neither an employer‑sponsor of
the fund nor an associate of such an employer‑sponsor; and
(c) is neither an employee of an
employer‑sponsor of the fund nor an employee of an associate of such an
employer‑sponsor; and
(d) is not, in any capacity, a
representative of a trade union, or other organisation, representing the
interests of one or more members of the fund; and
(e) is not, in any capacity, a
representative of an organisation representing the interests of one or more
employer‑sponsors of the fund.
Note: Subsection (2) sets out the circumstances
in which a director of a corporate trustee of a fund is not taken to be an
associate of an employer‑sponsor of the fund.
independent trustee, in relation to a fund,
means a trustee of the fund who:
(a) is not a member of the fund; and
(b) is neither an employer‑sponsor of
the fund nor an associate of such an employer‑sponsor; and
(c) is neither an employee of an
employer‑sponsor of the fund nor an employee of an associate of such an
employer‑sponsor; and
(d) is not, in any capacity, a
representative of a trade union, or other organisation, representing the
interests of one or more members of the fund; and
(e) is not, in any capacity, a
representative of an organisation representing the interests of one or more
employer‑sponsors of the fund.
individual trustee, in relation to a fund,
scheme or trust, means an individual who is a trustee of the fund, scheme or
trust.
insolvent under administration means a person
who:
(a) under the Bankruptcy Act 1966 or
the law of an external Territory, is a bankrupt in respect of a bankruptcy from
which the person has not been discharged; or
(b) under the law of a country other
than Australia or the law of an external Territory, has the status of an
undischarged bankrupt;
and includes:
(c) a person any of whose property is
subject to control under:
(i) section 50 or 188
of the Bankruptcy Act 1966; or
(ii) a corresponding
provision of the law of an external Territory or the law of a foreign country;
or
(d) a person who has executed a
personal insolvency agreement under:
(i) Part X of the Bankruptcy
Act 1966; or
(ii) the corresponding
provisions of the law of an external Territory or the law of a foreign country;
if a certificate has not been
given under section 232 of that Act or the corresponding provision of the
law of the external Territory or foreign country, as the case may be, in
respect of the agreement.
inspector has the meaning given by section 265.
instalment receipt means an investment under
which:
(a) a listed security is held in a
trust until the purchase price of the security is fully paid; and
(b) the security, and property derived
from the security, is the only trust property.
interdependency relationship has the meaning
given by section 10A.
invest means:
(a) apply assets in any way; or
(b) make a contract;
for the purpose of gaining interest, income, profit or
gain.
investment manager means a person appointed
by a trustee of a fund or trust to invest on behalf of the trustee, or the
trustees, of the fund or trust.
involved, in relation to a contravention, has
the meaning given by section 17.
lawyer means a duly qualified legal
practitioner and, in relation to a person, means such a practitioner acting for
the person.
lease arrangement means any agreement,
arrangement or understanding in the nature of a lease (other than a lease)
between a trustee of a superannuation fund and another person, under which the
other person is to use, or control the use of, property owned by the fund,
whether or not the agreement, arrangement or understanding is enforceable, or
intended to be enforceable, by legal proceedings.
legal personal representative means the
executor of the will or administrator of the estate of a deceased person, the
trustee of the estate of a person under a legal disability or a person who
holds an enduring power of attorney granted by a person.
licensing transition period means the period:
(a) starting on the commencement of
Part 1 of Schedule 1 to the Superannuation Safety Amendment Act
2004; and
(b) ending immediately before the
commencement of Part 2 of that Schedule.
life insurance company
means:
(a) a body corporate registered under section 21
of the Life Insurance Act 1995; or
(b) a public authority:
(i) that is constituted by
a law of a State or Territory; and
(ii) that carries on life
insurance business within the meaning of section 11 of that Act.
listed security has the meaning given by
subsection 66(5).
loan includes the provision of credit or any
other form of financial accommodation, whether or not enforceable, or intended
to be enforceable, by legal proceedings.
lodge means lodge with the Regulator.
market value, in relation to an asset, means
the amount that a willing buyer of the asset could reasonably be expected to
pay to acquire the asset from a willing seller if the following assumptions
were made:
(a) that the buyer and the seller
dealt with each other at arm’s length in relation to the sale;
(b) that the sale occurred after
proper marketing of the asset;
(c) that the buyer and the seller
acted knowledgeably and prudentially in relation to the sale.
member has a meaning affected by section 15B.
member of staff means:
(a) in relation to APRA—a person who
is an APRA staff member within the meaning of the Australian Prudential
Regulation Authority Act 1998; and
(b) in relation to ASIC—a person who
is a staff member within the meaning of the Australian Securities and
Investments Commission Act 2001; and
(c) in relation to the Commissioner of
Taxation—a taxation officer.
member representative, in relation to a group
of trustees of a fund, a policy committee of a fund or the board of directors
of a corporate trustee of a fund, means a member of the group, committee or
board, as the case may be, nominated by:
(a) the members of the fund; or
(b) a trade union, or other
organisation, representing the interests of those members.
modifications includes additions, omissions
and substitutions.
occurrence of an event includes the coming
into existence of a state of affairs.
old‑age pensions has the same meaning as in
paragraph 51(xxiii) of the Constitution.
Part 8 associate has the meaning given
by Subdivision B of Division 1 of Part 8.
pension, except in the expression old‑age
pension, includes a benefit provided by a fund, if the benefit is
taken, under the regulations, to be a pension for the purposes of this Act.
policy committee, in relation to a regulated
superannuation fund, means a board, committee or other body that:
(a) advises a trustee of the fund
about such matters as are specified in the regulations; and
(b) is established by or under the
governing rules of the fund.
pooled superannuation trust means a unit
trust:
(a) the trustee of which is a
constitutional corporation; and
(b) that, under the regulations, is a
unit trust to which this definition applies.
premises includes:
(a) a structure, building, aircraft,
vehicle or vessel; and
(b) any land or place (whether
enclosed or built on or not); and
(c) a part of a structure, building,
aircraft, vehicle or vessel or of such a place.
private sector fund means a superannuation
fund covered by paragraph (a) of the definition of superannuation
fund, other than a public sector fund.
procure includes cause.
produce includes permit access to.
public offer entity
means:
(a) a public offer superannuation
fund; or
(b) an approved deposit fund that is
not an excluded approved deposit fund; or
(c) a pooled superannuation trust.
public offer entity licence means an RSE
licence of a class provided for under subsection 29B(2).
public offer superannuation fund has the
meaning given by section 18.
public sector fund means a superannuation
fund that is:
(a) covered by paragraph (a) of
the definition of superannuation fund; and
(b) part of a public sector
superannuation scheme.
public sector superannuation scheme means a
scheme for the payment of superannuation, retirement or death benefits, where
the scheme is established:
(a) by or under a law of the Commonwealth
or of a State or Territory; or
(b) under the authority of:
(i) the Commonwealth or
the government of a State or Territory; or
(ii) a municipal
corporation, another local governing body or a public authority constituted by
or under a law of the Commonwealth or of a State or Territory.
rectify, in
relation to a contravention of this Act or the regulations that has occurred in
relation to a superannuation entity, includes put in operation managerial or
administrative arrangements that could reasonably be expected to ensure that
there are no further contraventions of a similar kind.
redeem, in relation to an interest in an
approved deposit fund, includes pay an amount equal to the interest pursuant to
a covenant of a kind referred to in section 53 that is contained, or taken
to be contained, in the governing rules of the fund.
registered
organisation means:
(a) an association registered under a
law of a State or Territory as a trade union; or
(b) a society registered under a law
of a State or Territory providing for the registration of friendly or benefit
societies; or
(c) an association of employees that
is registered as an organisation, or recognised, under the Fair Work
(Registered Organisations) Act 2009.
registrable superannuation entity means:
(a) a regulated superannuation fund;
or
(b) an approved deposit fund; or
(c) a pooled superannuation trust;
but does not include a self managed superannuation fund.
regulated document,
in relation to a public offer entity, means a document:
(a) issued, or authorised to be
issued, by the trustee of the entity; and
(b) that the trustee knows, or ought
reasonably to know (having regard to the trustee’s abilities, experience,
qualifications and other attributes), may influence a person’s decision:
(i) whether to apply to
have a superannuation interest in the entity issued to a person; or
(ii) whether to apply to
become a standard employer‑sponsor of the entity.
regulated superannuation fund has the meaning
given by section 19.
Regulator
means:
(a) APRA if the provision in which it
occurs is, or is being applied for the purposes of, a provision that is
administered by APRA; and
(b) ASIC if the provision in which it
occurs is, or is being applied for the purposes of, a provision that is
administered by ASIC; and
(c) the Commissioner of Taxation if
the provision in which it occurs is, or is being applied for the purposes of, a
provision that is administered by the Commissioner of Taxation.
related, in relation to bodies corporate, has
the meaning given by section 20.
related party, of a superannuation fund,
means any of the following:
(a) a member of the fund;
(b) a standard employer‑sponsor of the
fund;
(c) a Part 8 associate of an
entity referred to in paragraph (a) or (b).
related trust, of a superannuation fund,
means a trust that a member or a standard employer‑sponsor of the fund controls
(within the meaning of section 70E), other than an excluded instalment
trust of the fund.
relative of an individual means the
following:
(a) a parent, grandparent, brother,
sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the
individual or of his or her spouse;
(b) a spouse of the individual or of
any other individual referred to in paragraph (a).
Note: Subsection (5) may be relevant to
determining relationships for the purposes of paragraph (a) of the
definition of relative.
relevant person, in relation to a fund or
trust, means:
(a) if the trustee or an investment
manager of the fund or trust is or includes an individual—that individual; or
(b) if the trustee or an investment
manager of the fund or trust is or includes a body corporate—a responsible
officer of that body corporate; or
(c) an auditor of the fund or trust;
or
(d) an actuary of the fund or trust;
or
(e) a person who is a custodian in
relation to the fund or trust.
resident approved deposit fund has the
meaning given by section 20A.
resident regulated superannuation fund means
a regulated superannuation fund that is an Australian superannuation fund
within the meaning of the Income Tax Assessment Act 1997.
responsible officer, in relation to a body
corporate, means:
(a) a director of the body; or
(b) a secretary of the body; or
(c) an executive officer of the body.
reviewable decision means:
(a) a decision of APRA under
subsection 18(6) or (7) to make a declaration; or
(aa) a decision of APRA under
subsection 18(7A) to make a declaration under subsection 18(7) subject to
conditions; or
(ab) a decision of APRA under subsection
18(7C) to revoke a declaration that a superannuation fund is not a public offer
superannuation fund or;
(b) a decision of APRA under
subsection 18(10) to revoke a declaration; or
(dd) a decision of APRA under subsection
29CA(2) to treat an application for an RSE licence as having been withdrawn; or
(de) a decision of APRA under subsection
29D(2) refusing an application for an RSE licence; or
(df) a decision of APRA under
subsection 29EA(1) to impose additional conditions on an RSE licence; or
(dg) a decision of APRA under subsection
29FA(2) to treat an application for variation of an RSE licence so that it is
an RSE licence of a different class as having been withdrawn; or
(dh) a decision of APRA under subsection
29FA(2) to treat an application for variation or revocation of a condition imposed
on an RSE licence as having been withdrawn; or
(di) a decision of APRA to refuse to
vary an RSE licence under subsection 29FC(1) so that it is an RSE licence of a
different class; or
(dj) a decision of APRA to refuse to
vary or revoke under subsection 29FC(1) any conditions imposed on an RSE
licence; or
(dk) a decision of APRA under subsection
29FD(1) to vary or revoke any conditions imposed on an RSE licence; or
(dl) a decision of APRA under
subsection 29G(1) to cancel an RSE licence; or
(dla) a decision of APRA to give a
direction under subsection 29HB(3); or
(dm) a decision of APRA under subsection
29M(2) refusing an application for registration of a registrable superannuation
entity; or
(dn) a decision of APRA under subsection
29N(2) to cancel the registration of a registrable superannuation entity; or
(do) a decision of APRA to give a
direction under subsection 29PB(3); or
(dp) a decision of the Regulator
refusing to give an approval under paragraph 35A(2)(b); or
(dq) a decision of the Regulator to give
such an approval subject to conditions under subsection 35A(2A); or
(e) a decision of the Regulator to
give a notice under section 40; or
(f) a decision of the Regulator
refusing to give a notice under section 40; or
(fa) a decision of the Regulator under
subsection 42(1AA) or (1AC) or paragraph 50(1)(c); or
(fb) a refusal of the Regulator to give
an approval under subparagraph 62(1)(b)(v); or
(g) a decision of the Regulator to
give a direction under section 63; or
(h) a decision of the Regulator
refusing to revoke a direction under section 63; or
(ha) a decision of the Regulator to make
a determination under subsection 70A(1); or
(hb) a decision of the Regulator
refusing to revoke a determination under subsection 70A(1); or
(i) a decision of the Regulator
refusing to make a determination under paragraph 71(1)(e); or
(j) a decision of the Regulator to
revoke a determination under paragraph 71(1)(e); or
(k) a decision of the Regulator to
make a determination under subsection 71(4); or
(l) a decision of the Regulator
refusing to revoke a determination under subsection 71(4); or
(m) a decision of APRA under section 92
refusing to grant an arrangement approval; or
(n) a decision of APRA under section 92
revoking an arrangement approval; or
(na) a decision of APRA under subsection
93A(2) or (3) to approve or not approve a higher percentage; or
(nb) a decision of APRA under subsection
93A(4) to specify conditions to which an approval is subject; or
(nc) a decision of APRA under subsection
93A(5) to vary an approval; or
(o) a decision of APRA under
subsection 95(2) refusing to approve a borrowing; or
(p) a decision of APRA under
subsection 117(6) refusing to waive a requirement; or
(q) a decision of APRA under
subparagraph 123(2)(b)(ii) or (3)(c)(ii); or
(qa) a decision of the Regulator under
subsection 126A(1), (2) or (3) to disqualify an individual; or
(qb) a decision of the Regulator under
subsection 126A(5) refusing to revoke the disqualification of an individual; or
(r) a decision of the Regulator under
subsection 126B(4) refusing to allow a longer period than 14 days to make an
application for waiver; or
(ra) a decision of the Regulator under
subsection 126D(3) refusing to make a declaration waiving an applicant’s status
as a disqualified person; or
(rb) a decision of the Regulator under
subsection 126F(3) refusing to waive, in whole or in part, the requirement to
pay an amount under subsection 126F(2); or
(s) a decision of the Regulator to
make a disqualification order under section 131; or
(t) a decision of the Regulator
refusing to revoke a disqualification order under section 131; or
(ta) a decision of APRA to give a
direction under section 131AA, other than a direction on the ground
mentioned in paragraph 133AA(2)(a); or
(taa) a decision of the Regulator to
suspend or remove a trustee of a superannuation entity under section 133;
or
(u) a decision of the Regulator under
section 141; or
(z) a decision of the Regulator under
section 328 to make an exemption that applies to a particular person or a
particular group of individual trustees; or
(zb) a decision of the Regulator under
section 332 to make a declaration that applies to a particular person or a
particular group of individual trustees; or
(zd) a decision of the Regulator under
section 335 to vary or revoke an exemption or declaration that applies to
a particular person or a particular group of individual trustees; or
(ze) a decision of APRA refusing to
give a notice under subsection 342(2) in relation to a fund; or
(zf) a decision of APRA to give a
notice under subsection 342(6) in relation to a fund; or
(zg) a decision of the Regulator under
subsection 347A(9).
RSA has the same meaning as in the Retirement
Savings Accounts Act 1997.
RSA provider has the same meaning as in the Retirement
Savings Accounts Act 1997.
RSE licence means a licence granted under
section 29D.
RSE licensee means a constitutional
corporation, body corporate, or group of individual trustees, that holds an RSE
licence granted under section 29D.
RSE licensee law means:
(a) this Act or the regulations; and
(b) the Financial Sector
(Collection of Data) Act 2001; and
(c) the Financial Institutions
Supervisory Levies Collection Act 1998; and
(d) the provisions of the Corporations
Act 2001 listed in a subparagraph of paragraph (b) of the definition
of regulatory provision in section 38A of this Act or
specified in regulations made for the purposes of subparagraph (b)(xvi) of
that definition, as applying in relation to superannuation interests; and
(e) any other provisions of any other
law of the Commonwealth specified in regulations made for the purposes of this
paragraph.
self managed superannuation fund has the
meaning given by section 17A.
Note: Subsection (4) of this section extends
the meaning of self managed superannuation fund for the purposes
of sections 6, 42 and 42A.
signed, in relation to a body corporate,
means executed by or on behalf of the body corporate in a way that is effective
in law and that binds the body corporate.
spouse of a person includes:
(a) another person (whether of the
same sex or a different sex) with whom the person is in a relationship that is
registered under a law of a State or Territory prescribed for the purposes of
section 22B of the Acts Interpretation Act 1901 as a kind of
relationship prescribed for the purposes of that section; and
(b) another person who, although not
legally married to the person, lives with the person on a genuine domestic
basis in a relationship as a couple.
standard employer‑sponsor has the meaning
given by subsection 16(2).
standard employer‑sponsored fund has the
meaning given by subsection 16(4).
standard employer‑sponsored member has the
meaning given by subsection 16(5).
Superannuation Complaints Tribunal means the
Superannuation Complaints Tribunal established by the Superannuation
(Resolution of Complaints) Act 1993.
superannuation entity means:
(a) a regulated superannuation fund;
or
(b) an approved deposit fund; or
(c) a pooled superannuation trust.
superannuation entity affected by a reviewable
decision, in relation to a reviewable decision, means the
superannuation entity in relation to which the decision was made.
superannuation fund means:
(a) a fund that:
(i) is an indefinitely
continuing fund; and
(ii) is a provident,
benefit, superannuation or retirement fund; or
(b) a public sector superannuation
scheme.
superannuation interest means a beneficial
interest in a superannuation entity.
taxation officer means:
(a) a Second Commissioner of Taxation;
or
(b) a Deputy Commissioner of Taxation;
or
(c) a person engaged under the Public
Service Act 1999, or an officer or employee of an authority of the
Commonwealth, performing duties in the Australian Taxation Office; or
(d) a person engaged to provide
services relating to the Australian Taxation Office.
trustee, in relation to a fund, scheme or
trust, means:
(a) if there is a trustee (within the
ordinary meaning of that expression) of the fund, scheme or trust—the trustee;
or
(b) in any other case—the person who
manages the fund, scheme or trust.
unit trust means:
(a) a unit trust within the meaning of
Division 6C of Part III of the Income Tax Assessment Act 1936
(whether established by a law of the Commonwealth or of a State or Territory,
by a government agency or otherwise); or
(b) the trustee of such a trust;
as appropriate.
value means market value, and includes
amount.
year of income, in relation to a fund, scheme
or trust, means a period that is, for the purposes of the Income Tax Assessment
Act, a year of income of the fund scheme, or trust (subsection 6(2A) of that
Act applies accordingly).
(2) For the purposes of paragraph (b) of
the definition of independent director in subsection (1),
a director of a corporate trustee of a fund that is also an employer‑sponsor of
the fund is not taken to be an associate of that employer‑sponsor by reason
only of being such a director.
(3) Without limiting the meaning of the
expression member in this Act, that expression, in relation to a
self managed superannuation fund, includes a person:
(a) who receives a pension from the
fund; or
(b) who has deferred his or her
entitlement to receive a benefit from the fund.
(4) Treat an entity that is a superannuation
fund as a self managed superannuation fund for the purposes of sections 6,
42 and 42A if:
(a) it has ceased being a self managed
superannuation fund for the purposes of the rest of this Act; and
(b) the trustee of the fund is not an
RSE licensee.
(5) For the purposes of paragraph (a) of
the definition of relative in subsection (1), if one
individual is the child of another individual because of the definition of child
in subsection (1), relationships traced to, from or through the individual
are to be determined in the same way as if the individual were the natural
child of the other individual.
10A
Interdependency relationship
(1) Subject to subsection (3),
for the purposes of this Act, 2 persons (whether or not related by family) have
an interdependency relationship if:
(a) they have a close personal
relationship; and
(b) they live together; and
(c) one or each of them provides the
other with financial support; and
(d) one or each of them provides the
other with domestic support and personal care.
(2) Subject to
subsection (3), for the purposes of this Act, if:
(a) 2 persons (whether or not related
by family) satisfy the requirement of paragraph (1)(a); and
(b) they do not satisfy the other
requirements of an interdependency relationship under subsection (1); and
(c) the reason they do not satisfy the
other requirements is that either or both of them suffer from a physical,
intellectual or psychiatric disability;
they have an interdependency relationship.
(3) The
regulations may specify:
(a) matters that are, or are not, to
be taken into account in determining under subsection (1) or (2) whether 2
persons have an interdependency relationship; and
(b) circumstances in which 2 persons
have, or do not have, an interdependency relationship.
11
Approvals, determinations etc. by Regulator
If:
(a) a provision of this Act refers to
an approval given, determination made or other act or thing done by the
Regulator; and
(b) there
is no other provision of this Act expressly authorising the Regulator to give
the approval, make the determination or do the act or thing;
the Regulator is authorised to give the approval, make the
determination or do the act or thing.
11A
Approved forms
(1) In this Act, a reference to an approved
form is a reference to a form approved by the Regulator, in writing,
for the purposes of the provision in which the expression appears.
(2) An approved form may require particular
information to be included in the completed form.
(3) An approved form may do either or both of
the following:
(a) require or permit the form to be
attached to, or to form part of, another document;
(b) require or permit the form to be
given on a specified kind of data processing device or by specified electronic
transmission, in accordance with specified software or other requirements.
(4) An approved form may require the form to
be signed by a particular person or persons. This applies whether or not a
provision of this Act also requires the form to be signed.
(5) An approved form may make different
requirements to be complied with according to whether or not the form is given
in a way that is required or permitted as mentioned in paragraph (3)(b).
(6) If an approved form makes a requirement
as mentioned in subsection (2), (3) or (4), a purported use of the form is
not effective for the purposes of this Act unless the requirement has been
complied with.
11B
Electronic lodgment of approved forms
(1) If a person gives the Regulator an
approved form in a way that is required or permitted as mentioned in paragraph
11A(3)(b):
(a) the form is taken to constitute a
written notice; and
(b) if the form includes the
electronic signature of a person—the form is taken to be signed by that person.
(2) The person’s electronic signature
is a unique identification, in an electronic form, that is approved by the
Regulator for use by the person.
(3) A person is guilty of an offence if:
(a) the person gives the Regulator an
approved form in a way that is required or permitted as mentioned in paragraph
11A(3)(b); and
(b) either:
(i) the form purports to
be given by another person; or
(ii) the form purports to
be given on behalf of another person, and that other person has not consented
to the giving of the form.
Penalty: 50 penalty units.
(4) A person
is guilty of an offence if:
(a) the person gives the Regulator an
approved form in a way that is required or permitted as mentioned in paragraph
11A(3)(b); and
(b) the form includes the electronic
signature of another person who has not consented to the inclusion of the
signature.
Penalty: 50 penalty units.
(5) Subsections (3) and (4) are offences
of strict liability within the meaning of section 6.1 of the Criminal
Code.
11C
Declaration required if approved form lodged electronically on trustee’s behalf
(1) This section applies if:
(a) the Regulator is given an approved
form in a way that is required or permitted as mentioned in paragraph
11A(3)(b); and
(b) the form is given to the Regulator
by a person on behalf of the trustee, or one or more of the trustees, of a
superannuation entity.
In this section, the trustee, or each of the trustees, on
whose behalf the form is given is referred to as the responsible trustee.
(2) The responsible trustee is guilty of an
offence if the responsible trustee does not, before the form is given to the
Regulator, make a signed declaration that states that:
(a) the person is authorised to give
the form to the Regulator on the responsible trustee’s behalf; and
(b) the information in the form is
correct.
Penalty: 50 penalty units.
(3) The responsible trustee is guilty of an
offence if the responsible trustee does not retain the declaration for 5 years
after it is made.
Penalty: 50 penalty units.
(4) The responsible trustee is guilty of an
offence if:
(a) within the 5 year period, the
Regulator requests the responsible trustee to produce the declaration to the
Regulator; and
(b) the responsible trustee does not
comply with the request.
Penalty: 50 penalty units.
(5) Subsections (2), (3) and (4) are
offences of strict liability within the meaning of section 6.1 of the Criminal
Code.
11D
Electronic lodgment—documents other than approved forms
(1) A document that is not required to be
lodged in an approved form may be lodged with the Regulator electronically only
if:
(a) the Regulator and the person
seeking to lodge it (either on the person’s own behalf or on another person’s
behalf) have agreed, in writing, that it may be lodged electronically; or
(b) the Regulator has approved, in
writing, the electronic lodgment of documents of that kind.
(2) The document is taken to be lodged with
the Regulator if it is lodged in accordance with the agreement or approval
(including any requirements of the agreement or approval as to authentication).
11E
Approved guarantees
In this Act, an approved guarantee
is:
(a) a guarantee given by an ADI; or
(b) a guarantee given by or on behalf
of the Commonwealth, a State or a Territory;
that meets the requirements that APRA, by legislative
instrument, determines.
12
Associates
(1) The question whether a person is an
associate of another person for the purposes of this Act is to be determined in
the same way as that question would be determined under the Corporations Act
2001 if the assumptions set out in subsection (2) were made.
(2) The
assumptions are as follows:
(a) that sections 12 and 14 and
paragraphs 15(1)(b) and 16(1)(b) and (c) of that Act had not been enacted;
(b) that section 13 of that Act
were not limited to Chapter 7, but extended to all provisions of that Act.
13
Single trustees
For the
purposes of this Act:
(a) a fund, scheme or trust has a
single corporate trustee if, and only if, there is only one trustee of the
fund, scheme or trust and that trustee is a corporate trustee; and
(b) a fund, scheme or trust has a
single individual trustee if, and only if, there is only one trustee of the fund,
scheme or trust and that trustee is an individual trustee.
13A
RSE licensees that are groups of individual trustees
(1) Subject to this section, for the purposes
of this Act and the regulations, a change in the composition of a group of
individual trustees that is an RSE licensee does not affect the continuity of
the group of individual trustees for the duration of the period during which
the RSE licence continues in force.
Note: So, for example, an RSE licence granted to a
group of individual trustees will not cease to continue in force, merely
because of a change in the membership of the group.
(2) An obligation that would be imposed on an
RSE licensee that is a group of individual trustees of a registrable
superannuation entity by a provision of this Act or the regulations is imposed
instead on each of the trustees but, subject to the entity’s governing rules,
may be discharged by any of them.
(3) A person who is a member of a group of
individual trustees that is an RSE licensee is not liable under any offence of
strict liability or civil penalty provision of this Act or the regulations in
respect of any breach of a provision of this Act or the regulations, or
failure, by the RSE licensee if the person proves that he or she:
(a) made all inquiries (if any) that
were reasonable in the circumstances; and
(b) after doing so, believed on
reasonable grounds that the obligations of the RSE licensee were being complied
with.
Note: In a prosecution for an offence of strict
liability against a provision of this Act or the regulations, a defendant bears
a legal burden in relation to the matters in subsection (3) (see section 13.4
of the Criminal Code).
(4) If a group
of individual trustees is an RSE licensee, a direction, notice or other
document is taken, for the purposes of a provision of this Act or the
regulations, to be given to the RSE licensee if it is given it to any member of
the group.
(5) If a group of individual trustees of a
registrable superannuation entity is an RSE licensee, a request is taken, for
the purposes of a provision of this Act or the regulations, to have been made
to the RSE licensee if it is made to any member of the group and, subject to
the entity’s governing rules, may be dealt with by any member of the group.
(6) Any requirement under this Act or
the regulations that a document be signed by an RSE licensee is taken, if the
RSE licensee is a group of individual trustees, to be a requirement that the
document be signed by each of the members of the group.
(7) An RSE licensee that is a group of
individual trustees is taken, for the purposes of a provision of this Act or
the regulations, to have provided something to a person if one of the members
of the group has provided that thing to the person.
(8) For the purposes of this Act and the
regulations, if an RSE licensee that is a group of individual trustees is
affected by a reviewable decision, each member of the group is taken to be
affected by that decision.
(9) The regulations may exclude or modify the
effect of the subsections of this section (other than subsections (2) and
(3)) in relation to specified provisions.
(10) This section has effect subject to a
contrary intention in a provision of this Act or regulations made for the
purposes of subsection (9).
14
Indefinitely continuing fund—application of rules against perpetuities
If the governing rules of a fund contain
a provision the purpose of which is to avoid a breach of a rule of law relating
to perpetuities, that provision does not prevent the fund from being treated as
an indefinitely continuing fund for the purposes of the definition of approved
deposit fund or superannuation fund in section 10.
15
Approved deposit funds—payments by trustees
(1) For the purposes of paragraph (c) of
the definition of approved purposes in section 10 and for
the purposes of section 53, if:
(a) a beneficiary has an interest in a
fund; and
(b) on the request of the beneficiary,
an amount equal to the beneficiary’s interest is paid by the fund:
(i) to a life insurance
company or registered organisation for the purchase of an annuity in the name
of the beneficiary; or
(ii) into an RSA specified
by the beneficiary;
the trustee of the fund is taken to have paid the amount
to the beneficiary on request.
(1A) For the
purposes of paragraph (c) of the definition of approved purposes
in section 10 and for the purposes of section 53, if:
(a) a beneficiary has an interest in a
fund; and
(b) on the request of the beneficiary,
an amount equal to the beneficiary’s interest is paid by the fund to:
(i) an approved deposit
fund; or
(ii) a regulated
superannuation fund;
the trustee of the first‑mentioned fund is taken to have
paid the amount to the beneficiary on request.
(1B) For the purposes of paragraph (c) of
the definition of approved purposes in section 10, if a
payment is not made immediately on request but is deferred for a period
determined by the trustee concerned, the payment is taken to have been made on
request.
(2) A reference in subsection (1) or
(1A) to a beneficiary includes a reference to the legal personal representative
of a beneficiary.
15A
Definitions of employee and employer
(1) Subject to this section, in this Act, employee
and employer have their ordinary meaning. However, for
the purposes of this Act, subsections (2) to (10):
(a) expand the meaning of those terms;
and
(b) make particular provision to avoid
doubt as to the status of certain persons.
(2) A person who is entitled to payment for
the performance of duties as a member of the executive body (whether described
as the board of directors or otherwise) of a body corporate is, in relation to
those duties, an employee of the body corporate.
(3) If a person works under a contract that
is wholly or principally for the labour of the person, the person is an
employee of the other party to the contract.
(4) A member of the Parliament of the
Commonwealth is an employee of the Commonwealth.
(5) A member of the Parliament of a State is
an employee of the State.
(6) A member of the Legislative Assembly for
the Australian Capital Territory is an employee of the Australian Capital
Territory.
(7) A member of the Legislative Assembly of
the Northern Territory is an employee of the Northern Territory.
(8) For the
purposes of this Act:
(a) a person who is paid to perform or
present, or to participate in the performance or presentation of, any music,
play, dance, entertainment, sport, display or promotional activity or any
similar activity involving the exercise of intellectual, artistic, musical,
physical or other personal skills is an employee of the person liable to make
the payment; and
(b) a person who is paid to provide
services in connection with an activity referred to in paragraph (a) is an
employee of the person liable to make the payment; and
(c) a person who is paid to perform
services in, or in connection with, the making of any film, tape or disc or of
any television or radio broadcast is an employee of the person liable to make
the payment.
(9) Subject to subsection (10), a person
who:
(a) holds, or performs the duties of,
an appointment, office or position under the Constitution or under a law of the
Commonwealth, of a State or of a Territory; or
(b) is otherwise in the service of the
Commonwealth, of a State or of a Territory (including service as a member of
the Defence Force or as a member of a police force);
is an employee of the Commonwealth, the State or the
Territory, as the case requires.
(10) A person who holds office as a member of a
local government council is an employee of the council.
15B
Modified meaning of member
(1) The regulations may provide that a person
is to be treated, or is not to be treated, as being a member of a
superannuation fund for the purposes of this Act or specified provisions of
this Act.
(2) This Act applies with such modifications
(if any) as are prescribed in relation to a person who is a member of a
superannuation fund because of regulations made for the purposes of this
section.
(3) In this section:
modifications includes additions, omissions
and substitutions.
16 Definitions
associated with employer‑sponsorship
Employer‑sponsor
(1) An employer‑sponsor of a
regulated superannuation fund is an employer who:
(a) contributes to the fund; or
(b) would, apart from a temporary
cessation of contributions, contribute to the fund;
for the benefit of:
(c) a member of the fund who is an
employee of:
(i) the employer; or
(ii) an associate of the
employer; or
(d) the dependants of such a member in
the event of the death of the member.
Standard employer‑sponsor
(2) If an employer so contributes, or would
contribute, wholly or partly pursuant to an arrangement between the employer
and a trustee of the regulated superannuation fund concerned, the employer is a
standard employer‑sponsor of the fund (as well as being an employer‑sponsor
of the fund). If the employer only so contributes, or would contribute,
pursuant to arrangements between the employer and a member or members of the
fund, the employer is not a standard employer‑sponsor.
Employer‑sponsored fund
(3) An employer‑sponsored fund is
a regulated superannuation fund that has at least one employer‑sponsor.
Standard employer‑sponsored fund
(4) If a regulated superannuation fund has at
least one standard employer‑sponsor, the fund is a standard employer‑sponsored
fund (as well as being an employer‑sponsored fund).
Standard employer‑sponsored member
(5) A standard employer‑sponsored
member is a member of a regulated superannuation fund in respect of
whom an employer‑sponsor contributes, or would contribute, as mentioned in subsection (1)
wholly or partly pursuant to an arrangement between the employer‑sponsor and a
trustee of the fund.
17A
Definition of self managed superannuation fund
Basic conditions—funds other than single member funds
(1) Subject to this section, a superannuation
fund, other than a fund with only one member, is a self managed
superannuation fund if and only if it satisfies the following
conditions:
(a) it has fewer than 5 members;
(b) if the trustees of the fund are
individuals—each individual trustee of the fund is a member of the fund;
(c) if the trustee of the fund is a
body corporate—each director of the body corporate is a member of the fund;
(d) each member of the fund:
(i) is a trustee of the
fund; or
(ii) if the trustee of the
fund is a body corporate—is a director of the body corporate;
(e) no member of the fund is an
employee of another member of the fund, unless the members concerned are
relatives;
(f) no trustee of the fund receives
any remuneration from the fund or from any person for any duties or services
performed by the trustee in relation to the fund;
(g) if the trustee of the fund is a
body corporate—no director of the body corporate receives any remuneration from
the fund or from any person (including the body corporate) for any duties or
services performed by the director in relation to the fund.
Basic conditions—single member funds
(2) Subject to this section, a superannuation
fund with only one member is a self managed superannuation fund
if and only if:
(a) if the trustee of the fund is a
body corporate:
(i) the member is the sole
director of the body corporate; or
(ii) the member is one of
only 2 directors of the body corporate, and the member and the other director
are relatives; or
(iii) the member is one of
only 2 directors of the body corporate, and the member is not an employee of
the other director; and
(b) if the trustees of the fund are
individuals:
(i) the member is one of
only 2 trustees, of whom one is the member and the other is a relative of the
member; or
(ii) the member is one of
only 2 trustees, and the member is not an employee of the other trustee; and
(c) no trustee of the fund receives
any remuneration from the fund or from any person for any duties or services
performed by the trustee in relation to the fund;
(d) if the trustee of the fund is a
body corporate—no director of the body corporate receives any remuneration from
the fund or from any person (including the body corporate) for any duties or
services performed by the director in relation to the fund.
Certain other persons may be trustees
(3) A superannuation fund does not fail to
satisfy the conditions specified in subsection (1) or (2) by reason only
that:
(a) a member of the fund has died and
the legal personal representative of the member is a trustee of the fund or a
director of a body corporate that is the trustee of the fund, in place of the
member, during the period:
(i) beginning when the
member of the fund died; and
(ii) ending when death
benefits commence to be payable in respect of the member of the fund; or
(b) the legal personal representative
of a member of the fund is a trustee of the fund or a director of a body
corporate that is the trustee of the fund, in place of the member, during any
period when:
(i) the member of the fund
is under a legal disability; or
(ii) the legal personal
representative has an enduring power of attorney in respect of the member of
the fund; or
(c) if a member of the fund is under a
legal disability because of age and does not have a legal personal
representative—the parent or guardian of the member is a trustee of the fund in
place of the member; or
(d) an appointment under section 134
of an acting trustee of the fund is in force.
Circumstances in which entity that does not satisfy
basic conditions remains a self managed superannuation fund
(4) Subject to subsection (5), if a
superannuation fund that is a self managed superannuation fund would, apart
from this subsection, cease to be a self managed superannuation fund, it does
not so cease until the earlier of the following times:
(a) the time an RSE licensee of the
fund is appointed;
(b) 6 months after it would so cease
to be a self managed superannuation fund.
Subsection (4) does not apply if admission of new
members
(5) Subsection (4) does not, except for
the purposes of section 29J, apply if the reason, or one of the reasons,
why the superannuation fund would cease to be a self managed superannuation
fund was the admission of one or more new members to the fund.
Extended meaning of employee in certain
circumstances
(6) For the purposes of this section, a
member of a fund, who is an employee of an employer‑sponsor of the fund, is
also taken to be an employee of another person (the other person),
if the employer‑sponsor is:
(a) a relative of the other person; or
(b) either of the following:
(i) a body corporate of
which the other person, or a relative of the other person, is a director;
(ii) a body corporate
related to that body corporate; or
(c) a trustee of a trust of which the
other person, or a relative of the other person, is a beneficiary; or
(d) a partnership, where:
(i) the other person, or a
relative of the other person, is a partner in the partnership; or
(ii) the other person, or a
relative of the other person, is a director of a body corporate that is a
partner in the partnership; or
(iii) the other person, or a
relative of the other person, is a beneficiary of a trust, if a trustee of the
trust is a partner in the partnership.
Note 1: An effect of this subsection is that a fund
will not be a self‑managed superannuation fund if a member is employed by an
employer‑sponsor of the fund, and another member (who is not a relative) has a
specified interest in that employer‑sponsor: see paragraph (1)(e). An
example of this would be where the employer‑sponsor is a company of which
another member is a director.
Note 2: Another effect is that a fund will not be a
self‑managed superannuation fund if its single member is employed by an
employer‑sponsor of the fund in which the other trustee of the fund (who is not
a relative) has a specified interest: see subsection (2).
(7) Subsection (6) does not limit the
meaning of the term employee.
Regulations
(8) For the
purposes of this section:
(a) a member of a fund is taken to be
an employee of a person belonging to a class specified in the regulations for
the purposes of this paragraph; and
(b) despite subsections (6) and
(7) and section 15A, a member of a fund is not taken to be an employee of
a person belonging to a class specified in the regulations for the purposes of
this paragraph.
Meaning of relative
(9) In this section:
relative, in relation to an individual,
means:
(a) a parent, child, grandparent,
grandchild, sibling, aunt, uncle, great‑aunt, great‑uncle, niece, nephew, first
cousin or second cousin of the individual or of his or her spouse or former
spouse; or
(b) a spouse or former spouse of the
individual, or of an individual referred to in paragraph (a).
(9A) For the purposes of paragraph (a) of
the definition of relative in subsection (9), if one
individual is the child of another individual because of the definition of child
in subsection 10(1), relationships traced to, from or through the individual
are to be determined in the same way as if the individual were the natural
child of the other individual.
Disqualified persons
(10) For the avoidance of doubt, subsection (3)
does not permit a person, in the capacity of legal personal representative of a
disqualified person (within the meaning of section 120), to be a trustee
of a self managed superannuation fund or a director of a body corporate that is
a trustee of a self managed superannuation fund.
18
Public offer superannuation fund
Definition
(1) A superannuation fund is a public
offer superannuation fund if:
(a) one of the following subparagraphs
applies to the fund:
(i) it is a regulated
superannuation fund that is not a standard employer‑sponsored fund;
(ii) it is a standard
employer‑sponsored fund that has at least one member:
(A) who is
not a standard employer‑sponsored member; and
(B) who is
not a member of a prescribed class;
(iii) it is a standard
employer‑sponsored fund in relation to which an election under subsection (2)
has been made;
(iv) a declaration under subsection (6)
(which allows for funds to be declared to be public offer superannuation funds)
is in force in relation to the fund; and
(aa) the fund is not a self managed
superannuation fund; and
(b) no declaration under subsection (7)
(which allows for funds to be declared not to be public offer superannuation
funds) is in force in relation to the fund.
Election to be a public offer superannuation fund
(2) The trustee of a standard employer‑sponsored
fund may elect that the fund is to be treated as a public offer superannuation
fund.
How an election is made
(3) An election must be made by giving APRA a
written notice that is:
(a) in the approved form; and
(b) signed by the trustee.
Trustee has power to make election despite anything in
the governing rules
(4) The trustee has the power to make an
election despite anything in the governing rules of the fund.
Election is irrevocable
(5) An election is irrevocable.
Declaration that fund is a public offer superannuation
fund
(6) APRA may, in writing, declare a
superannuation fund to be a public offer superannuation fund.
Declaration that fund is not a public offer
superannuation fund
(7) APRA may, in writing, declare a
superannuation fund not to be a public offer superannuation fund.
(7A) A declaration that a superannuation fund is
not a public offer superannuation fund may be subject to conditions.
(7B) If a
condition has been breached the trustee must immediately notify APRA, in
writing, of the breach.
Penalty: 30 penalty units.
(7BA) Subsection (7B) is an offence of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(7C) If APRA is satisfied, whether because of a
notification under subsection (7B) or otherwise, that a condition to which
the declaration is subject has been breached:
(a) APRA may revoke the declaration;
and
(b) the superannuation fund is taken,
with effect from the revocation, to have become a public offer superannuation
fund.
Commencement of declaration
(8) A declaration comes into force when it is
made, or, if a later time is specified in the declaration as the time when it
comes into force, it comes into force at that later time.
Cessation of declaration
(9) A declaration remains in force:
(a) if a time is specified in the
declaration as the time when it stops being in force—until that time, or until
the declaration is revoked, whichever occurs first; or
(b) otherwise—until the declaration is
revoked.
Revocation of declaration
(10) APRA may, in writing, revoke a
declaration.
APRA must have regard to guidelines when making or
revoking a declaration
(11) When making or revoking a declaration,
APRA must have regard to any written guidelines determined by APRA under this
subsection.
Copy of declaration or revocation to be given to
trustee
(12) As soon as practicable after making or
revoking a declaration, APRA must give the trustee of the superannuation fund
concerned a copy of the instrument making or revoking the declaration.
19
Regulated superannuation fund
Definition
(1) A regulated superannuation fund is a
superannuation fund in respect of which subsections (2) to (4) have been
complied with.
Fund must have a trustee
(2) The superannuation fund must have a
trustee.
Trustee must be a constitutional corporation or fund
must be a pension fund
(3) Either of the following must apply:
(a) the trustee of the fund must be a
constitutional corporation pursuant to a requirement contained in the governing
rules;
(b) the governing rules must provide
that the sole or primary purpose of the fund is the provision of old‑age
pensions.
Election by trustee
(4) The trustee or trustees must have given
to APRA, or such other body or person as is specified in the regulations, a
written notice that is:
(a) in the approved form; and
(b) signed by the trustee or each
trustee;
electing that this Act is to apply in relation to the
fund.
Note: The approved form of written notice may
require the trustee or the trustees to set out the tax file number of the fund.
See subsection 299U(1).
Regulations
(4A) Without limiting subsection (4),
regulations for the purposes of that subsection may specify that notices are to
be given to different persons or bodies in respect of different classes of
superannuation funds.
Election is irrevocable
(5) An election made as mentioned in subsection (4)
is irrevocable.
Trustee has power to make election despite anything in
the governing rules etc.
(6) The trustee or trustees have the power to
make an election as mentioned in subsection (4) despite anything in the
governing rules of the fund.
Certain funds must become regulated superannuation
funds
(7) If all of the following conditions are
satisfied in relation to a superannuation fund at any time during the period
beginning on the day on which this Act received the Royal Assent and ending at
the end of the fund’s 1993‑94 year of income:
(a) the fund has a trustee;
(b) either:
(i) the trustee of the
fund is a constitutional corporation; or
(ii) the governing rules of
the fund provide that the sole or primary purpose of the fund is the provision
of old‑age pensions;
(c) the fund is not a public sector
superannuation scheme;
(d) there is in force a notice under
section 12 or 13 of the Occupational Superannuation Standards Act 1987 stating
that the Commissioner is satisfied that the fund satisfied, or should be
treated as if it had satisfied, the superannuation fund conditions in relation
to a particular year of income;
(e) there is not in force a notice under
section 12 or 13 of the Occupational Superannuation Standards Act 1987 stating
that the Commissioner is not satisfied that the fund satisfied the
superannuation fund conditions in relation to a year of income later than the
year of income mentioned in paragraph (d);
the trustee of the fund must use its best endeavours to
ensure that the fund becomes a regulated superannuation fund at or before the
beginning of the fund’s 1994‑95 year of income.
Contravention of subsection (7) is not an offence
(8) A contravention of subsection (7) is
not an offence. However, a contravention of subsection (7) is a ground for
the grant of an injunction under section 315.
References to repealed provisions of OSSA
(9) A reference in this section to a
provision of the Occupational Superannuation Standards Act 1987 includes
a reference to the provision as it continues to apply, despite its repeal,
because of the Occupational Superannuation Standards Amendment Act 1993.
20
Related bodies corporate
The question whether bodies corporate
are related to each other for the purposes of this Act is to be determined in
the same way as that question would be determined under the Corporations Act
2001.
20A
Resident approved deposit funds
Resident approved deposit funds
(1) For the purposes of this Act, an approved
deposit fund is a resident approved deposit fund at
a particular time if, and only if:
(a) either:
(i) the fund was
established in Australia; or
(ii) at that time, any
asset of the fund is situated in Australia; and
(b) at that time, the central
management and control of the fund is in Australia; and
(c) at
that time, the percentage worked out using the following formula is not less
than 50%:
where:
Accumulated entitlements
of resident members means the sum of so much of the value of the assets
of the fund at that time as is attributable to:
(i) deposits made to the
fund before that time by or in respect of members of the fund who are residents
at that time; and
(ii) income or accretions
arising from those deposits.
Total assets of fund
means the value of the assets of the fund at that time.
Definitions
(2) In this
section:
Australia has the same meaning as in the
Income Tax Assessment Act 1936.
member includes depositor.
resident has the same meaning as in the
Income Tax Assessment Act 1936.
Part 2A—Licensing of trustees and groups of individual trustees
Division 1—Object of this Part
29A
Object of this Part and the relationship of this Part to other provisions
(1) The object of this Part is to set out provisions
relating to the granting of RSE licences to:
(a) constitutional corporations; and
(b) other bodies corporate; and
(c) groups of individual trustees.
(2) The following is a simplified outline
showing some key relationships between this Part and other provisions of the
Act and the regulations that trustees should be aware of:
Certain provisions may be contravened
if unlicensed trustees carry out particular activities (e.g.: sections 29J
and 152). The trustee, or group of individual trustees, of a fund or trust may
obtain an RSE licence under this Part.
Note 1: If
the trustee is a constitutional corporation, the trustee obtaining an RSE
licence may result in a fund or trust becoming an approved deposit fund or
pooled superannuation trust, which are each registrable superannuation
entities.
Note 2: If
the trustee or group of individual trustees makes an election under section 19,
the fund may become a regulated superannuation fund. Regulated superannuation
funds other than self managed superannuation funds are registrable
superannuation entities.
Note 3: In
order to obtain an RSE licence, the trustee, or group of individual trustees,
must have a risk management strategy.
A trustee, or
group of individual trustees, that has obtained an RSE licence may have a
registrable superannuation entity registered under Part 2B. Certain
provisions may be contravened if certain activities are carried out while a
registrable superannuation entity is not registered (e.g.: accepting
contributions while the entity is unregistered may lead to an offence under
section 34.)
Note 1: A
failure to register the fund or trust may also lead to a breach of an RSE
licence condition and possible loss of the RSE licence.
Note 2: In
order to obtain registration of a fund or trust, the trustee, or group of
individual trustees, must have a risk management plan for that fund or trust.
Division 2—Classes of RSE licences
29B
Classes of RSE licences
(1) There are to be classes of RSE licences.
(2) One class of RSE licences is to be a
class that enables a trustee that holds a licence of that class to be a trustee
of:
(a) any public offer entity; and
(b) any other registrable
superannuation entity included in a class of registrable superannuation
entities specified in regulations made for the purposes of this subsection;
subject to any condition imposed on that licence under
subsection 29EA(3).
Note 1: An RSE licence of this class is called a public
offer entity licence: see subsection 10(1).
Note 2: Only constitutional corporations may hold
public offer entity licences: see paragraph 29D(1)(g).
(3) Another class of RSE licences is to be a
class that enables a trustee that:
(a) holds a licence of that class; or
(b) is a member of a group of
individual trustees that holds a licence of that class;
to be a trustee of any registrable superannuation entity
included in a class of registrable superannuation entities (other than a class
of public offer entities) specified in regulations made for the purposes of
this subsection, subject to any condition imposed on that licence under
subsection 29EA(3).
(4) The regulations may provide for other
classes of RSE licences. For each such class, the regulations must specify the
classes of registrable superannuation entities of which a trustee that:
(a) holds a licence of that class; or
(b) is a member of a group of
individual trustees that holds a licence of that class;
is enabled to be a trustee, subject to any condition
imposed on that licence under subsection 29EA(3).
(5) The classes of registrable superannuation
entity that the regulations may specify in relation to a particular class of
RSE licence may include one or more classes of registrable superannuation
entity that the regulations specify in relation to another class of RSE
licence.
Division 3—Applying for RSE licences
29C
Applications for RSE licences
Who may apply for RSE licences
(1) A constitutional corporation may apply to
APRA for an RSE licence of any class.
(2) A body corporate that is not a
constitutional corporation may apply to APRA for an RSE licence of any class
other than a class that would enable it to be a trustee of a public offer
entity.
(3) A group of individual trustees may apply
to APRA for an RSE licence of any class other than a class that would enable
each of the members of the group to be a trustee of a public offer entity.
Requirements for applications
(4) An application for an RSE licence must:
(a) be in the approved form; and
(b) contain the information required
by the approved form; and
(c) be accompanied by the application
fee (if any) prescribed by regulations made for the purposes of this paragraph;
and
(d) be accompanied by an up‑to‑date
copy of:
(i) if the applicant is a
body corporate—the body corporate’s risk management strategy, signed by the body
corporate; or
(ii) if the applicant is a
group of individual trustees—the group’s risk management strategy, signed by
each member of the group; and
(e) be accompanied by a statement,
signed by:
(i) if the applicant is a
body corporate—the body corporate; or
(ii) if the applicant is a
group of individual trustees—each member of the group;
that the risk management
strategy complies with section 29H.
(5) Regulations made for the purposes of paragraph (4)(c)
may prescribe different application fees for applications for different classes
of RSE licences.
Notifying certain changes while applications are
pending
(6) If:
(a) a body corporate applies for an
RSE licence; and
(b) after the application is made, but
before APRA decides the application, another director is added to, or removed
from the board;
the body corporate must notify APRA, in the approved form,
about the change to the membership of the board as soon as practicable after
that change occurs.
Note: Part 9 has requirements about equal representation
rules.
(7) If:
(a) a group of individual trustees
applies for an RSE licence; and
(b) after the application is made, but
before APRA decides the application, another trustee is added to, or removed
from the group;
a member of the group must notify APRA, in the approved
form, about the change to the membership of the group as soon as practicable
after that change occurs.
Note: Part 9 has requirements about equal
representation rules.
(8) If:
(a) a body corporate or group of
individual trustees applies for an RSE licence; and
(b) after the application is made but
before APRA decides the application, the risk management strategy for the body
or group is varied or revoked and replaced;
the body or group must lodge an up‑to‑date copy of the
risk management strategy with APRA as soon as practicable after the risk
management strategy is varied or revoked and replaced.
(9) An application is taken not to comply
with this section if subsection (6), (7) or (8) is contravened.
Note: APRA cannot grant an RSE licence while the
application does not comply with this section: see paragraph 29D(1)(c).
29CA
APRA may request further information
(1) If a body corporate or group of
individual trustees has applied for an RSE licence, APRA may give the body
corporate or a member of the group a notice requesting the body or group to
give APRA, in writing, specified information relating to the application by a
specified time that is reasonable in the circumstances.
(2) APRA may decide to treat an application
by a body corporate or group of individual trustees for an RSE licence as
having been withdrawn if the body or group:
(a) does not comply with a request to
provide information under this section; and
(b) does not have a reasonable excuse
for not complying.
(3) If APRA decides under subsection (2)
to treat an application for an RSE licence as having been withdrawn, APRA must
take all reasonable steps to ensure that the body that made the application, or
a member of the group that made the application, is given a notice informing
the body or group of:
(a) APRA’s decision; and
(b) the reasons for that decision;
as soon as practicable after making the decision.
29CB
Period etc. for deciding applications from existing trustees in licensing
transition period
Statements of intention to apply
(1) A person who was a trustee of a
registrable superannuation entity at the start of the licensing transition
period may give APRA a written statement that:
(a) is in the approved form; and
(b) indicates whether the person intends
to apply under section 29C for an RSE licence; and
(c) lists the registrable
superannuation entities that the person intends to apply to have registered
under Part 2B if the RSE licence is granted.
Period for deciding applications
(2) Subject to subsection (3), APRA must
decide an application for an RSE licence before the end of the licensing
transition period if:
(a) the application is received by
APRA during that period; and
(b) the application is for an RSE
licence to be granted to:
(i) a body corporate that
was a trustee of a registrable superannuation entity at the start of the
licensing transition period; or
(ii) a group of individual
trustees that has a member who was a trustee of a registrable superannuation
entity at the start of the licensing transition period.
(3) At any time in the last 6 months of the
licensing transition period, APRA may refuse to consider under subsection (2)
any further applications for RSE licences that are received by APRA in the last
6 months before the end of the licensing transition period for RSE licences to
be granted to:
(a) bodies corporate that were
trustees of registrable superannuation entities at the start of the licensing
transition period; or
(b) groups of individual trustees with
one or more members who were each a trustee of a registrable superannuation
entity at the start of the licensing transition period.
(4) If APRA decides to refuse, under subsection (3),
to consider under subsection (2) any further applications, APRA must, as
soon as practicable after making the decision, publish a notice stating APRA’s
decision in a daily newspaper that circulates generally in each State and
Territory.
(5) If APRA decides to refuse, under subsection (3),
to consider under subsection (2) an application, that application is
taken, at the end of the licensing transition period, to have been received by
APRA immediately after the end of the licensing transition period.
29CC
Period for deciding other applications
(1) APRA must
decide an application for an RSE licence within 90 days after receiving it if:
(a) the application is received by
APRA after the end of the licensing transition period; or
(b) the application is received by
APRA during the licensing transition period and is for an RSE license to be
granted to:
(i) a body corporate that
was not a trustee of a registrable superannuation entity at the start of the
licensing transition period; or
(ii) a group of individual
trustees that has no members that were a trustee of a registrable
superannuation entity at the start of the licensing transition period;
unless APRA extends the period for deciding the
application under subsection (2).
(2) APRA may extend the period for deciding
an application covered by paragraph (1)(a) or (b) by up to 30 days if APRA
informs the body corporate, or a member of the group, that made the application
of the extension:
(a) in writing; and
(b) within 90 days after receiving the
application.
(3) If APRA extends the period for deciding
the application, it must decide the application within the extended period.
(4) If APRA has not decided the application
by the end of the period by which it is required to decide the application,
APRA is taken to have decided, at the end of the last day of that period, to
refuse the application.
Division 4—Grant of RSE licences
29D
Grant of RSE licences
(1) APRA must grant an RSE licence to a body
corporate, or group of individual trustees, that has applied for an RSE licence
if, and only if:
(a) APRA has no reason to believe
that:
(i) if the application is
made by a body corporate—the body corporate; or
(ii) if the application is
made by a group of individual trustees—the group as a whole or any member of
the group;
would fail to comply with the
RSE licensee law if the RSE licence were granted; and
(b) APRA has no reason to believe
that:
(i) if the application is
made by a body corporate—the body corporate; or
(ii) if the application is
made by a group of individual trustees—the group as a whole or any member of
the group;
would fail to comply with any
condition imposed on the RSE licence if it were granted; and
(c) the application for the licence
complies with section 29C and is for a class of licence that the body
corporate or group of individual trustees may apply for under that section; and
(d) APRA is satisfied that:
(i) if the application is
made by a body corporate—the body corporate meets the requirements of standards
prescribed under Part 3 relating to fitness and propriety for trustees of
funds and RSE licensees; or
(ii) if the application is
made by a group of individual trustees—the group as a whole meets the
requirements of standards prescribed under Part 3 relating to fitness and
propriety for RSE licensees and each of the members of the group meets the
requirements of standards prescribed under Part 3 relating to fitness and
propriety for trustees of funds; and
(e) APRA is satisfied that the risk
management strategy for the body corporate or group meets the requirements of
section 29H; and
(f) in a case where the applicant is
not a constitutional corporation—APRA is satisfied that:
(i) if the application is
made by a body corporate—the body corporate; or
(ii) if the application is
made by a group of individual trustees—each member of the group;
only intends to act as a trustee
of one or more superannuation funds that have governing rules providing that
the sole or primary purpose of the fund is the provision of old‑age pensions;
and
(g) in a case where the application is
for a licence of a class that enables a trustee that holds a licence of that
class to be a trustee of a public offer entity subject to any condition imposed
under subsection 29EA(3)—APRA is satisfied that the applicant is a
constitutional corporation that meets the capital requirements under section 29DA;
and
(h) the application has not been
withdrawn, treated as withdrawn under subsection 29CA(2), refused consideration
under subsection 29CB(3) or taken to have been refused under subsection
29CC(4).
Note 1: Conditions apply to all RSE licences. See
Division 5.
Note 2: An RSE licence may only be granted to a body
corporate or a group of individual trustees because only bodies corporate and
groups of individual trustees may apply for RSE licences. See section 29C.
(2) Otherwise APRA must refuse the application.
29DA
Capital requirements
(1) The capital requirements under this
section are met by a constitutional corporation if it satisfies at least one of
the following subsections.
(2) A constitutional corporation satisfies
this subsection if APRA is satisfied that the value of the corporation’s net
tangible assets is equal to, or greater than, the amount prescribed by
regulations made for the purposes of this subsection.
(3) A constitutional corporation satisfies
this subsection if APRA is satisfied that the corporation is entitled to the
benefit of an approved guarantee that:
(a) is of an amount equal to, or
greater than, the amount prescribed by regulations made for the purposes of
this paragraph; and
(b) is in respect of the corporation’s
duties as trustee of each registrable superannuation entity of which it is, or
is proposing to become, the trustee.
(4) A constitutional corporation satisfies
this subsection if APRA is satisfied that:
(a) the corporation is entitled to the
benefit of an approved guarantee that is in respect of its duties as trustee of
each registrable superannuation entity of which it is, or is proposing to
become, the trustee; and
(b) the sum of the amount of the
approved guarantee and the value of the corporation’s net tangible assets is
equal to, or greater than, the amount prescribed by regulations made for the
purposes of this paragraph.
(5) A constitutional corporation satisfies
this subsection if it has agreed, in writing, to comply with written
requirements that:
(a) were given to it by APRA before:
(i) it was granted an RSE
licence; or
(ii) its class of RSE
licence was varied, resulting in the RSE licensee being required to meet the
capital requirements under this section; and
(b) relate to the custody of the assets
of each of the registrable superannuation entities of which it is, or is
proposing to become, the trustee.
(6) In this section:
net tangible assets has the meaning given by
the regulations.
29DB
Notice of class of licence
If APRA decides to grant an RSE licence
to a body corporate or group of individual trustees, APRA must give the body
corporate or group an RSE licence that specifies the class of licence granted.
29DC
Documents required to bear ABNs
(1) An RSE licensee must ensure that its ABN is
included in:
(a) each document that it gives to
APRA in the capacity of an RSE licensee; and
(b) any other document in which it
identifies itself as an RSE licensee of a registrable superannuation entity;
and
(c) if the RSE licensee is a body
corporate—any document in which the body corporate identifies itself as a
trustee of a registrable superannuation entity; or
(d) if the RSE licensee is a group of
individual trustees—any document in which a member of the group identifies
itself as a trustee of a registrable superannuation entity or as a member of a
group of individual trustees that are the RSE licensee of a registrable
superannuation entity.
(2) However, an RSE licensee is not required
to comply with subsection (1) in respect of a particular document if it
has been given written approval by APRA not to be required to ensure that its
ABN is included in that document or in a class of documents that includes that
document.
29DD
Licence period
(1) An RSE licence comes into force at the
later of:
(a) the time when it is granted; or
(b) the time specified on the licence
as the time when it comes into force.
(2) An RSE licence continues in force,
subject to:
(a) any imposition of licence
conditions under Division 5; or
(b) any variation or revocation of the
licence conditions, or variation of the licence class, under Division 6;
until the RSE licence is cancelled under Division 7.
29DE
APRA to give notice of refusal of applications
If APRA refuses an application by a body
corporate or a group of individual trustees for an RSE licence, APRA must take
all reasonable steps to ensure that the body or a member of the group is given
a notice informing the body or group of:
(a) APRA’s refusal of the application;
and
(b) the reasons for that refusal;
as soon as practicable after refusing the application.
Division 5—Conditions on RSE licences
29E
Conditions imposed on all licences and on groups of licences
Conditions imposed on all RSE licences
(1) The following conditions are imposed on
all RSE licences:
(a) the RSE licensee and, if the RSE
licensee is a group of individual trustees, each of the members of the group,
must comply with the RSE licensee law;
(b) the duties of a trustee in respect
of each registrable superannuation entity of which it is an RSE licensee must
be properly performed by:
(i) if the RSE licensee is
a body corporate—the body corporate; or
(ii) if the RSE licensee is
a group of individual trustees—each of the members of the group;
(ba) the RSE licensee must:
(i) have an ABN; or
(ii) have made an
application for an ABN that has not been refused under the A New Tax System
(Australian Business Number) Act 1999;
(c) the RSE licensee must have a risk
management strategy that complies with Division 8, and must comply with
that strategy;
(d) the RSE licensee must
ensure that each registrable superannuation entity of which it is the RSE
licensee is:
(i) registered under Part 2B;
or
(ii) the subject of an
application for registration under Part 2B that has not been finally
determined or otherwise disposed of;
(e) the RSE licensee must comply with
each measure and procedure set out in the risk management plan for each
registrable superannuation entity of which it is the RSE licensee;
(ea) the RSE licensee must ensure that
each registrable superannuation entity of which it is an RSE licensee has an
ABN;
(f) the RSE licensee must notify APRA
of any change in the composition of the RSE licensee (see subsection (2))
within 14 days after the change takes place;
(g) the RSE licensee must comply with
any other conditions prescribed by regulations made for the purposes of this
paragraph.
Note 1: Breach of a licence condition may lead to
consequences such as a direction from APRA to comply with the condition (see
section 29EB) or cancellation of the licence (see section 29G).
Note 2: An RSE licensee must notify APRA if the RSE
licensee breaches a licence condition: see section 29JA.
Note 3: Additional conditions may be imposed on various
types of RSE licences (see subsections (3) to (7)) or a particular RSE licence (see section 29EA).
Change in the composition of the RSE licensee
(2) For the purposes of paragraph (1)(f),
a change in the composition of the RSE licensee is:
(a) if the RSE licensee is a body
corporate—a person becoming, or ceasing to be, a director of the body
corporate; or
(b) if the RSE licensee is a group of
individual trustees—an individual becoming, or ceasing to be, a member of the
group.
Classes enabling RSE licensees to be trustees of public
offer entities
(3) The following additional conditions are
imposed on each RSE licence that enables a trustee that holds a licence of that
class to be a trustee of a public offer entity:
(a) the RSE licensee that holds the
licence must continue to be a constitutional corporation that meets the capital
requirements under section 29DA; and
(b) if the RSE licensee that holds the
licence met the capital requirements by satisfying subsection 29DA(5) (and not
subsection 29DA(2), (3) or (4)) when APRA granted the licence—the RSE licensee
must continue to comply with the written requirements mentioned in that
subsection.
Licences held by RSE licensees that are not
constitutional corporations
(4) The following additional condition is
imposed on each RSE licence that is not held by a constitutional corporation:
(a) if the RSE licensee that holds the
licence is a body corporate—that the body; or
(b) if the RSE licensee is a group of
individual trustees—that the members of the group;
only act as a trustee of superannuation funds that have governing
rules providing that the sole or primary purpose of the fund is the provision
of old‑age pensions.
Licences held by groups of individual trustees
(5) The following additional conditions are
imposed on each RSE licence held by a group of individual trustees:
(a) the members of the group must make
all reasonable efforts to ensure that the group always has at least 2 members;
(b) any continuous period for which
the group has less than 2 members must be 90 days or less.
Note: Paragraph 29E(1)(f) requires APRA to be
notified of any change in the composition of the RSE licensee.
Licences held by RSE licensees of transferee funds
(6) An additional condition is imposed on
each RSE licence held by an RSE licensee of a fund that has had benefits of
members and beneficiaries transferred to it from a transferor fund under Part 18
(whether while the RSE licensee was the RSE licensee of the fund or earlier).
The condition is that, while the RSE licensee is the RSE licensee of the fund,
the RSE licensee assumes the obligation to pay benefits to those who were
members or beneficiaries of the transferor fund immediately before the
transfer.
Prescribed conditions imposed on classes of licences
(7) An additional condition prescribed by a
regulation made for the purposes of this subsection as a condition applying to
all RSE licences of a specified class is imposed on each RSE licence of that
class.
(8) A specified class mentioned in subsection (7)
may be a class other than a class provided for under subsection 29B(2) or (3)
or under regulations made for the purposes of subsection 29B(4).
29EA
Additional conditions imposed on individual licences by APRA
(1) APRA may, at any time, impose an
additional condition on an RSE licence by giving the RSE licensee a notice setting
out the additional condition.
(2) A condition imposed under subsection (1)
must not be inconsistent with any condition imposed by, or under, section 29E
on an RSE licence.
Note 1: Breach of a licence condition may lead to
consequences such as a direction from APRA to comply with the condition (see
section 29EB) or cancellation of the licence (see section 29G).
Note 2: An RSE licensee must notify APRA if the RSE
licensee breaches a licence condition: see section 29JA.
Note 3: RSE licensees may apply to APRA to have
conditions imposed under this section varied or revoked: see section 29F.
(3) Without limiting subsection (1), an
additional condition imposed under that subsection on an RSE licence may
provide that the body corporate that is the RSE licensee, or each of the
members of a group of individual trustees that is the RSE licensee, must not
act as a trustee under that RSE licence for a registrable superannuation entity
other than:
(a) a registrable superannuation
entity specified in the condition; or
(b) a registrable superannuation
entity included in the class of registrable superannuation entities specified
in the condition.
(4) Without limiting subsection (1), an
additional condition imposed under that subsection on an RSE licence may provide
that the RSE licensee must ensure that a fund specified in the condition, or in
a class of funds specified in the condition, must comply with the alternative
agreed representation rules whenever section 92 applies to the fund.
However, before imposing such a condition, APRA must have regard to any written
guidelines determined by APRA under this subsection.
(5) If the RSE
licensee is also a financial services licensee:
(a) APRA must consult ASIC before
imposing a condition that, in APRA’s opinion, might reasonably be expected to
affect the RSE licensee’s ability to provide one or more of the financial
services (within the meaning of the Corporations Act 2001) that the RSE
licensee provides; and
(b) APRA must inform ASIC about the
imposition of any condition not covered by paragraph (a) within one week
after the condition is imposed.
(6) A failure to comply with a requirement of
subsection (5) does not invalidate the imposition of any condition.
(7) An additional condition imposed under
this section comes into force on the later of:
(a) the day on which APRA gives the
RSE licensee the notice of the condition; or
(b) the day specified in the notice as
the day on which the condition comes into force.
29EB
Directions to comply with licence conditions
APRA may direct an RSE licensee to
comply with a specified condition of its RSE licence by a specified time if
APRA has reasonable grounds to believe that the RSE licensee has breached the
condition. The direction must:
(a) be by notice in writing given to
the RSE licensee; and
(b) specify a time that is reasonable
in the circumstances.
Note: A failure to comply with a direction may lead
to cancellation of the RSE licence (see section 29G) and may be an offence
(see section 29JB).
Division 6—Varying RSE licences
29F
Applications for variation of RSE licences
(1) An RSE licensee may apply to APRA for one
or both of the following:
(a) variation of its RSE licence so
that the RSE licence is an RSE licence of a different class;
(b) variation or revocation of a
condition that APRA has imposed on its RSE licence under section 29EA.
(2) An application under this section must:
(a) be in the approved form; and
(b) contain the information required
by the approved form; and
(c) if the application is for a variation
of an RSE licence so that it is an RSE licence of a different class—be
accompanied by the application fee (if any) prescribed for the type of
variation by regulations made for the purposes of this paragraph.
29FA
APRA may request further information
(1) APRA may give an RSE licensee that makes
an application under section 29F a notice requesting the RSE licensee to
give APRA, in writing, specified information relating to the application by a
specified time that is reasonable in the circumstances.
(2) APRA may decide to treat an application
under section 29F as having been withdrawn if the RSE licensee:
(a) does not comply with a request to
provide information under this section; and
(b) does not have a reasonable excuse
for not complying.
(3) If APRA decides to treat an application
under section 29F as having been withdrawn, APRA must take all reasonable
steps to ensure that the RSE licensee is given a notice informing the RSE
licensee of:
(a) APRA’s decision; and
(b) the reasons for that decision;
as soon as practicable after making the decision.
29FB
Period for deciding applications
(1) APRA must decide an application under
section 29F within 60 days of receiving the application, unless APRA
extends the period for deciding the application under subsection (2).
(2) APRA may extend the period for deciding
an application under section 29F by up to 60 days if APRA informs the RSE
licensee of the extension:
(a) in writing; and
(b) within 60 days of receiving the
application.
(3) If APRA extends the period for deciding
an application under section 29F, it must decide the application within
the extended period.
(4) If APRA has not decided an application
under section 29F by the end of the period by which it is required to
decide the application, APRA is taken to have decided, at the end of the last
day of that period, to refuse the application.
29FC
APRA may vary RSE licences in accordance with applications
(1) APRA may, by notice to an RSE licensee:
(a) vary the RSE licensee’s RSE
licence so that it is an RSE licence of a different class; or
(b) vary or revoke a condition that
APRA has imposed on the RSE licence under section 29EA;
in accordance with an application under section 29F.
(2) However:
(a) an RSE licence must not be varied
so that it becomes an RSE licence of a particular class unless APRA is
satisfied that the RSE licensee will comply with any conditions imposed on that
class of RSE licence; and
(b) a condition as varied under paragraph (1)(b)
must not be inconsistent with any condition imposed by section 29E; and
(c) if the RSE licensee is also a
financial services licensee:
(i) APRA must consult ASIC
before varying the RSE licence so that it is an RSE licence of a different
class, if, in APRA’s opinion, the variation might reasonably be expected to
affect the RSE licensee’s ability to provide one or more of the financial
services (within the meaning of the Corporations Act 2001) that the RSE
licensee provides; and
(ii) APRA must consult ASIC
before varying or revoking a condition that, in APRA’s opinion, might
reasonably be expected to affect the RSE licensee’s ability to provide one or
more of the financial services (within the meaning of the Corporations Act
2001) that the RSE licensee provides; and
(iii) APRA must consult ASIC
before varying a condition so that it would, in APRA’s opinion, become a
condition that might reasonably be expected to have an effect as described in subparagraph (ii);
and
(iv) APRA must inform ASIC
about the variation or revocation of any condition not covered by subparagraph (i),
(ii) or (iii) within one week after the condition is varied or revoked.
(3) A failure to comply with a requirement of
paragraph (2)(c) does not invalidate:
(a) the variation of an RSE licence so
that it is an RSE licence of a different class; or
(b) the variation or revocation of a
licence condition.
(4) APRA is not required to vary the class
of, or vary or revoke any condition of, an RSE licence in the terms requested
by an RSE licensee in an application under section 29F.
29FD
APRA may vary or revoke licence conditions on its own initiative
(1) APRA may, on its own initiative, vary or
revoke any condition that it imposed on an RSE licence under section 29EA.
(2) However:
(a) a condition as varied under subsection (1)
must not be inconsistent with any condition imposed by section 29E; and
(b) if the RSE licensee that holds the
licence is also a financial services licensee:
(i) APRA must consult ASIC
before varying or revoking a condition that, in APRA’s opinion, might
reasonably be expected to affect the RSE licensee’s ability to provide one or
more of the financial services (within the meaning of the Corporations Act
2001) that the RSE licensee provides; and
(ii) APRA must consult ASIC
before varying a condition so that it would, in APRA’s opinion, become a
condition that might reasonably be expected to have an effect as described in subparagraph (i);
and
(iii) APRA must inform ASIC
about the variation or revocation of any condition not covered by subparagraph (i)
or (ii) within one week after the condition is varied or revoked.
(3) A failure to comply with a requirement of
paragraph (2)(b) does not invalidate the variation or revocation of a
condition.
29FE
Notification of APRA’s decisions under this Division
(1) APRA must give a notice to an RSE
licensee if APRA:
(a) varies the RSE licensee’s RSE
licence under section 29FC so that it is an RSE licence of a different
class; or
(b) varies or revokes, under section 29FC
or 29FD, a condition that APRA imposed on the RSE licence under section 29EA.
(2) The notice must:
(a) if paragraph (1)(a)
applies—specify the class of the RSE licence after the variation; and
(b) if paragraph (1)(b) applies:
(i) identify the licence
condition being varied or revoked; and
(ii) specify any conditions
imposed under section 29EA to which the licence is subject after the
variation or revocation comes into force; and
(c) state the reasons for the
variation or revocation; and
(d) specify the day, not earlier than
the day on which APRA gives the notice, on which the variation or revocation
comes into force.
(3) If APRA refuses an application for a
variation or revocation under section 29FC, APRA must take all reasonable
steps to ensure that the RSE licensee that made the application is given a
notice informing it of:
(a) APRA’s refusal of the application;
and
(b) the reasons for the refusal;
as soon as practicable after refusing the application.
29FF
When variations or revocations come into force etc.
(1) If, under section 29FC, APRA varies
an RSE licence so that it is an RSE licence of a different class:
(a) the variation comes into force on
the day specified in the notice under paragraph 29FE(2)(d); and
(b) the variation remains in force
until:
(i) the licence is again
varied so that it is an RSE licence of a different class; or
(ii) the licence is
cancelled.
(2) If, under section 29FC or 29FD, APRA
varies a condition imposed on an RSE licence:
(a) the variation comes into force on
the day specified in the notice under paragraph 29FE(2)(d); and
(b) the variation remains in force
until:
(i) the condition is
varied in an inconsistent manner; or
(ii) the condition is
revoked; or
(iii) the licence is
cancelled.
(3) If, under section 29FC or 29FD, APRA
revokes a condition imposed on an RSE licence, the revocation comes into force
on the day specified in the notice under paragraph 29FE(2)(d).
Division 7—Cancelling RSE licences
29G
Cancellation of RSE licences
(1) APRA may, in writing, cancel an RSE
licence.
Note: In some circumstances, APRA must inform or
consult ASIC (see section 29GA).
(2) Without limiting subsection (1),
APRA may cancel an RSE licence under that subsection if:
(a) the RSE licensee has requested, in
the approved form, that the licence be cancelled; or
(b) the RSE licensee is a body
corporate and is a disqualified person for the purposes of Part 15; or
(c) the RSE licensee has breached a
condition imposed on the licence; or
(d) APRA has reason to believe that
the RSE licensee will breach a condition imposed on the licence; or
(e) the RSE licensee has failed to
comply with a direction by APRA under section 29EB; or
(f) APRA has reason to believe that
the RSE licensee will fail to comply with a direction by APRA under section 29EB;
(v) where the RSE licensee is an FHSA
provider (within the meaning of the First Home Saver Accounts Act 2008)—circumstances
exist as described in paragraph 107(2)(b), (c), (d), (e) or (f) of that Act.
(4) If APRA cancels an RSE licence it must
take all reasonable steps to ensure that the body corporate or a member of the
group that held the RSE licensee is given a notice informing the body corporate
or group:
(a) that APRA has cancelled the
licence; and
(b) of the reasons for the
cancellation.
29GA
Cancellation of RSE licences of financial services licensees
(1) Before cancelling the RSE licence of an
RSE licensee that is also a financial services licensee, APRA must consult ASIC
if, in APRA’s opinion, the cancellation might reasonably be expected to affect
the RSE licensee’s ability to provide one or more of the financial services
(within the meaning of the Corporations Act 2001) that the RSE licensee
provides.
(2) If APRA cancels the RSE licence of an RSE
licensee that is also a financial services licensee, APRA must inform ASIC of
the cancellation within one week after the cancellation.
(3) A failure to comply with a requirement of
this section does not invalidate the cancellation of an RSE licence.
29GB
APRA may allow RSE licence to continue in effect
In a notice that APRA gives to an RSE
licensee cancelling its RSE licence, APRA may specify that the RSE licence
continues in effect as though the cancellation had not happened for the
purposes of:
(a) a specified provision,
administered by APRA, of this Act or the regulations; or
(b) a specified provision,
administered by APRA, of any other law of the Commonwealth;
in relation to specified matters, a specified period, or
both.
Division 8—Risk management strategies
Subdivision A—Contents of risk management strategies
29H
Contents of risk management strategies
(1) A risk management strategy must set out
reasonable measures and procedures that a body corporate or group of individual
trustees is to apply to identify, monitor and manage risks that arise:
(a) in relation to its activities, or
proposed activities, as an RSE licensee; and
(b) in relation to all its other
activities, or proposed activities, to the extent that they are relevant to its
activities, or proposed activities, as an RSE licensee.
(2) Without limiting subsection (1), the
risk management strategy of a body corporate or group of individual trustees
must set out:
(a) reasonable measures and procedures
that the body or group is to apply to identify, monitor and manage:
(i) the risks associated
with governance and decision‑making processes; and
(ii) the risks that arise
as a result of entering into outsourcing arrangements (other than arrangements
that relate only to a particular registrable superannuation entity); and
(iii) the risks arising from
any changes to the RSE licensee law; and
(iv) the risks of potential
fraud and theft; and
(b) the circumstances in which an
audit of the risks referred to in this section is to be undertaken; and
(c) such other matters as are
prescribed by regulations made for the purposes of this paragraph.
(3) The risk management strategy must be
signed:
(a) if it is the risk management
strategy of a body corporate—by the body; or
(b) if it is the risk management
strategy of a group of individual trustees—by each member of the group.
Note: An RSE licence will not be granted unless
there is a risk management strategy that meets the requirements of this
section: see paragraph 29D(1)(e).
(4) The risk management strategy must not by
reference incorporate provisions of any other document unless that other
document is available, without charge, to members of the public.
(5) A risk management strategy does not fail
to comply with this section merely because it reproduces information contained
in the risk management plan for an entity of which an applicant for an RSE
licence is, or proposes to be, the RSE licensee.
Subdivision B—Maintaining and reviewing risk management strategies
29HA
Requirement to maintain and review risk management strategies
(1) An RSE licensee must:
(a) ensure that at all times its risk
management strategy is up to date; and
(b) ensure that its risk management
strategy is reviewed at least once each year to ensure that it complies with
section 29H; and
(c) modify, or replace, its risk
management strategy in accordance with section 29HB if at any time the RSE
licensee becomes aware that the risk management strategy no longer complies
with section 29H.
(2) An RSE licensee must review its risk
management strategy within 60 days after the RSE licensee:
(a) becomes the RSE licensee of a
registrable superannuation entity (other than a registrable superannuation
entity of which, at the time of the application for an RSE licence, the RSE
licensee proposed to become the RSE licensee); or
(b) becomes an acting trustee
appointed under Part 17 of a superannuation entity following the
suspension or removal of a former trustee of the entity under that Part.
However, this subsection does not apply if review of the
RSE licensee’s risk management strategy is due under paragraph (1)(b)
within the 60 days after the RSE licensee becomes an RSE licensee, or trustee,
of the entity.
Note: Only a person may be appointed as an acting
trustee under Part 17: see section 134.
29HB
Modifications etc. to risk management strategies
(1) An RSE licensee may:
(a) modify its risk management
strategy; or
(b) repeal its risk management
strategy and replace it with a new risk management strategy.
(2) However, after the modification or the
repeal and replacement, the risk management strategy must comply with section 29H.
(3) APRA may direct an RSE licensee to modify
its risk management strategy as set out in the direction, by a specified time,
to ensure that the strategy complies with section 29H. The direction is to
be given by notice to the RSE licensee.
Note: A failure to comply with a direction may be an
offence: see section 29JC.
(4) A time specified in a direction given to
an RSE licensee under subsection (3) must be at least 14 days after the
direction is given to the RSE licensee.
29HC
Notification of modifications etc. to risk management strategies
(1) If an RSE licensee modifies its risk
management strategy, the RSE licensee must give APRA:
(a) a copy of the modification; and
(b) a copy of the strategy as
modified;
within 14 days after making the modification.
(2) If an RSE licensee repeals its risk
management strategy (the old strategy) and replaces it with
another risk management strategy (the new strategy), the RSE
licensee must give APRA:
(a) a copy of the new strategy; and
(b) a written statement to the effect
that the new strategy replaces the old strategy;
within 14 days after the old strategy is repealed.
(3) Any copy or statement given to APRA by an
RSE licensee under this section must be signed by the RSE licensee.
Note: If the RSE licensee is a group of individual
trustees, the copy or statement must be signed by each of the members of the
group: see subsection 13A(6).
(4) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1),
(2) or (3).
Penalty: 50 penalty units.
(5) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1),
(2) or (3).
This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Subdivision C—Miscellaneous
29HD
APRA to be given information
(1) APRA may give an RSE licensee a notice
requesting it to give APRA, in a specified way, specified information relating
to its risk management strategy by a specified time that is reasonable in the
circumstances.
(2) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) there has been a failure by the
RSE licensee to comply with a notice under subsection (1).
Penalty: 50 penalty units.
(3) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) there has been a failure by the
RSE licensee to comply with a notice under subsection (1).
This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Note 3: Sections 137.1 and 137.2 of the Criminal
Code also create offences for providing false or misleading information or
documents.
(4) Subsection (2) or (3) does not apply
if the RSE licensee has a reasonable excuse for the failure to comply with the
notice under subsection (1).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Division 9—Offences and self‑incrimination
29J
Being trustee of a registrable superannuation entity while unlicensed etc.
(1) A person must not be a trustee, or act as
a trustee, of a registrable superannuation entity unless at least one of the
following paragraphs apply:
(a) the person holds an RSE licence
that enables the person to be the trustee of the entity;
(b) the person is a member of a group
of individual trustees that holds an RSE licence that enables the members of
the group to each be a trustee of the entity.
(2) Despite subsection 13.3(3) of the Criminal
Code, a defendant does not bear an evidential burden in relation to any
matter in subsection (1) of this section.
(3) A person that contravenes subsection (1)
commits an offence.
Penalty: Imprisonment for 2 years, or 120 penalty units, or
both.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(4) A person must not be a trustee of a
registrable superannuation entity, or act as a trustee of a registrable
superannuation entity, if the person:
(a) is a body corporate; and
(b) is not the only trustee of the
registrable superannuation entity.
(5) A person that contravenes subsection (4)
commits an offence.
Penalty: Imprisonment for 2 years, or 120 penalty units, or
both.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(6) This section does not prevent an RSE
licensee from engaging or authorising persons to act on its behalf.
29JA
Failing to notify breach of licence condition
(1) If an RSE licensee becomes aware that:
(a) the RSE licensee has breached or
will breach a condition imposed on its RSE licence; and
(b) the breach is or will be
significant (see subsection (1A));
the RSE licensee must give APRA a written report about the
breach as soon as practicable, and in any case no later than 10 business days,
after becoming aware of the breach.
(1A) For the purposes of subsection (1), a
breach is or will be significant if the breach is or will be
significant having regard to any one or more of the following factors:
(a) the number or frequency of similar
previous breaches;
(b) the impact the breach has or will
have on the RSE licensee’s ability to fulfil its obligations as trustee of the
superannuation entity;
(c) the extent to which the breach indicates
that the RSE licensee’s arrangements to ensure compliance with the RSE licensee
law might be inadequate;
(d) the actual or potential financial
loss arising or that will arise from the breach to the beneficiaries of the
entity or to the RSE licensee;
(e) any other matters prescribed by
regulations made for the purposes of this paragraph.
(2) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1).
Penalty: 50 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29JB
Not complying with direction to comply with licence conditions
(1) An RSE licensee must comply with a
direction given to it under section 29EB within the time specified in the
direction.
(2) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1).
Penalty: 60 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29JC
Not complying with direction to modify risk management strategy
(1) An RSE licensee must comply with a direction
given to it under section 29HB within the time specified in the direction.
(2) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1).
Penalty: 60 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29JCA
False representation about status as RSE licensee
(1) A person commits an offence if:
(a) the person makes a representation;
and
(b) the representation is that the
person is, or is a member of a group that is, an RSE licensee; and
(c) the representation is false.
Penalty: 60 penalty units.
(2) Strict liability applies to
subsection (1).
Note: For strict liability, see
section 6.1 of the Criminal Code.
29JD
Breach does not affect validity of issue of superannuation interests etc.
A breach of section 29J, 29JA, 29JB
or 29JC does not affect the validity of the issue of a superannuation interest
or of any other act.
Part 2B—Registrable superannuation entities
Division 1—Object of this Part
29K
Object etc. of this Part
(1) The object of this Part is to provide for
the registration of registrable superannuation entities.
(2) Registration is significant because an RSE
licensee may breach the licence condition imposed by paragraph 29E(1)(d) if a
registrable superannuation entity of which it is the RSE licensee is not
registered.
Note: Breach of a licence condition may lead to
consequences such as a direction from APRA to comply with the condition (see
section 29EB) or cancellation of the licence (see section 29G).
Division 2—Applying for registration
29L
Applications for registration
Who may apply for registration
(1) An RSE licensee may apply to APRA for
registration of a registrable superannuation entity.
Requirements for applications
(2) An application for registration of a
registrable superannuation entity must:
(a) be in the approved form; and
(b) contain the information required
by the approved form; and
(ba) state the RSE licensee’s and the
entity’s ABNs; and
(c) be accompanied by an up‑to‑date
copy of the trust deed by which the registrable superannuation entity is
constituted (except to the extent that the trust deed is constituted by the
governing rules of the entity); and
(d) be accompanied by an up‑to‑date
copy of the governing rules of the registrable superannuation entity (except to
the extent that the governing rules are constituted by the law of the
Commonwealth or by unwritten rules); and
(e) be accompanied by an up‑to‑date
copy of the risk management plan for the registrable superannuation entity,
signed by the RSE licensee that made the application; and
(f) be accompanied by a statement,
signed by the RSE licensee that made the application, to the effect that the
risk management plan accompanying the application complies with section 29P.
Note: If the RSE licensee is a group of individual
trustees, the copy or statement must be signed by each of the members of the
group: see subsection 13A(6).
Notifying certain changes while applications are
pending
(3) If:
(a) an RSE licensee applies for
registration of a registrable superannuation entity; and
(b) after the application is made but
before APRA decides the application, the trust deed (other than the governing
rules of the entity) by which the entity is constituted is varied or revoked
and replaced;
the RSE licensee must lodge an up‑to‑date copy of the
trust deed with APRA as soon as practicable after the trust deed is varied or
revoked and replaced.
(4) If:
(a) an RSE licensee applies for
registration of a registrable superannuation entity; and
(b) after the application is made but
before APRA decides the application, any governing rules of the entity (that
are not constituted by the law of the Commonwealth or by unwritten rules) are
varied or revoked and replaced;
the RSE licensee must lodge an up‑to‑date copy of the
governing rules (that are not constituted by the law of the Commonwealth or by
unwritten rules) with APRA as soon as practicable after the governing rules are
varied or revoked and replaced.
(5) If:
(a) an RSE licensee applies for
registration of a registrable superannuation entity; and
(b) after the application is made but
before APRA decides the application, the risk management plan for the entity is
varied or revoked and replaced;
the RSE licensee must lodge an up‑to‑date copy of the risk
management plan with APRA as soon as practicable after the risk management plan
is varied or revoked and replaced.
(6) An application is taken not to comply
with this section if subsection (3), (4) or (5) is contravened.
Note: APRA cannot register an entity while the
application does not comply with this section: see paragraph 29M(1)(a).
Lapsed applications
(7) An application for registration lapses
if:
(a) it was made by an RSE licensee;
and
(b) the RSE licensee ceases to be an
RSE licensee before:
(i) APRA makes a decision
on the application for registration; or
(ii) if APRA’s decision
with respect to the application is subject to review under this Act—before the
review is finally determined or otherwise disposed of.
29LA
APRA may request further information
APRA may give an RSE licensee that has
applied for registration of a registrable superannuation entity a notice
requesting the RSE licensee to give APRA, in writing, specified information
relating to the application.
Note: A failure to give the requested information
delays the time within which APRA must decide the application: see paragraph
29LB(1)(b).
29LB
Period for deciding applications for registration
(1) APRA must decide an application by an RSE
licensee for registration of a registrable superannuation entity:
(a) within 21 days after receiving the
application; or
(b) if the applicant was requested to
provide information under section 29LA—within 21 days after:
(i) receiving from the RSE
licensee all of the information the RSE licensee was requested to provide under
that section; or
(ii) all notices relating
to that information being disposed of;
unless APRA extends the period for deciding the
application under subsection (2).
(2) APRA may extend the period for deciding
an application by an RSE licensee for registration of a registrable
superannuation entity by up to 7 days if APRA informs the RSE licensee of the
extension:
(a) in writing; and
(b) within the period in which it
would otherwise be required to decide the application under subsection (1).
(3) If APRA extends the period for deciding
an application for registration of a registrable superannuation entity, it must
decide the application within the extended period.
(4) If APRA
has not decided an application for registration of a registrable superannuation
entity by the end of the period by which it is required to decide the
application, APRA is taken to have decided, at the end of the last day of that
period, to refuse the application.
Division 3—Registration
29M
Registration of registrable superannuation entity
(1) APRA must register a registrable
superannuation entity if, and only if:
(a) the application for registration
complies with section 29L; and
(b) the applicant has provided to APRA
all information that the applicant was requested, under section 29LA, to
provide, or the request has been disposed of; and
(c) APRA is satisfied that nothing in
the governing rules of the entity conflicts with Part 6; and
(d) APRA is satisfied that the risk
management plan for the entity meets the requirements of section 29P; and
(e) the applicant for registration
holds an RSE licence that enables:
(i) if the applicant is a
body corporate—the body corporate; or
(ii) if the applicant is a
group of individual trustees—each member of the group;
to be a trustee of that entity.
(2) Otherwise APRA must refuse to register
the entity.
29MA
Notice of registration
If APRA registers a registrable
superannuation entity, APRA must notify the RSE licensee of the entity in
writing of the registration.
29MB
Documents required to bear ABNs
(1) After a registrable superannuation entity
is registered, the RSE licensee of the entity must ensure that the entity’s ABN
is included in:
(a) each document that the RSE
licensee gives to APRA that relates to the entity; and
(b) any other document in which the
RSE licensee identifies itself as the RSE licensee of the entity; and
(c) if the RSE licensee is a body
corporate—any document in which the body corporate identifies itself as a
trustee of the entity; and
(d) if the RSE licensee is a group of
individual trustees—any document that a member of the group gives to APRA or in
which a member of the group identifies itself as a trustee of the entity or as
a member of a group of individual trustees that are the RSE licensee of the
entity.
(2) However, an RSE licensee is not required
to comply with subsection (1) in respect of a particular document if the
RSE licensee has been given written approval by APRA not to ensure that the ABN
is included in that document or in a class of documents that includes that
document.
29MC
APRA to give notice of refusal of applications
If APRA refuses an application by an RSE
licensee for registration of a registrable superannuation entity, APRA must
take all reasonable steps to ensure that the RSE licensee is given a notice:
(a) informing it of APRA’s refusal of
the application; and
(b) setting out the reasons for the
refusal;
as soon as practicable after refusing the application.
Division 4—Cancelling registration
29N
Cancelling registration
(1) APRA must cancel the registration of a
registrable superannuation entity if a document that:
(a) is a reporting document within the
meaning of the Financial Sector (Collection of Data) Act 2001; and
(b) relates to the entity; and
(c) was given to APRA under that Act;
states that the entity has been wound up.
(1A) APRA may cancel the registration of a superannuation
entity that has become a self‑managed superannuation fund.
(2) APRA may cancel the registration of a
registrable superannuation entity if APRA is satisfied, on reasonable grounds,
that:
(a) the entity has no beneficiaries
and no assets; and
(b) there are no outstanding claims
against the entity for benefits or other payments; and
(c) other circumstances (if any)
prescribed by regulations made for the purposes of this paragraph exist.
(3) If APRA cancels the registration of a
registrable superannuation entity under subsection (2), APRA must take all
reasonable steps to ensure that the RSE licensee of the entity is given a
notice:
(a) stating that APRA has cancelled
the registration of the entity; and
(b) setting out the reasons for the cancellation;
as soon as practicable after cancelling the registration
of the entity.
Division 5—Risk management plans
Subdivision A—Contents of risk management plans
29P
Contents of risk management plans
(1) The risk management plan for a
registrable superannuation entity must set out reasonable measures and
procedures that the RSE licensee of the entity is to apply to identify, monitor
and manage the risks that arise in operating the entity.
(2) Without limiting subsection (1), the
risk management plan for a registrable superannuation entity must set out:
(a) reasonable measures and procedures
that the RSE licensee of the entity is to apply to identify, monitor and
manage:
(i) the risks to the
investment strategy relevant to the entity; and
(ii) the risks to the
entity’s financial position; and
(iii) the risks from
entering into outsourcing arrangements relating to the entity; and
(b) the circumstances in which an
audit of the risks referred to in this section is to be undertaken; and
(c) such other matters as are
prescribed by regulations made for the purposes of this paragraph.
(3) The risk management plan must be signed
by the RSE licensee of the entity.
Note: If the RSE licensee is a group of individual
trustees, the plan must be signed by each of the individual trustees: see
subsection 13A(6).
(4) The risk management plan must not by
reference incorporate provisions of any other document unless that other
document is available, without charge, to members of the public.
(5) A risk management plan does not fail to
comply with the above section merely because it reproduces information
contained in the risk management strategy of the RSE licensee of the entity or
in a risk management plan for another entity that has the same RSE licensee.
Subdivision B—Maintaining and reviewing risk management plans
29PA
Requirement to maintain and review risk management plans
(1) An RSE licensee of a registrable
superannuation entity that has been registered under this Part must:
(a) ensure that at all times the risk
management plan for the entity is up‑to‑date; and
(b) ensure that the risk management
plan for the entity is reviewed at least once each year to ensure that it
complies with section 29P; and
(c) modify, or replace, the risk
management plan for the entity in accordance with section 29PB if at any
time the trustee becomes aware that the risk management plan no longer complies
with section 29P.
(2) An RSE licensee of a registrable
superannuation entity must review the risk management plan for the entity
within 60 days after the RSE licensee:
(a) becomes the RSE licensee of the
entity (unless the entity is a registrable superannuation entity of which, at
the time of the application for an RSE license, the RSE licensee proposed to
become the RSE licensee); or
(b) becomes an acting trustee
appointed under Part 17 of a superannuation entity following the
suspension or removal of a former trustee of the entity under that Part.
However, this subsection does not apply if a review of the
risk management plan is due under paragraph (1)(b) within the 60 days
after the RSE licensee becomes the RSE licensee, or trustee, of the entity.
Note: Only a person may be appointed as an acting
trustee under Part 17: see section 134.
29PB
Modifications etc. to risk management plans
(1) An RSE licensee of a registrable
superannuation entity that has been registered under this Part may:
(a) modify the risk management plan
for the entity; or
(b) repeal the risk management plan
for the entity and replace it with a new risk management plan.
(2) However, after the modification or the
repeal and replacement, the risk management plan must comply with section 29P.
(3) APRA may direct an RSE licensee of a
registrable superannuation entity that has been registered under this Part to
modify the risk management plan for the entity, as set out in the direction, by
a specified time, to ensure that the plan complies with section 29P. The
direction is to be given by notice to the RSE licensee.
Note: A failure to comply with a direction may be an
offence: see section 29Q.
(4) A time specified in a direction given to
an RSE licensee under subsection (3) must be at least 14 days after the
direction is given to the RSE licensee.
29PC
Notification of modifications etc. to risk management plans
(1) If an RSE licensee modifies a risk
management plan for a registrable superannuation entity that has been
registered under this Part, the RSE licensee must give APRA:
(a) a copy of the modification; and
(b) a copy of the plan as modified;
within 14 days after making the modification.
(2) If an RSE licensee repeals a risk
management plan (the old plan) for a registrable superannuation
entity that has been registered under this Part and replaces it with another
risk management plan (the new plan), the RSE licensee must give
APRA:
(a) a copy of the new plan; and
(b) a written statement to the effect
that the new plan replaces the old plan;
within 14 days after the old plan is repealed.
(3) Any copy or statement given to APRA under
this section must be signed by the RSE licensee.
Note: If the RSE licensee is a group of individual
trustees, the copy or statement must be signed by each of the individual
trustees: see subsection 13A(6).
(4) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1),
(2) or (3).
Penalty: 50 penalty units.
(5) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1),
(2) or (3).
This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Subdivision C—Miscellaneous
29PD
Access to risk management plans
(1) If a member or unit holder of a
registrable superannuation entity that has been registered under this Part
requests a copy of the risk management plan for the entity, the RSE licensee of
the entity must make a copy of the plan available, without charge, to the
member or unit holder as soon as practicable after the RSE licensee receives
the request.
(2) If an employer‑sponsor of a registrable
superannuation entity that:
(a) has been registered under this
Part; and
(b) is a defined benefit fund;
requests a copy of the risk management plan for the
entity, the RSE licensee of the entity must make a copy of the plan available,
without charge, to the employer‑sponsor as soon as practicable after the RSE
licensee receives the request.
29PE
APRA to be given information
(1) APRA may give an RSE licensee of a
registrable superannuation entity that has been registered under this Part a
notice requesting the RSE licensee to give APRA, in a specified way, specified
information relating to the risk management plan for the entity by a specified
time that is reasonable in the circumstances.
(2) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) there has been a failure by the
RSE licensee to comply with the notice.
Penalty: 50 penalty units.
(3) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) there has been a failure by the
RSE licensee to comply with the notice.
This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Note 3: Sections 137.1 and 137.2 of the Criminal
Code also create offences for providing false or misleading information or
documents.
(4) Subsection (2) or (3) does not apply
if the RSE licensee has a reasonable excuse for the failure to comply with the
notice under subsection (1).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Division 6—Offences and self‑incrimination
29Q
Not complying with direction to modify risk management plan
(1) An RSE licensee must comply with a
direction given to it under section 29PB within the time specified in the
direction.
(2) A person commits an offence if:
(a) the person is:
(i) a body corporate that
is an RSE licensee; or
(ii) a member of a group of
individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1).
Penalty: 60 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29QA
Breach does not affect validity of issue of superannuation interests etc.
A breach of section 29Q does not
affect the validity of the issue of a superannuation interest or of any other
act.
Part 3—Operating standards
30
Object of Part
The object of this Part is to provide
for a system of prescribed standards applicable to:
(a) the operation of regulated
superannuation funds, approved deposit funds and pooled superannuation trusts;
and
(b) the trustees and RSE licensees of
those funds and trusts.
31
Operating standards for regulated superannuation funds
(1) The regulations may prescribe standards
applicable to the operation of regulated superannuation funds (funds)
and to trustees and RSE licensees of those funds.
(2) The standards that may be prescribed
include, but are not limited to, standards relating to the following matters:
(a) the persons who may contribute to
funds;
(b) the vesting in beneficiaries in
funds of benefits arising directly or indirectly from amounts contributed to
the funds;
(c) the amount of contributions that a
fund may accept;
(d) the circumstances in which a fund
may accept contributions;
(e) the form in which benefits may be
provided by funds;
(f) the actuarial standards that will
apply to funds;
(g) the preservation of benefits
arising directly or indirectly from amounts contributed to funds;
(h) the payment by funds of benefits
arising directly or indirectly from amounts contributed to the funds;
(i) the portability of benefits
arising directly or indirectly from amounts contributed to funds;
(j) the levels of benefits that may
be provided by funds and the levels of assets that may be held by funds;
(k) the application by funds of money
no longer required to meet payments of benefits to beneficiaries because the
beneficiaries have ceased to be entitled to receive those benefits;
(l) the investment of assets of funds
and the management of the investment;
(m) the number of trustees, and the
composition of boards or committees of trustees, of funds;
(ma) the requirements relating to fitness
and propriety for RSE licensees of funds and trustees of funds;
(n) the keeping and retention of
records in relation to funds;
(o) the financial and actuarial
reports to be prepared in relation to funds;
(p) the disclosure of information to
beneficiaries in funds;
(pa) the disclosure of information by a
trustee of a fund who is a member of a group of individual trustees to the
other trustees in that group;
(q) the disclosure of information
about funds to the Regulator;
(r) the disclosure of information
about funds to persons other than beneficiaries or the Regulator;
(s) the financial position of funds;
(sa) the outsourcing arrangements
relating to the operation of funds;
(sb) the adequacy of resources
(including human resources, technical resources, and financial resources) of, or
available to, trustees of funds;
(t) the funding and solvency of
funds;
(u) the winding‑up of funds.
32
Operating standards for approved deposit funds
(1) The regulations may prescribe standards
applicable to the operation of approved deposit funds (funds) and
to trustees and RSE licensees of those funds.
(2) The standards that may be prescribed
include, but are not limited to, standards relating to the following matters:
(a) the kinds of amounts that may be
deposited with funds;
(aa) the circumstances in which amounts
may be deposited with funds;
(b) the preservation of amounts
deposited with funds, and of earnings on such amounts;
(c) the
payment out of funds of amounts deposited with the funds, and of earnings on
such amounts;
(d) the portability of amounts
deposited with funds, and of earnings on such amounts;
(e) the form in which benefits may be
paid out of funds;
(f) the investment of assets of funds
and the management of the investment;
(fa) the requirements relating to
fitness and propriety for RSE licensees of funds and trustees of funds;
(g) the keeping and retention of
records in relation to funds;
(h) the financial and actuarial
reports to be prepared in relation to funds;
(i) the disclosure of information to
beneficiaries in funds;
(j) the disclosure of information
about funds to the Regulator;
(k) the disclosure of information
about funds to persons other than beneficiaries or the Regulator;
(l) the financial position of funds;
(la) the outsourcing arrangements
relating to the operation of funds;
(lb) the adequacy of resources
(including human resources, technical resources, and financial resources) of,
or available to, trustees of funds;
(m) the funding and solvency of funds;
(n) the winding‑up of funds.
33
Operating standards for pooled superannuation trusts
(1) The regulations may prescribe standards
applicable to the operation of pooled superannuation trusts (trusts)
and to trustees and RSE licensees of those trusts.
(2) The standards that may be prescribed
include, but are not limited to, standards relating to the following matters:
(aa) the circumstances in which units
in trusts may be acquired;
(a) the ownership and disposal of
units in trusts;
(b) the investment of assets of trusts
and the management of the investment;
(ba) the requirements relating to
fitness and propriety for RSE licensees of trusts and trustees of trusts;
(c) the persons who may be trustees of
trusts;
(d) the number of trustees, and the
composition of boards or committees of trustees, of trusts;
(e) the keeping and retention of
records in relation to trusts;
(f) the financial and actuarial
reports to be prepared in relation to trusts;
(g) the disclosure of information to
unit‑holders in trusts;
(h) the disclosure of information
about trusts to the Regulator;
(i) the disclosure of information
about trusts to persons other than unit‑holders or the Regulator;
(j) the financial position of trusts;
(ja) the outsourcing arrangements
relating to the operation of trusts;
(jb) the adequacy of resources
(including human resources, technical resources and financial resources) of, or
available to, trustees of trusts;
(k) the funding and solvency of
trusts.
34
Prescribed operating standards must be complied with
Standards must be complied with
(1) Each trustee of a superannuation entity
must ensure that the prescribed standards applicable to the operation of the
entity are complied with at all times.
Offence
(2) A person who intentionally or recklessly
contravenes subsection (1) is guilty of an offence punishable on
conviction by a fine not exceeding 100 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Validity of transaction not affected by contravention
of (1)
(3) A contravention of subsection (1)
does not affect the validity of a transaction.
Part 4—Accounts, audit and reporting obligations for superannuation
entities
35
Objects of Part
The objects of this Part are:
(a) to set out rules about the
accounts, statements and audits of superannuation entities; and
(b) to require certain reports and
returns relating to superannuation entities to be given to the Regulator.
35A
Accounting records (all superannuation entities)
Accounting records must be kept etc.
(1) Each trustee of a superannuation entity
must ensure that:
(a) accounting records that correctly
record and explain the transactions and financial position of the entity are
kept; and
(b) if the entity is a registrable
superannuation entity—the accounts of the entity are kept in a way that enables
the preparation of reporting documents referred to in section 13 of the Financial
Sector (Collection of Data) Act 2001; and
(c) if the entity is a self managed
superannuation fund—the accounting records of the entity are kept in a way that
enables the following to be prepared:
(i) the accounts and
statements of the entity referred to in section 35B;
(ii) the returns of the
entity referred to in section 35D; and
(d) the accounting records of the
entity are kept in a way that enables those accounts, statements and returns to
be conveniently and properly audited in accordance with this Act.
(2) If accounting records of a superannuation
entity are kept in accordance with subsection (1), each trustee of the
superannuation entity must ensure that:
(a) the records are retained for at
least 5 years after the end of the year of income to which the transactions
relate; and
(b) the records are kept either:
(i) in any case—in
Australia; or
(ii) in the case of a
registrable superannuation entity—in another country if the Regulator gives
written approval for the records to be kept in that country, and the conditions
(if any) specified in the approval are met; and
(c) the
records are kept:
(i) in writing in the
English language; or
(ii) in a form in which
they are readily accessible and readily convertible into writing in the English
language.
(2A) An approval given under
paragraph (2)(b) may be given subject to specified conditions.
Notification of address where accounting records are
kept
(2B) A trustee of a superannuation entity that
is a registrable superannuation entity must notify APRA, in the approved form,
of the address where the entity’s accounting records are kept:
(a) if, immediately before the
commencement of this subsection, the entity is registered under
section 29M—within 28 days after that commencement; or
(b) otherwise—within 28 days after the
entity is registered under that section.
(2C) If:
(a) a trustee of a superannuation
entity has notified APRA of the address where the entity’s accounting records
are kept; and
(b) the entity moves the accounting
records to a new address;
a trustee of the entity must notify APRA, in the approved
form, of the new address where the accounting records are kept.
(2D) The notification must be given within 28
days after the day on which the accounting records are moved to the new
address.
Offences
(3) A trustee commits an offence if the
trustee contravenes subsection (1) or (2).
Penalty: 100 penalty units.
(4) A trustee commits an offence if the
trustee contravenes subsection (1) or (2). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
35B
Accounts and statements (self‑managed superannuation funds only)
(1) Each trustee of a superannuation entity
that is a self managed superannuation fund must, in respect of each year of
income of the fund, ensure that the following accounts and statements are
prepared in respect of the entity:
(a) except where the regulations
provide that this paragraph does not apply—a statement of financial position;
(b) except where the regulations
provide that this paragraph does not apply—an operating statement;
(c) the accounts and statements
specified in the regulations.
(2) The regulations may provide for or in
relation to the preparation of accounts and statements covered by
subsection (1). If the regulations do so, the accounts and statements
covered by subsection (1) must be prepared in accordance with the regulations.
(3) The accounts and statements prepared in
accordance with subsection (1) must be signed as follows:
(a) if there is a single corporate
trustee—by:
(i) if there is only one
director of the corporate trustee—that director; or
(ii) otherwise—at least 2
directors of the corporate trustee; or
(b) if there is a group of individual
trustees—by at least 2 of those trustees.
(4) Each trustee must ensure that the
accounts and statements prepared in accordance with subsection (1) are
retained for a period of 5 years after the end of the year of income to which
they relate.
(5) A person commits an offence if the person
contravenes this section.
Penalty: 100 penalty units.
(6) A person commits an offence if the person
contravenes this section. This is an offence of strict liability.
Penalty: 50 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
35C
Audit of accounts and statements (all superannuation entities)
(1) For each year of income, each trustee of
a superannuation entity must ensure that an approved auditor is appointed to
give the trustee or trustees a report, in the approved form, of the operations
of the entity, and the RSE licensee (if any) of the entity, for that year. The
appointment must be made within whichever of the periods set out in the
regulations applies to the entity.
(1A) For the purposes of subsection (1), a
person is not an approved auditor, in relation to a superannuation entity, if
the person is disqualified from being or acting as an approved auditor of that
superannuation entity under section 130D.
(2) If an auditor requests, in writing, a
trustee of a superannuation entity to give the auditor a document, each trustee
of the entity must ensure that the document is given to the auditor within 14
days of the request being made. Only documents that are relevant to the
preparation of the report may be requested.
(3) A trustee commits an offence if the
trustee contravenes subsection (1) or (2).
Penalty: Imprisonment for 2 years.
(4) A trustee
commits an offence if the trustee contravenes subsection (1) or (2). This
is an offence of strict liability.
Penalty: 50 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) Without limiting subsection (1), an
approved form:
(a) must, if it is approved for a
registrable superannuation entity, either:
(i) relate solely to the
audit of financial statements given to APRA under the Financial Sector
(Collection of Data) Act 2001 and prepared in respect of a year of income;
or
(ii) relate only to the
audit of those statements and of any other accounts and statements, prepared in
respect of a year of income, that are identified in the form; and
(b) must, if it is approved for a
superannuation entity that is a self managed superannuation fund—either:
(i) relate solely to the
audit of the accounts and statements referred to in subsection 35B(1) and
prepared in respect of a year of income; or
(ii) relate only to the
audit of those accounts and statements and of any other accounts and
statements, prepared in respect of a year of income, that are identified in the
form; and
(c) must include a statement by the
auditor as to whether, in the auditor’s opinion, each trustee of the entity and
the RSE licensee (if any) of the entity has, during the year of income,
complied with the provisions of:
(i) this Act and the
regulations; and
(ii) if the entity is a
registrable superannuation entity—the Financial Sector (Collection of Data)
Act 2001, the Corporations Act 2001 and the regulations under that
Act;
that are identified in the form;
and
(d) must, if it is approved for a
registrable superannuation entity that is registered under Part 2B,
include a statement by the auditor as to whether, in the opinion of the
auditor, the RSE licensee of the entity:
(i) has complied with each
risk management plan for the entity that applied during that year; and
(ii) has adequate systems
to ensure future compliance with any risk management plan for the entity; and
(iii) has complied with each
risk management strategy that applied to the RSE licensee during that year in
relation to risks arising from any activities, and proposed activities, as RSE
licensee of the entity, and all other activities, or proposed activities,
relevant to those activities; and
(iv) has adequate systems to
ensure future compliance with the risk management strategy for the RSE licensee
in relation to future risks arising from any proposed future activities as RSE
licensee of the entity, and all other proposed future activities relevant to
those activities.
(6) The auditor must give the report to each
trustee of the entity within the prescribed period after the end of the year of
income.
(7) The auditor commits an offence if the
auditor contravenes subsection (6).
Penalty: Imprisonment for 6 months.
(8) The auditor commits an offence if the
auditor contravenes subsection (6). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
35D
Trustee to lodge annual returns (self‑managed superannuation funds only)
Lodgment
(1) Each trustee of a superannuation entity
that was a self managed superannuation fund at any time during a year of income
must, within the reporting period, or within such longer period as the
Commissioner of Taxation allows, ensure that the Commissioner of Taxation is
given a return under this section.
Period for lodgment
(2) The reporting period is the
period that begins at the end of the year of income and whose length is:
(a) prescribed by the regulations for
the purposes of this paragraph; or
(b) if the length of the period is not
prescribed—specified, by legislative instrument, by the Commissioner of
Taxation.
Form of return
(3) The return
must:
(a) be in the approved form; and
(b) contain the information required
by the form in relation to the fund in respect of that year of income or in
relation to another year of income, or both.
Note: The approved form of return may require a
trustee to set out the tax file number of the entity. See subsection 299U(2).
(4) A person commits an offence if the person
contravenes this section.
Penalty: 50 penalty units.
(5) A person commits an offence if the person
contravenes this section. This is an offence of strict liability.
Penalty: 25 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
36
Trustee to give copy of audit report to APRA (registrable superannuation
entities only)
Lodgment
(1) Each trustee of a registrable
superannuation entity must, within the prescribed period after the year of
income, ensure that APRA is given a copy of the report given to a trustee of
the entity by an approved auditor under section 35C in relation to the
entity, and any RSE licensee of the entity, in respect of that year of income,
certified to be a true copy of the report by:
(a) if the trustee is a body
corporate—a responsible officer of the body corporate; or
(b) if the trustee is a member of a
group of individual trustees—at least one of those trustees; or
(c) in any other case—the trustee.
Note: The Financial Sector (Collection of Data)
Act 2001 makes provision for annual returns and other reporting documents
to be given by trustees to APRA.
(2) A trustee
commits an offence if the trustee contravenes subsection (1).
Penalty: 50 penalty units.
(3) A trustee
commits an offence if the trustee contravenes subsection (1). This is an
offence of strict liability.
Penalty: 25 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Part 5—Notices about complying fund status
Division 1—Objects and interpretation
37
Objects of Part
The objects of this Part are:
(a) to provide for a system of notices
about complying fund status in relation to a year of income (see Division 2);
and
(b) to provide for those notices to be
used to determine complying fund status for tax purposes (see Division 3).
38
Meaning of entity
In this Part:
entity means a fund, scheme or trust.
Division 2—The Regulator may give notices about complying fund status
38A Meaning of regulatory provision
In this Division:
regulatory provision, in relation to a
superannuation entity, means:
(a) a provision of this Act or the
regulations; or
(aa) a provision of the Financial
Sector (Collection of Data) Act 2001; or
(ab) for a superannuation entity that is
a self managed superannuation fund—any of the following provisions in
Schedule 1 to the Taxation Administration Act 1953:
(i) subsections 284‑75(1)
and (4) and section 284‑95;
(ii) Division 390; or
(b) any of the following provisions of
the Corporations Act 2001 as applying in relation to financial products
(within the meaning of Chapter 7 of that Act) that are interests in the
superannuation entity:
(i) subsection 1013K(1) or
(2);
(ii) subsection 1016A(2) or
(3);
(iii) subsection 1017B(1);
(iv) subsection 1017C(2),
(3) or (5);
(v) subsection 1017D(1);
(vi) subsection 1017DA(3);
(vii) subsection 1017E(3) or
(4);
(viii) subsection 1020E(8) or
(9);
(ix) subsection 1021C(1) or
(3);
(x) subsection 1021D(1);
(xi) subsection 1021E(1);
(xii) subsection 1021O(1) or
(3);
(xiii) section 1041E;
(xiv) subsection 1041F(1);
(xv) subsection 1043A(1) or
(2);
(xvi) any other provisions
that are specified in regulations made for the purposes of this subparagraph.
39
Meaning of contravention
(1) For the purposes of this Division, a
contravention of a regulatory provision is to be ignored unless the
contravention is:
(a) an offence; or
(b) a contravention of a civil penalty
provision; or
(c) a contravention of a provision
mentioned in paragraph 38A(ab).
(1A) In relation to a regulatory provision that
states that a person commits an offence if they engage, or fail to engage, in
specified conduct, a person is, for the purposes of this Division, taken to
contravene the provision if the person engages, or fails to engage, in that
conduct.
(1B) To avoid doubt, for the purposes of this
Division, treat conduct giving rise to an administrative penalty under subsection
284‑75(1) or (4) in Schedule 1 to the Taxation Administration Act 1953
as a contravention of that subsection.
(2) For the purposes of this Division, it is
sufficient if a contravention is established on the balance of probabilities.
40
Notices by the Regulator to trustee
Notice about complying fund status
(1) The Regulator may give a written notice
to a trustee of an entity stating:
(a) whether the entity is or is not a
complying superannuation fund; or
(b) whether the entity is or is not a
complying approved deposit fund; or
(c) whether the entity is or is not a
pooled superannuation trust;
as the case may be, in relation to a year of income
specified in the notice.
Reasons
(2) If the Regulator gives a notice to a
trustee of an entity stating that:
(a) the entity is not a complying
superannuation fund; or
(b) the entity is not a complying
approved deposit fund; or
(c) the entity is not a pooled
superannuation trust;
as the case may be, in relation to a year of income, the
notice must set out the reasons why the Regulator so stated.
Commissioner of Taxation to be told about notice
(3) When the
APRA gives a notice under this section, APRA must give particulars of the
notice to the Commissioner of Taxation.
Note: A statement of the tax file number of the
entity may accompany the particulars of the notice. See subsection 299U(3).
Revocation
(4) If:
(a) the Regulator gives a notice under
this section (the original notice) to a trustee of an entity
stating that:
(i) the entity is a
complying superannuation fund; or
(ii) the entity is a
complying approved deposit fund; or
(iii) the entity is a pooled
superannuation trust;
as the case may be, in relation
to a year of income; and
(b) the Regulator subsequently gives a
notice under this section (the second notice) to a trustee of the
entity stating that:
(i) the entity is not a
complying superannuation fund; or
(ii) the entity is not a
complying approved deposit fund; or
(iii) the entity is not a
pooled superannuation trust;
as the case may be, in relation
to the year of income;
the second notice is taken to revoke the original notice.
Note: Because “the Regulator” is whichever of APRA
or the Commissioner of Taxation is administering this provision in respect of a
fund, a notice could initially be given to a fund by APRA under paragraph
40(4)(a), and later the Commissioner of Taxation could give a notice to the
same fund under paragraph 40(4)(b). This is because the fund could have become
a self managed superannuation fund after the first notice was given.
41
When the Regulator obliged to give notice of compliance
(1) Except as provided by subsection (2),
the Regulator is not obliged to give a notice under section 40.
(2) The Regulator must give a notice under
section 40 to a trustee of an entity stating that the entity is a
complying superannuation fund, a complying approved deposit fund or a pooled
superannuation trust, as the case may be, in relation to a year of income (the current
year of income) if:
(a) the entity is a complying
superannuation fund, a complying approved deposit fund or a pooled
superannuation trust, as the case requires, in relation to the current year of
income; and
(b) either:
(i) the Regulator has not
given a notice to a trustee of the entity under section 40 stating that
the entity is a complying superannuation fund, a complying approved deposit
fund or a pooled superannuation trust, as the case requires, in relation to a
previous year of income; or
(ii) both:
(A) the
Regulator has given a notice to a trustee of the entity under section 40
stating that the entity is not a complying superannuation fund, is not a
complying approved deposit fund or is not a pooled superannuation trust, as the
case requires, in relation to a previous year of income; and
(B) the
Regulator has not given a notice to a trustee of the entity under section 40
stating that the fund is a complying superannuation fund, a complying approved
deposit fund or a pooled superannuation trust, as the case requires, in
relation to a year of income that is later than that previous year of income
and earlier than the current year of income.
(3) Despite section 2, a previous year
mentioned in subsection (2) may be a year of income earlier than the 1994‑95
year of income (see section 49). However, despite section 49, for the
purposes of the application of subsection (2) to a complying
superannuation fund, if the fund was not a regulated superannuation fund at all
times during the current year of income when the fund was in existence, paragraph (2)(b)
does not apply unless the previous year of income is the 1994‑95 year of income
or a later year of income.
(4) For the purposes of this section, if a
notice under section 40 is revoked, or the decision to give the notice is
set aside, the notice is taken never to have been given.
42
Complying superannuation fund
(1) An entity
is a complying superannuation fund in relation to a year of income for the
purposes of this Division if:
(a) either:
(i) the entity was a
resident regulated superannuation fund at all times during the year of income
when the entity was in existence; or
(ii) the entity was a
resident regulated superannuation fund at all times during the year of income
when the entity was in existence other than a time, before it became a resident
regulated superannuation fund, when the entity was a resident approved deposit
fund; and
(b) either of the following conditions
is satisfied:
(i) no trustee of the
entity contravened any of the regulatory provisions in relation to the entity
in respect of the year of income;
(ii) both:
(A) a
trustee of the entity contravened one or more of the regulatory provisions in
relation to the entity in respect of the year of income on one or more
occasions; and
(B) the
entity did not fail the culpability test set out in subsection (1A) in
relation to any of those contraventions; and
(c) the entity was not a self managed
superannuation fund at any time during the year of income.
(1AA) An entity is also a complying superannuation
fund in relation to the 1994‑95 year of income or a later year of income if:
(a) the entity:
(i) is a superannuation
fund that came into existence during the year of income; or
(ii) was a resident
approved deposit fund that became a superannuation fund during the year of
income; and
(b) the
entity complied with subsections 19(2) to (4):
(i) within 60 days after
the day on which it came into existence or became a superannuation fund, as the
case may be; or
(ii) within such further
period, if any, as APRA (whether before or after the end of the period of 60
days) allows; and
(c) either of the following conditions
is satisfied:
(i) no trustee of the
entity contravened any of the regulatory provisions in relation to the entity
in respect of the whole of the period (the pre‑lodgment period)
that began when the entity came into existence or became a superannuation fund,
as the case may be, and ended when the entity complied with subsections 19(2) to (4);
(ii) a trustee of the
entity contravened one or more of the regulatory provisions in relation to the
entity in respect of the pre‑lodgment period on one or more occasions but APRA
is satisfied that, because of special circumstances that existed in relation to
the fund during the pre‑lodgment period, it would be reasonable for the
fund to be treated as if it had satisfied the regulatory provisions; and
(d) the entity was a resident
regulated superannuation fund at all times during the part of the year of
income occurring after the end of the pre‑lodgment period; and
(da) the entity was not a self managed
superannuation fund at any time during the year of income; and
(e) either of the conditions stated in
paragraph (1)(b) is satisfied in relation to the entity in respect of the
part of the year of income occurring after the end of the pre‑lodgment period.
(1AB) In determining for the purpose of paragraph (1AA)(c)
whether any of the regulatory provisions were contravened in respect of the
entity in respect of the pre‑lodgment period, the regulatory provisions are
taken to have applied in relation to the entity in respect of that period as if
the entity were a resident regulated superannuation fund during that period.
(1AC) An entity is
also a complying superannuation fund in relation to the 1994‑95 year of income
or a later year of income if:
(a) the trustee, or the trustees, of
the entity have purported to make an election under subsection 19(4); and
(b) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with
within 28 days after a trustee of the entity finds out (whether by written
notice from APRA or otherwise) that they were not complied with, or within such
further period, if any, as APRA (whether before or after the end of the period
of 28 days) allows; and
(c) except where a trustee of the
entity received written notice from APRA about the non‑compliance—a trustee of
the entity tells APRA in writing of the compliance within 7 days after the
requirements are complied with or within such further period, if any, as APRA
(whether before or after the end of the period of 7 days) allows; and
(d) either
of the following conditions is satisfied:
(i) no trustee of the
entity contravened any of the regulatory provisions in relation to the entity
in respect of the whole of the period (the rectification period)
that began when the trustee, or the trustees, of the entity lodged the
purported election under subsection 19(4) and ended when the entity complied
with subsections 19(2) to (4);
(ii) a trustee of the
entity contravened one or more of the regulatory provisions in relation to the
entity in respect of the rectification period on one or more occasions but APRA
is satisfied that, because of special circumstances that existed in relation to
the fund during the rectification period, it would be reasonable for the fund
to be treated as if it had satisfied the regulatory provisions; and
(e) if the fund was in existence
before the beginning of its 1994‑95 year of income—under regulations made for
the purposes of section 50, the fund is treated as if it had satisfied the
transitional superannuation fund conditions at all times during the period that
began at the beginning of the fund’s 1994‑95 year of income and ended when the
trustee, or the trustees, of the entity lodged the purported election under
subsection 19(4); and
(f) the entity was a resident
regulated superannuation fund at all times during the part of the year of
income occurring after the end of the rectification period; and
(fa) the entity was not a self managed
superannuation fund at any time during the year of income; and
(g) either of the conditions stated in
paragraph (1)(b) is satisfied in relation to the entity in respect of the
part of the year of income occurring after the end of the rectification period.
(1AD) In determining for the purpose of paragraph (1AC)(d)
whether any of the regulatory provisions were contravened in respect of the
entity in respect of the rectification period, the regulatory provisions are
taken to have applied in relation to the entity in respect of that period as if
the entity were a resident regulated superannuation fund during that period.
Note: Subsection 50(2) provides that certain
superannuation funds that have been wound up or terminated are taken to have
been complying superannuation funds before the winding up or termination.
(1A) For the
purposes of subparagraph (1)(b)(ii), an entity fails the culpability test
in relation to a particular contravention of a regulatory provision if:
(a) both:
(i) all of the members of
the entity were in any way directly or indirectly knowingly concerned in, or
party to, the contravention; and
(ii) the Regulator, after
considering:
(A) the
taxation consequences that would arise if the entity were to be treated as a
non‑complying superannuation fund for the purposes of the Income Tax
Assessment Act 1997 in relation to the year of income concerned; and
(B) the
seriousness of the contravention; and
(C) all
other relevant circumstances;
thinks that a notice
should be given stating that the entity is not a complying superannuation fund
in relation to the year of income concerned; or
(b) all of the following conditions
are satisfied:
(i) one or more members of
the entity were in any way directly or indirectly knowingly concerned in, or
party to, the contravention;
(ii) one or more members of
the entity (the innocent members) were not in any way directly or
indirectly knowingly concerned in, or party to, the contravention;
(iii) none of the innocent
members would suffer any substantial financial detriment if the entity were to
be treated as a non‑complying superannuation fund for the purposes of the Income
Tax Assessment Act 1997 in relation to the year of income concerned;
(iv) the
Regulator, after considering:
(A) the
taxation consequences that would arise if the entity were to be treated as a
non‑complying superannuation fund for the purposes of the Income Tax
Assessment Act 1997 in relation to the year of income concerned; and
(B) the
seriousness of the contravention; and
(C) all
other relevant circumstances;
thinks that a notice
should be given stating that the entity is not a complying superannuation fund
in relation to the year of income concerned.
Note: The culpability test is still relevant to a
fund that has been a self managed fund during only part of a year of income—see
subparagraph 42A(2)(b)(ii), paragraph 42A(3)(g) and subparagraph 42A(4)(f)(ii).
(1B) For the purposes of subsection (1A),
if there is a question whether a person was in any way directly or indirectly
knowingly concerned in, or party to, a particular contravention, that question
may be decided on the balance of probabilities.
(2) In this section, a reference to a member
of an entity means, if the entity is an approved deposit fund, a beneficiary of
the fund.
(3) If a person or body is specified in the
regulations for the purposes of subsection 19(4), a reference to APRA in subparagraph (1AA)(b)(ii)
or (c)(ii) or subsection (1AC) of this section is taken to be a reference
to that person or body.
42A
Complying superannuation fund—fund that has been a self managed superannuation
fund at any time during a year
Entity that was a self managed superannuation fund
throughout a year of income
(1) An entity that was a self managed
superannuation fund at all times during a year of income is a complying
superannuation fund in relation to that year of income for the purposes of this
Division if:
(a) either:
(i) the entity was a
resident regulated superannuation fund at all times during the year of income
when the entity was in existence; or
(ii) the entity was a
resident regulated superannuation fund at all times during the year of income
when the entity was in existence other than a time, before it became a resident
regulated superannuation fund, when the entity was a resident approved deposit
fund; and
(b) the entity passes the test in subsection (5)
in relation to the year of income.
Entity that was a self managed superannuation fund
during only part of a year of income
(2) An entity that was a self managed
superannuation fund during a part or parts of a year of income is a complying
superannuation fund in relation to that year of income for the purposes of this
Division if:
(a) either:
(i) the entity was a
resident regulated superannuation fund at all times during the year of income
when the entity was in existence; or
(ii) the entity was a
resident regulated superannuation fund at all times during the year of income
when the entity was in existence other than a time, before it became a resident
regulated superannuation fund, when the entity was a resident approved deposit
fund; and
(b) both:
(i) the entity passes the
test in subsection (5) in respect of the part or parts of the year of
income during which the entity was a self managed superannuation fund; and
(ii) if a trustee of the
entity contravened one or more of the regulatory provisions in relation to the
entity in respect of any other part or parts of the year of income—the entity
did not fail the culpability test set out in subsection 42(1A) in relation to
any of those contraventions.
Funds coming into existence during year of income etc.
(3) An entity that:
(a) is a superannuation fund that came
into existence during the year of income and at that time or later in the year
of income became a self managed superannuation fund; or
(b) was a resident approved deposit
fund that became a superannuation fund during the year of income;
is also a complying superannuation fund in relation to the
year of income if:
(c) the entity complied with
subsections 19(2) to (4):
(i) within 60 days after
the day on which it came into existence or became a superannuation fund, as the
case may be; or
(ii) within such further
period, if any, as APRA (whether before or after the end of the period of 60
days) allows; and
(d) either of the following conditions
is satisfied:
(i) no trustee of the
entity contravened any of the regulatory provisions in relation to the entity
during the whole of the period (the pre‑lodgment period) that
began when the entity came into existence or became a superannuation fund, as
the case may be, and ended when the entity complied with subsections 19(2) to (4);
(ii) a trustee of the
entity contravened one or more of the regulatory provisions in relation to the
entity during the pre‑lodgment period on one or more occasions but APRA is
satisfied that, because of special circumstances that existed in relation to
the fund during the pre‑lodgment period, it would be reasonable for the fund to
be treated as if it had satisfied the regulatory provisions; and
(e) the entity was a resident
regulated superannuation fund at all times during the part of the year of
income occurring after the pre‑lodgment period; and
after the pre‑lodgment period:
(f) the entity passed the test in subsection (5)
in respect of the part or parts of the year of income, occurring after the pre‑lodgment
period, during which the entity was a self managed superannuation fund; and
(g) if a trustee of the entity
contravened one or more of the regulatory provisions in relation to the entity
in respect of any part or parts of the year of income, occurring after the pre‑lodgment
period, during which the entity was not a self managed superannuation fund—the
entity did not fail the culpability test set out in subsection 42(1A) in
relation to any of those contraventions.
Trustee makes an election
(4) An entity that was a self managed
superannuation fund at some time, or at all times, during a year of income is
also a complying superannuation fund in relation to the year of income if:
(a) the trustee, or the trustees, of
the entity have purported to make an election under subsection 19(4); and
(b) if, when the election was made,
the requirements of subsections 19(2) to (4) are not complied with:
(i) the requirements of
subsections 19(2) to (4) (to the extent that they have not already been
complied with) are complied with within 28 days after a trustee of the entity
finds out (whether by written notice from APRA or otherwise) that they were not
complied with, or within such further period, if any, as APRA (whether before
or after the end of the period of 28 days) allows; and
(ii) except where a trustee
of the entity received written notice from APRA about the non‑compliance—a
trustee of the entity tells APRA in writing of the compliance within 7 days
after the requirements are complied with or within such further period, if any,
as APRA (whether before or after the end of the period of 7 days) allows; and
(c) either
of the following conditions is satisfied:
(i) no trustee of the
entity contravened any of the regulatory provisions in relation to the entity
during the whole of the period (the rectification period) that
began when the trustee, or the trustees, of the entity lodged the purported
election under subsection 19(4) and ended when the entity complied with
subsections 19(2) to (4);
(ii) a trustee of the
entity contravened one or more of the regulatory provisions in relation to the
entity during the rectification period on one or more occasions but APRA is
satisfied that, because of special circumstances that existed in relation to
the fund during the rectification period, it would be reasonable for the fund
to be treated as if it had satisfied the regulatory provisions; and
(d) if the fund was in existence
before the beginning of its 1994‑95 year of income—under regulations made for
the purposes of section 50, the fund is treated as if it had satisfied the
transitional superannuation fund conditions at all times during the period that
began at the beginning of the fund’s 1994‑95 year of income and ended when the
trustee, or the trustees, of the entity lodged the purported election under
subsection 19(4); and
(e) the entity was a resident
regulated superannuation fund at all times during the part of the year of
income occurring after the end of the rectification period; and
(f) in respect of the part of the
year of income occurring after the end of the rectification period, both:
(i) the entity passed the
test in subsection (5) in respect of the part or parts of the year of
income occurring after the end of the rectification period, during which the
entity was a self managed superannuation fund; and
(ii) if a trustee of the
entity contravened one or more of the regulatory provisions in relation to the
entity in respect of any other part or parts of the year of income occurring
after the end of the rectification period, during which the entity was not a
self managed superannuation fund—the entity did not fail the culpability test
set out in subsection 42(1A) in relation to any of those contraventions.
Circumstances in which entity passes the test in this
subsection
(5) An entity passes the test in this
subsection in relation to a year of income or part of a year of income if:
(a) no trustee of the entity
contravened any of the regulatory provisions in relation to the entity during
the year of income or the part of the year of income; or
(b) if a trustee of the entity
contravened one or more of the regulatory provisions in relation to the entity
during the year of income or the part of the year of income, the Regulator,
after considering:
(i) the taxation
consequences that would arise if the entity were to be treated as a non‑complying
superannuation fund for the purposes of the Income Tax Assessment Act 1997
in relation to the year of income concerned; and
(ii) the seriousness of the
contravention or contraventions; and
(iii) all other relevant
circumstances;
thinks that a notice should
nevertheless be given stating that the entity is a complying superannuation
fund in relation to the year of income concerned.
Determining whether contravention
(6) In determining for the purposes of this
section whether any of the regulatory provisions were contravened in respect of
the entity in respect of the pre‑lodgment period or the rectification period,
the regulatory provisions are taken to have applied in relation to the entity
in respect of that period as if the entity were a resident regulated
superannuation fund during that period.
References to APRA
(7) If a person or body is specified in the
regulations for the purposes of subsection 19(4), a reference to APRA in subparagraph (3)(c)(ii),
(3)(d)(ii), or subsection (4) is taken to be a reference to that person or
body.
43
Complying approved deposit fund
An entity
is a complying approved deposit fund in relation to a year of income for the
purposes of this Division if:
(a) at all times during the year of
income when the entity was in existence, the entity was a resident approved
deposit fund; and
(b) any of the following conditions is
satisfied:
(i) the trustee did not
contravene any of the regulatory provisions in relation to the entity in
respect of the year of income;
(ii) both:
(A) the
trustee contravened one or more of the regulatory provisions in relation to the
entity in respect of the year of income on one or more occasions; and
(B) each
contravention was rectified within a period of 30 days after the trustee became
aware of the contravention or within such further period as APRA allows;
(iii) both:
(A) the
trustee contravened one or more of the regulatory provisions in relation to the
entity in respect of the year of income on one or more occasions; and
(B) APRA is
satisfied that the seriousness or frequency, or both, of the contraventions
does not warrant the giving of a notice stating that the entity is not a
complying approved deposit fund in relation to the year of income;
(iv) APRA, after considering
all relevant circumstances, thinks that a notice should be given stating that
the entity is a complying approved deposit fund in relation to the year of
income.
44
Pooled superannuation trust
An entity is a pooled superannuation
trust in relation to a year of income for the purposes of this Division if:
(a) at all times during the year of
income when the entity was in existence, the entity was a pooled superannuation
trust; and
(b) any of the following conditions is
satisfied:
(i) the trustee did not
contravene any of the regulatory provisions in relation to the entity in
respect of the year of income;
(ii) both:
(A) the
trustee contravened one or more of the regulatory provisions in relation to the
entity in respect of the year of income on one or more occasions; and
(B) each
contravention was rectified within a period of 30 days after the trustee became
aware of the contravention or such further period as APRA allows;
(iii) both:
(A) the
trustee contravened one or more of the regulatory provisions in relation to the
entity in respect of the year of income on one or more occasions; and
(B) APRA is
satisfied that the seriousness or frequency, or both, of the contraventions
does not warrant the giving of a notice stating that the entity is not a pooled
superannuation trust in relation to the year of income;
(iv) APRA, after considering
all relevant circumstances, thinks that a notice should be given stating that
the entity is a pooled superannuation trust in relation to the year of income.
Division 3—Complying fund status for tax purposes
45
Complying superannuation fund
(1) A fund is a complying superannuation fund
for the purposes of the Income Tax Assessment Act in relation to a year of
income (the current year of income) if, and only if:
(a) the Regulator has given a notice
to a trustee of the fund under section 40 stating that the fund is a
complying superannuation fund in relation to the current year of income; or
(b) the Regulator has given a notice
to a trustee of the fund under section 40 stating that the fund is a
complying superannuation fund in relation to a previous year of income and has
not given a notice to a trustee of the fund under that section stating that the
fund was not a complying superannuation fund in relation to:
(i) the current year of
income; or
(ii) a year of income that
is:
(A) later
than that previous year of income; and
(B) earlier
than the current year of income.
(2) Despite section 2, the previous year
mentioned in paragraph (1)(b) may be a year of income earlier than the
1994‑95 year of income (see section 49). However, despite section 49,
if the fund was not a regulated superannuation fund at all times during the
current year of income when the fund was in existence, paragraph (1)(b)
does not apply unless the previous year of income is the 1994‑95 year of income
or a later year of income.
(3) For the purposes of this section, if a
notice under section 40 is revoked, or the decision to give the notice is
set aside, the notice is taken never to have been given.
(4) Section 170 of the Income Tax
Assessment Act does not prevent the amendment of an assessment at any time for
the purposes of giving effect to subsection (3).
(5) For the purposes of this section, if a notice
under section 40 is given in relation to a fund in relation to a year of
income, the notice is taken to have been given at the beginning of the year of
income.
(6) Despite subsection (1), if, at all
times during a year of income when a fund was in existence, the fund was, or
was part of, an exempt public sector superannuation scheme, the fund is a
complying superannuation fund in relation to the year of income for the
purposes of the Income Tax Assessment Act.
46
Complying superannuation scheme—superannuation guarantee charge
An exempt public sector superannuation
scheme is taken to be a complying superannuation scheme for the purposes of the
Superannuation Guarantee (Administration) Act 1992.
47
Complying approved deposit fund
(1) A fund is a complying approved deposit
fund for the purposes of the Income Tax Assessment Act in relation to a year of
income (the current year of income) if, and only if:
(a) APRA has given a notice to the
trustee under section 40 stating that the fund is a complying approved
deposit fund in relation to the current year of income; or
(b) APRA has given a notice to the
trustee under section 40 stating that the fund is a complying approved
deposit fund in relation to a previous year of income and has not given a
notice to the trustee under that section stating that the fund was not a
complying approved deposit fund in relation to:
(i) the current year of
income; or
(ii) a year of income that
is:
(A) later
than that previous year of income; and
(B) earlier
than the current year of income.
(2) Despite section 2, the previous year
mentioned in paragraph (1)(b) may be a year of income earlier than the
1994‑95 year of income (see section 49).
(3) For the purposes of this section, if a
notice under section 40 is revoked, or the decision to give the notice is
set aside, the notice is taken never to have been given.
(4) Section 170 of the Income Tax
Assessment Act does not prevent the amendment of an assessment at any time for
the purposes of giving effect to subsection (3).
(5) For the purposes of this section, if a
notice under section 40 is given in relation to a fund in relation to a
year of income, the notice is taken to have been given at the beginning of the
year of income.
48
Pooled superannuation trust
(1) A unit trust is a pooled superannuation
trust for the purposes of the Income Tax Assessment Act in relation to a year
of income (the current year of income) if, and only if:
(a) APRA has given a notice to the
trustee under section 40 stating that the trust is a pooled superannuation
trust in relation to the current year of income; or
(b) APRA has given a notice to the
trustee under section 40 stating that the trust is a pooled superannuation
trust in relation to a previous year of income and has not given a notice to
the trustee under that section stating that the trust was not a pooled
superannuation trust in relation to:
(i) the current year of
income; or
(ii) a year of income that
is:
(A) later
than that previous year of income; and
(B) earlier
than the current year of income.
(2) Despite section 2, the previous year
mentioned in paragraph (1)(b) may be a year of income earlier than the
1994‑95 year of income (see section 49).
(3) For the purposes of this section, if a
notice under section 40 is revoked, or the decision to give the notice is
set aside, the notice is taken never to have been given.
(4) Section 170 of the Income Tax
Assessment Act does not prevent the amendment of an assessment at any time for
the purposes of giving effect to subsection (3).
(5) For the purposes of this section, if a
notice under section 40 is given in relation to a trust in relation to a
year of income, the notice is taken to have been given at the beginning of the
year of income.
49
Transitional—notices under the repealed provisions of the Occupational
Superannuation Standards Act 1987
Superannuation funds—positive
(1) For the
purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under repealed section 12
or 13 of the Occupational Superannuation Standards Act 1987 stated that
the Commissioner is satisfied that:
(i) a fund satisfied the
superannuation fund conditions in relation to a year of income; or
(ii) a fund should be
treated as if it had satisfied the superannuation fund conditions in relation
to a year of income; and
(b) the year of income is the 1993‑94
year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40
stating that the fund is a complying superannuation fund in relation to the
year of income.
ADFs—positive
(2) For the purposes of paragraph 41(2)(b)
and this Division, if:
(a) a notice under repealed section 14
or 15 of the Occupational Superannuation Standards Act 1987 stated that
the Commissioner is satisfied that:
(i) a fund satisfied the
approved deposit fund conditions in relation to a year of income; or
(ii) a fund should be
treated as if it had satisfied the approved deposit fund conditions in relation
to a year of income; and
(b) the year of income is the 1993‑94
year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40
stating that the fund is a complying approved deposit fund in relation to the
year of income.
PSTs—positive
(3) For the
purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under repealed section 15B
or 15C of the Occupational Superannuation Standards Act 1987 stated that
the Commissioner is satisfied that:
(i) a trust satisfied the
pooled superannuation trust conditions in relation to a year of income; or
(ii) a trust should be
treated as if it had satisfied the pooled superannuation trust conditions in
relation to a year of income; and
(b) the year of income is the 1993‑94
year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40
stating that the trust is a pooled superannuation trust in relation to the year
of income.
Superannuation funds—negative
(4) For the purposes of paragraph 41(2)(b)
and this Division, if:
(a) a notice under the repealed section 12
or 13 of the Occupational Superannuation Standards Act 1987 stated that
the Commissioner is not satisfied that a fund satisfied the superannuation fund
conditions in relation to a year of income; and
(b) the year of income is the 1993‑94
year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40
stating that the fund is not a complying superannuation fund in relation to the
year of income.
ADFs—negative
(5) For the purposes of paragraph 41(2)(b)
and this Division, if:
(a) a notice under the repealed
section 14 or 15 of the Occupational Superannuation Standards Act 1987 stated
that the Commissioner is not satisfied that a fund satisfied the approved
deposit fund conditions in relation to a year of income; and
(b) the year of income is the 1993‑94
year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40
stating that the fund is not a complying approved deposit fund in relation to
the year of income.
PSTs—negative
(6) For the
purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under the repealed
section 15B or 15C of the Occupational Superannuation Standards Act
1987 stated that the Commissioner is not satisfied that a trust satisfied the
pooled superannuation trust conditions in relation to a year of income; and
(b) the year of income is the 1993‑94
year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40
stating that the trust is not a pooled superannuation trust in relation to the
year of income.
OSSA—continued operation
(7) A reference in this section to a
provision of the Occupational Superannuation Standards Act 1987 includes
a reference to that provision as it continues to apply, despite its repeal,
because of the Occupational Superannuation Standards Amendment Act 1993.
50
Transitional—late lodgment of elections by trustees of superannuation funds
28 days late
(1) For the purposes of subsection 41(3),
paragraph 42(1)(a) and subsection 45(2), if:
(a) on a particular day (the lodgment
day), the trustee, or the trustees, of a superannuation fund have
lodged or lodge an election under section 19; and
(b) the lodgment day was or is after 28 July 1994; and
(c) the Regulator is satisfied that
this subsection should apply in relation to the fund; and
(d) the trustee, or the trustees, of
the fund have complied with such requirements relating to notifying members of
the fund about:
(i) the delay in lodging
the election; and
(ii) the reasons for the
delay;
as are set out in regulations
made for the purposes of this paragraph; and
(e) under the regulations, the fund is
treated as if it had satisfied the transitional superannuation fund conditions
at all times during the period (the pre‑lodgment period):
(i) beginning at the
beginning of the fund’s 1994‑95 year of income; and
(ii) ending at the end of
the lodgment day;
the fund is taken to be a regulated superannuation fund at
all times during the pre‑lodgment period.
(2) For the purposes of this Part, if:
(a) a superannuation fund is wound up
or terminated; and
(b) the winding up or termination is
completed on a particular day (the termination day); and
(c) the termination day is before a
day named by the Regulator in a written notice given to a trustee of the fund
for the purposes of this paragraph; and
(d) the trustee, or the trustees, of
the fund told the Regulator in writing before the commencement of this
subsection that they:
(i) did not intend to
lodge an election under section 19 in respect of the fund; and
(ii) intended to take
advantage of the subsection (4A) that, immediately before 1 July
1996, was taken to be inserted in this section by a declaration made under
subsection 333(1); and
(e) the trustee, or the trustees, have
complied with such requirements relating to notifying members and prospective
members of the fund that:
(i) the fund would be
wound up or terminated; and
(ii) the trustee, or
trustees, of the fund intended to take advantage of the subsection (4A)
mentioned in subparagraph (d)(ii);
as were set out in regulations
made for the purposes of that subsection (4A); and
(f) as soon as practicable after the
termination day, a trustee of the fund tells the Regulator in writing that the
winding up or termination of the fund had been completed; and
(g) under the regulations, the fund is
treated as if it had satisfied the transitional superannuation fund conditions
at all times during the period (the pre‑termination period):
(i) beginning at the
beginning of the fund’s 1994‑95 year of income; and
(ii) ending at the end of
the termination day;
the fund is taken to have been a complying superannuation
fund at all times during the pre‑termination period.
Regulations may apply OSS system
(5) Regulations made for the purposes of paragraph (1)(e)
or (2)(g) may:
(a) confer functions or powers on the
Regulator; and
(b) make provision for or in relation
to a matter by applying, adopting or incorporating, with such modifications as
are prescribed, the provisions, or the repealed provisions, of:
(i) the Occupational
Superannuation Standards Act 1987; or
(ii) regulations made for
the purposes of section 7 of that Act;
(including those provisions as
they continue to apply, despite their repeal, because of the Occupational
Superannuation Standards Amendment Act 1993).
Section 14 of the Legislative Instruments Act 2003
(6) Subsection (5) of this section does
not limit the application of section 14 of the Legislative Instruments
Act 2003 to regulations made for the purposes of this section.
Part 6—Provisions relating to governing rules of superannuation
entities
51
Object of Part
The object of this Part is to set out
rules about the content of the governing rules of superannuation entities.
52
Covenants to be included in governing rules
Governing rules taken to contain covenants
(1) If the governing rules of a
superannuation entity do not contain covenants to the effect of the covenants
set out in subsection (2), those governing rules are taken to contain covenants
to that effect.
The covenants
(2) The covenants referred to in subsection (1)
are the following covenants by each trustee of the entity:
(a) to act honestly in all matters
concerning the entity;
(b) to exercise, in relation to all
matters affecting the entity, the same degree of care, skill and diligence as
an ordinary prudent person would exercise in dealing with property of another
for whom the person felt morally bound to provide;
(c) to ensure that the trustee’s
duties and powers are performed and exercised in the best interests of the
beneficiaries;
(d) to keep the money and other assets
of the entity separate from any money and assets, respectively:
(i) that are held by the
trustee personally; or
(ii) that are money or
assets, as the case may be, of a standard employer‑sponsor, or an associate of
a standard employer‑sponsor, of the entity;
(e) not to enter into any contract, or
do anything else, that would prevent the trustee from, or hinder the trustee
in, properly performing or exercising the trustee’s functions and powers;
(f) to formulate and give effect to
an investment strategy that has regard to the whole of the circumstances of the
entity including, but not limited to, the following:
(i) the risk involved in
making, holding and realising, and the likely return from, the entity’s
investments having regard to its objectives and its expected cash flow
requirements;
(ii) the composition of the
entity’s investments as a whole including the extent to which the investments
are diverse or involve the entity in being exposed to risks from inadequate
diversification;
(iii) the liquidity of the
entity’s investments having regard to its expected cash flow requirements;
(iv) the ability of the
entity to discharge its existing and prospective liabilities;
(g) if there are any reserves of the
entity—to formulate and to give effect to a strategy for their prudential
management, consistent with the entity’s investment strategy and its capacity
to discharge its liabilities (whether actual or contingent) as and when they
fall due;
(h) to allow a beneficiary access to
any prescribed information or any prescribed documents.
Covenant referred to in paragraph (2)(e)
(3) A covenant referred to in paragraph (2)(e)
does not prevent the trustee from engaging or authorising persons to do acts or
things on behalf of the trustee.
Covenant referred to in paragraph (2)(f)
(4) An investment strategy is taken to be in
accordance with paragraph (2)(f) even if it provides for a specified
beneficiary or a specified class of beneficiaries to give directions to the
trustee, where:
(a) the directions relate to the
strategy to be followed by the trustee in relation to the investment of a
particular asset or assets of the entity; and
(b) the directions are given in
circumstances covered by regulations made for the purposes of this paragraph.
Regulations may prescribe other covenants
(5) The regulations may prescribe a covenant
to be included in the governing rules of a superannuation entity and, if the
governing rules of such a superannuation entity do not contain a covenant to
the effect of the prescribed covenant, those rules are taken to contain a
covenant to that effect.
Prescribed covenants may overlap with other
requirements
(6) Without limiting the generality of subsection (5),
the regulations may prescribe, for the purposes of that subsection, a covenant
that elaborates, supplements, or otherwise deals with, any aspect of:
(a) a matter to which a covenant in subsection (2)
relates; or
(b) a matter to which a provision of
this Act (other than this section) relates.
But prescribed covenants must be capable of operating
concurrently with other requirements
(7) However, a covenant prescribed for the
purposes of subsection (5) must be capable of operating concurrently with:
(a) all the covenants referred to in subsection (2);
and
(b) this Act other than this section.
Covenant by corporate trustee has effect as covenant by
trustee’s directors
(8) A covenant by a corporate trustee of a
superannuation entity that is to the effect of a covenant referred to in subsection (2),
or to the effect of a covenant prescribed by regulations referred to in subsection (5),
also operates as a covenant by each of the directors of the trustee to exercise
a reasonable degree of care and diligence for the purposes of ensuring that the
trustee carries out the first‑mentioned covenant, and so operates as if the
directors were parties to the governing rules.
Reasonable degree of care and diligence
(9) The reference in subsection (8) to a
reasonable degree of care and diligence is a reference to the degree of care
and diligence that a reasonable person in the position of director of the
trustee would exercise in the trustee’s circumstances.
53
Covenants to repay amounts to beneficiaries in approved deposit funds
Governing rules to contain 2 covenants
(1) If the governing rules of an approved
deposit fund (other than an excluded approved deposit fund) do not contain
covenants to the effect of those set out in subsection (2), they are taken
to contain covenants to that effect.
Content of the covenants
(2) The covenants are:
(a) that, if:
(i) a beneficiary, by
written notice given to the trustee, requests the trustee to pay to the
beneficiary an amount equal to the beneficiary’s interest in the fund; and
(ii) compliance by the
trustee with the request would not be inconsistent with the standards
applicable to the fund under section 32;
the trustee will pay that amount
within a period (not being more than 12 months) determined by the trustee; and
(b) that each director of the trustee
will ensure that the trustee gives effect to the covenant in paragraph (a).
Legal personal representatives of beneficiaries
(2A) A reference in subsection (2) to a
beneficiary includes a reference to the legal personal representative of a
beneficiary.
Note: Section 15 sets out additional rules
relating to the interpretation of subsection (2).
Directors taken to be parties to governing rules
(3) The covenant in paragraph (2)(b) has
effect as if each director were a party to the governing rules.
Period for payments to beneficiaries
(4) The trustee is to determine the period
within which amounts are to be paid to beneficiaries under the covenant
referred to in paragraph (2)(a).
Variation of payment period
(5) When the trustee has determined the
period under subsection (4), the trustee may make a further determination
varying that period if, and only if:
(a) ASIC has consented in writing to
the variation; or
(b) the requirements of section 54
have been complied with.
54
Prerequisites to variation of repayment period
(1) The
requirements referred to in paragraph 53(5)(b) are as follows:
(a) the question whether the variation
should be made has been voted on at a meeting of the beneficiaries;
(b) the trustee convened the meeting
by sending by post, to the last‑known address of each of the beneficiaries, at
least 21 days before the meeting, a notice that set out:
(i) the date, time and
place of the meeting; and
(ii) the reason for
convening the meeting;
(c) the beneficiaries who, at the
meeting, vote (whether in person or by proxy) on the question hold interests
equal in value to at least the prescribed percentage of the total value of all
the interests in the fund;
(d) the prescribed percentage of the
beneficiaries who voted on the question cast their votes in favour of making
the variation.
(2) For the purposes of paragraph (1)(c),
the value of an interest is the price at which the trustee would have to make a
payment in respect of the interest if the trustee were required to do so, under
the covenant referred to in section 53, on the day immediately before the
day when the meeting is held.
55
Consequences of contravention of covenant
(1) A person must not contravene a covenant
contained, or taken to be contained, in the governing rules of a superannuation
entity.
(2) A contravention of subsection (1) is
not an offence and a contravention of that subsection does not result in the
invalidity of a transaction.
(3) A person who suffers loss or damage as a
result of conduct of another person that was engaged in in contravention of subsection (1)
may recover the amount of the loss or damage by action against that other
person or against any person involved in the contravention.
(4) An action under subsection (3) may
be begun at any time within 6 years after the day on which the cause of action
arose.
(5) It is a defence to an action for loss or
damage suffered by a person as a result of the making of an investment by or on
behalf of a trustee of a superannuation entity if the defendant establishes
that the investment was made in accordance with an investment strategy
formulated under a covenant referred to in paragraph 52(2)(f).
(6) It is a defence to an action for loss or
damage suffered by a person as a result of the management of any reserves by a
trustee of a superannuation entity if the defendant establishes that the
management of the reserves was in accordance with a covenant referred to in
paragraph 52(2)(g).
(7) Subsections (5) and (6) apply to an
action for loss or damage, whether brought under subsection (3) or
otherwise.
55A
Rules about cashing benefits after death of members
(1) The governing rules of a regulated
superannuation fund must not permit a fund member’s benefits to be cashed after
the member’s death otherwise than in accordance with standards prescribed for
the purposes of section 31.
(2) If the governing rules of a fund are
inconsistent with subsection (1):
(a) subsection (1) prevails; and
(b) the governing rules are invalid,
to the extent of the inconsistency.
56
Indemnification of trustee from assets of entity
(1) A provision in the governing rules of a
superannuation entity is void if:
(a) it purports to preclude a trustee
of the entity from being indemnified out of the assets of the entity in respect
of any liability incurred while acting as trustee of the entity; or
(b) subject to subsection (2), it
limits the amount of such an indemnity.
(2) A provision in the governing rules of a
superannuation entity is void in so far as it would have the effect of exempting
a trustee of the entity from, or indemnifying a trustee of the entity against:
(a) liability for breach of trust if
the trustee:
(i) fails to act honestly
in a matter concerning the entity; or
(ii) intentionally or
recklessly fails to exercise, in relation to a matter affecting the entity, the
degree of care and diligence that the trustee was required to exercise; or
(b) liability for a monetary penalty
under a civil penalty order.
(3) Nothing in the governing rules of a
superannuation entity prohibits a trustee of the entity from seeking advice
from any person in respect of any matter relating to performance of the duties
or the exercise of the powers of a trustee. A provision in the governing rules
that purports to preclude a trustee of the entity from being indemnified out of
assets of the entity in respect of the cost of obtaining such advice, or to
limit the amount of such an indemnity, is void.
57
Indemnification of directors of trustee from assets of entity
(1) Subject to subsection (2), the
governing rules of a superannuation entity may provide for a director of the
trustee to be indemnified out of the assets of the entity in respect of a
liability incurred while acting as a director of the trustee.
(2) A provision of the governing rules of a
superannuation entity is void in so far as it would have the effect of
indemnifying a director of the trustee against:
(a) a liability that arises because
the director:
(i) fails to act honestly
in a matter concerning the entity; or
(ii) intentionally or
recklessly fails to exercise, in relation to a matter affecting the entity, the
degree of care and diligence that the director is required to exercise; or
(b) liability for a monetary penalty
under a civil penalty order.
(3) A director of the trustee of a
superannuation entity may be indemnified out of the assets of the entity in
accordance with provisions of the entity’s governing rules that comply with
this section.
(4) This section has effect despite section 241
of the Corporations Act 2001.
58
Trustee not to be subject to direction
(1) Subject to subsection (2), the
governing rules of a superannuation entity other than a superannuation fund
with fewer than 5 members or an excluded approved deposit fund must not permit
a trustee to be subject, in the exercise of any of the trustee’s powers under
those rules, to direction by any other person.
(2) Subsection (1) does not apply to:
(a) a direction given by a court; or
(b) a direction given by the
Regulator; or
(c) a direction given by a beneficiary
or a group of beneficiaries that relates to benefits payable to that
beneficiary or those beneficiaries, as the case may be; or
(d) a direction given by a beneficiary
or group of beneficiaries, where the direction is covered by subsection 52(4);
or
(e) if the entity is an employer‑sponsored
fund—a direction given by an employer‑sponsor, or an associate of an employer‑sponsor,
in circumstances prescribed by the regulations; or
(f) a direction given by the
Superannuation Complaints Tribunal; or
(g) a direction given by a member
(within the meaning of the Superannuation Contributions Tax (members of
Constitutionally Protected Superannuation Funds) Assessment and Collection Act
1997) that is permitted to be given by subsection 15(8A) of that Act.
(3) If the governing rules of a
superannuation entity are inconsistent with subsection (1), that
subsection prevails, and the governing rules are, to the extent of the
inconsistency, invalid.
59
Exercise of discretion by person other than trustee
(1) Subject to subsection (1A), the
governing rules of a superannuation entity other than a self managed
superannuation fund must not permit a discretion under those rules that is
exercisable by a person other than a trustee of the entity to be exercised
unless:
(a) those rules require the consent of
the trustee, or the trustees, of the entity to the exercise of that discretion;
or
(b) if the entity is an employer‑sponsored
fund:
(i) the exercise of the
discretion relates to the contributions that an employer‑sponsor will, after
the discretion is exercised, be required or permitted to pay to the fund; or
(ii) the exercise of the
discretion relates solely to a decision to terminate the fund; or
(iii) the circumstances in
which the discretion was exercised are covered by regulations made for the
purposes of this subparagraph.
(1A) Despite subsection (1), the governing
rules of a superannuation entity may, subject to a trustee of the entity
complying with any conditions contained in the regulations, permit a member of
the entity, by notice given to a trustee of the entity in accordance with the
regulations, to require a trustee of the entity to provide any benefits in
respect of the member on or after the member’s death to a person or persons
mentioned in the notice, being the legal personal representative or a dependant
or dependants of the member.
(2) If the governing rules of a
superannuation entity are inconsistent with subsection (1), that
subsection prevails, and the governing rules are, to the extent of the
inconsistency, invalid.
60
Amendment of governing rules
(1) The governing rules of a superannuation
entity other than a self managed superannuation fund must not permit those
rules to be amended unless:
(a) the trustee, or the trustees, of
the entity have consented to the amendment; or
(b) if the entity is an employer‑sponsored
fund:
(i) the amendment relates
to the contributions that an employer‑sponsor will, after the amendment, be
required or permitted to pay to the fund; or
(ii) the amendment relates
solely to the termination of the fund; or
(iii) the circumstances in
which the amendment was made are covered by regulations made for the purposes
of this subparagraph; or
(c) the amendment is made solely for
the purpose of conferring on the trustee, or the trustees, the power to consent
to amendments of those rules.
(2) The governing rules of a regulated
superannuation fund must not permit those rules to be amended in such a way
that:
(a) a person other than a
constitutional corporation would be eligible to be appointed as trustee unless
the rules provide, and will continue to provide after the amendment is made,
that the fund has, as its sole or primary purpose, the provision of old‑age
pensions; or
(b) the sole or primary purpose of the
fund would be a purpose other than the provision of old‑age pensions unless the
rules provide, and will continue to provide after the amendment is made, that
the trustee must be a constitutional corporation.
(3) If the governing rules of the
superannuation entity are inconsistent with subsection (1) or (2), the
subsection concerned prevails, and the governing rules are, to the extent of
the inconsistency, invalid.
60A
Dismissal of trustee of public offer entity
(1) Subject to subsection (2), the
governing rules of a public offer entity must not permit the trustee to be
removed by a person other than APRA.
Note: Part 17 provides for the removal of
trustees by APRA.
(2) Subsection (1) does not apply to a
removal of a kind specified in regulations made for the purposes of this
subsection.
(3) If the governing rules of the public
offer entity are inconsistent with subsection (1), that subsection
prevails, and the governing rules are, to the extent of the inconsistency, invalid.
Part 7—Provisions applying only to regulated superannuation funds
61
Object of Part
The object of this Part is to set out
special rules which apply only to regulated superannuation funds.
62
Sole purpose test
(1) Each trustee of a regulated
superannuation fund must ensure that the fund is maintained solely:
(a) for one or more of the following
purposes (the core purposes):
(i) the provision of
benefits for each member of the fund on or after the member’s retirement from
any business, trade, profession, vocation, calling, occupation or employment in
which the member was engaged (whether the member’s retirement occurred before,
or occurred after, the member joined the fund);
(ii) the provision of
benefits for each member of the fund on or after the member’s attainment of an
age not less than the age specified in the regulations;
(iii) the provision of
benefits for each member of the fund on or after whichever is the earlier of:
(A) the
member’s retirement from any business, trade, profession, vocation, calling,
occupation or employment in which the member was engaged; or
(B) the
member’s attainment of an age not less than the age prescribed for the purposes
of subparagraph (ii);
(iv) the provision of
benefits in respect of each member of the fund on or after the member’s death,
if:
(A) the
death occurred before the member’s retirement from any business, trade,
profession, vocation, calling, occupation or employment in which the member was
engaged; and
(B) the
benefits are provided to the member’s legal personal representative, to any or
all of the member’s dependants, or to both;
(v) the provision of
benefits in respect of each member of the fund on or after the member’s death,
if:
(A) the
death occurred before the member attained the age prescribed for the purposes
of subparagraph (ii); and
(B) the
benefits are provided to the member’s legal personal representative, to any or
all of the member’s dependants, or to both; or
(b) for one or more of the core
purposes and for one or more of the following purposes (the ancillary
purposes):
(i) the provision of
benefits for each member of the fund on or after the termination of the
member’s employment with an employer who had, or any of whose associates had,
at any time, contributed to the fund in relation to the member;
(ii) the provision of
benefits for each member of the fund on or after the member’s cessation of
work, if the work was for gain or reward in any business, trade, profession,
vocation, calling, occupation or employment in which the member was engaged and
the cessation is on account of ill‑health (whether physical or mental);
(iii) the provision of
benefits in respect of each member of the fund on or after the member’s death,
if:
(A) the
death occurred after the member’s retirement from any business, trade,
profession, vocation, calling, occupation or employment in which the member was
engaged (whether the member’s retirement occurred before, or occurred after,
the member joined the fund); and
(B) the
benefits are provided to the member’s legal personal representative, to any or
all of the member’s dependants, or to both;
(iv) the provision of
benefits in respect of each member of the fund on or after the member’s death,
if:
(A) the
death occurred after the member attained the age prescribed for the purposes of
subparagraph (a)(ii); and
(B) the
benefits are provided to the member’s legal personal representative, to any or
all of the member’s dependants, or to both;
(v) the provision of such
other benefits as the Regulator approves in writing.
(1A) Subsection (1) does not imply that a
trustee of a regulated superannuation fund is required to maintain the fund so
that the same kind of benefits will be provided:
(a) to each member of the fund; or
(b) in respect of each member of the
fund.
(2) Subsection (1) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or of being involved in a
contravention of, that subsection.
(3) An approval given by the Regulator for
the purposes of subsection (1) may be expressed to relate to:
(a) a specified fund; or
(b) a specified class of funds.
62A
Self managed superannuation funds—investment in collectables and personal use
assets
The regulations may prescribe rules in
relation to the trustees of regulated superannuation funds that are self
managed superannuation funds making, holding and realising investments
involving:
(a) artwork (within the meaning of the
Income Tax Assessment Act 1997); or
(b) jewellery; or
(c) antiques; or
(d) artefacts; or
(e) coins or medallions; or
(f) postage stamps or first day
covers; or
(g) rare folios, manuscripts or books;
or
(h) memorabilia; or
(i) wine; or
(j) cars; or
(k) recreational boats; or
(l) memberships of sporting or social
clubs; or
(m) assets of a particular kind, if
assets of that kind are ordinarily used or kept mainly for personal use or
enjoyment (not including land).
Note: The regulations may prescribe penalties of not
more than 10 penalty units for offences against the regulations. See paragraph
353(1)(d).
63 Certain
regulated superannuation funds not to accept employer contributions in certain
circumstances
Directions
(1) The Regulator may give a trustee of a
regulated superannuation fund a written notice directing the trustee, or the
trustees, not to accept any contributions made to the fund by an employer‑sponsor.
Pre‑1994‑95 directions
(2) The Commissioner may only give a
direction under this section to the trustee of a fund before the fund’s 1994‑95 year of income (whether in accordance with section 4 of the Acts
Interpretation Act 1901 or otherwise) if the direction takes effect at the
beginning of that year of income and, at a time during the period:
(a) beginning on the day on which this
Act received the Royal Assent; and
(b) ending immediately before the
beginning of that year of income;
when:
(c) the fund was in existence; and
(d) there were in force regulations
for the purposes of subsection 7(1) of the Occupational Superannuation
Standards Act 1987 prescribing standards applicable to the fund;
the fund did not comply with any or all of those
standards.
Post‑1993‑94 directions
(3) The Regulator must not give a direction
under this section to a trustee of a fund after the beginning of the fund’s 1994‑95 year of income unless:
(a) a trustee of the fund has
contravened one or more of the regulatory provisions (as defined in section 38A)
on one or more occasions after the beginning of that year of income; and
(b) the Regulator is satisfied that
the seriousness or frequency, or both, of the contraventions warrants the
giving of the direction.
Reasons
(4) A direction under this section must be
accompanied by, or included in the same document as, a statement giving the
reasons for the direction.
Revocation
(5) The Regulator may revoke a direction
under this section if the Regulator is satisfied that there is, and is likely
to continue to be, substantial compliance by each trustee of the fund with the
regulatory provisions (as defined in section 38A) applicable to the fund.
Contravention of equal representation rules
(6) For the purposes of subsections (3)
and (5), if a fund does not comply with Part 9 (which deals with equal
representation), the trustee of the fund is, or the trustees of the fund are,
taken to have contravened the applicable provisions of that Part.
Offence of contravening direction
(7) A trustee of a fund must not, without
reasonable excuse, contravene a direction under this section.
Penalty: 100 penalty units.
(7A) Subsection (7) is an offence of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
Additional rule for certain funds not complying with
equal representation rules
(7B) An RSE licensee of a fund that is not a
public offer superannuation fund must not, while subsection (7D) applies
to the fund, accept any contributions made to the fund by an employer‑sponsor.
Penalty: 60 penalty units.
(7C) Subsection (7B) is an offence of
strict liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(7D) This subsection applies to the fund if:
(a) the fund is failing to comply with
subsection 92(4) or 93(4) (whichever is applicable); or
(b) having previously failed to
comply, the fund does so comply but the RSE licensee has not given to APRA a
notice in the approved form that:
(i) states that the fund
so complies; and
(ii) if the RSE licensee is
a group of individual trustees and the compliance is as a result of the
appointment of one or more other individual trustees to the group—states the
appointee’s name or the appointees’ names; and
(iii) if the RSE licensee is
a body corporate and the compliance is as a result of the appointment of one or
more directors to the board of directors of the body corporate—states the
appointee’s name or the appointees’ names.
Refund of contributions
(8) A contravention of subsection (7) or
(7B) does not result in the invalidity of a transaction. However, if a
contribution is accepted in contravention of either of those subsections, a
trustee of the fund concerned must refund the contribution within 28 days or
such further period as the Regulator allows.
Notification to employer‑sponsors
(9) If a trustee of a fund is given a
direction under this section, each trustee of the fund must ensure that all
reasonable steps are taken to notify the direction to each employer‑sponsor of
the fund.
Offence of contravening subsection (8) or (9)
(10) A person who, without reasonable excuse,
contravenes subsection (8) or (9) is guilty of an offence punishable on
conviction by a fine not exceeding 50 penalty units.
(10A) Subsection (10) is an offence of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
Refunded contributions to be ignored for the purposes
of income tax and superannuation guarantee charge
(11) For the purposes of the Income Tax
Assessment Act and the Superannuation Guarantee (Administration) Act 1992,
if a contribution is refunded under this section, the person who made the
contribution is taken never to have made the contribution.
Superannuation guarantee charge—shortfall component to
be treated as employer contribution
(12) This section has effect as if the payment
of a shortfall component to a fund under section 65 of the Superannuation
Guarantee (Administration) Act 1992 were a contribution made to the fund by
an employer‑sponsor.
OSSA
(13) A reference in this section to subsection
7(1) of the Occupational Superannuation Standards Act 1987 includes a
reference to that subsection as it continues to apply, despite its repeal,
because of the Occupational Superannuation Standards Amendment Act 1993.
64
Superannuation contributions—deductions from salary or wages to be remitted
promptly
Application
(1) This section applies if:
(a) an employer of an employee is
authorised (whether by the employee, by force of law or otherwise) to:
(i) deduct an amount from
salary or wages payable by the employer to the employee; and
(ii) pay to a trustee of a
regulated superannuation fund the amount of the deduction for the purposes of
making provision for superannuation benefits for, or for dependants of, the
employee; and
(b) the employer makes such a
deduction.
Prompt remission
(2) The employer must pay to a trustee of the
superannuation fund the amount of the deduction before the end of the 28‑day
period beginning immediately after the end of the month in which the deduction
was made.
(2A) Subsection (2) does not apply if:
(a) the employer pays to an approved
clearing house (within the meaning of the Superannuation Guarantee
(Administration) Act 1992) the amount of the deduction before the end of
the period mentioned in that subsection; and
(b) the approved clearing house
accepts the payment.
(3) The employer is guilty of an offence if
the employer contravenes subsection (2).
Penalty: 100 penalty units.
(3A) The employer is guilty of an offence if the
employer contravenes subsection (2). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
Definition
(4) In this section:
salary or wages has the same meaning as in
the Superannuation Guarantee (Administration) Act 1992.
Part‑time domestic workers counted
(5) For the purposes of this section, the
Superannuation Guarantee (Administration) Act 1992 has effect as if
subsection 11(2) of that Act had not been enacted.
64A Compliance
with determinations of the Superannuation Complaints Tribunal
(1) If:
(a) a complaint has been made to the
Superannuation Complaints Tribunal under section 14 of the Superannuation
(Resolution of Complaints) Act 1993 concerning a disability benefit
(whether under a contract of insurance or otherwise); and
(b) the Tribunal decides that a person
other than a trustee or an insurer is responsible for determining the existence
of the disability; and
(c) the Tribunal joins the person
under paragraph 18(1)(d) of that Act as a party to the complaint;
the person must comply with any determination made in
respect of the person by the Tribunal.
(2) In this section:
Superannuation Complaints Tribunal means
the Superannuation Complaints Tribunal established under section 6 of the Superannuation
(Resolution of Complaints) Act 1993.
65
Lending to members of regulated superannuation fund prohibited
Prohibition
(1) A trustee or an investment manager of a
regulated superannuation fund must not:
(a) lend money of the fund to:
(i) a member of the fund;
or
(ii) a relative of a member
of the fund; or
(b) give any other financial
assistance using the resources of the fund to:
(i) a member of the fund;
or
(ii) a relative of a member
of the fund.
Exception—private sector funds
(2) Subsection (1) does not prohibit the
lending of money of a private sector fund established before 16 December 1985 to a member if the trustee of the fund, on or before that date:
(a) had express power to lend money to
members; or
(b) lent money to members and that
lending was not expressly prohibited by the governing rules of the fund.
Exception—public sector funds
(3) Subsection (1) does not prohibit the
lending of money of a public sector fund established before 25 May 1988 to a member if the trustee of the fund, on or before that date:
(a) had express power to lend money to
members; or
(b) lent money to members and that
lending was not expressly prohibited by the governing rules of the fund.
Variation of governing rules
(4) If:
(a) subsection (2) or (3) applies
to a regulated superannuation fund; and
(b) at the beginning of the fund’s 1994‑95 year of income, a provision included in the governing rules of the fund authorised the
lending of the fund’s money to members;
a variation of that provision is void unless the
variation:
(c) limits the power to lend the
fund’s money to members; or
(d) removes the power to lend the
fund’s money to members.
Civil penalty provision
(5) Subsection (1) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or of being involved in a
contravention of, that subsection.
Effect of Part 8
(7) Nothing in Part 8 limits the
operation of this section.
66
Acquisitions of certain assets from members of regulated superannuation funds
prohibited
Prohibition
(1) Subject to subsection (2), a trustee
or an investment manager of a regulated superannuation fund must not
intentionally acquire an asset from a related party of the fund.
Exception—acquisitions of business real property and
listed securities
(2) Subsection (1) does not prohibit a
trustee or investment manager acquiring an asset from a related party of the
fund if:
(a) the asset is a listed security
acquired at market value; or
(b) if the fund is a superannuation
fund with fewer than 5 members—the asset is business real property of the
related party acquired at market value; or
(c) the trustee of a regulated
superannuation fund acquired the asset under a merger between regulated
superannuation funds; or
(d) the asset is an asset of a kind
which the Regulator, by legislative instrument, determines may be acquired by:
(i) any fund; or
(ii) a class of funds in
which the fund is included.
Exception—certain in‑house assets
(2A) Subsection (1) does not prohibit the
acquisition of an asset by a trustee or investment manager of a superannuation
fund from a related party of the fund if:
(a) the acquisition of the asset
constitutes an investment that:
(i) is an in‑house asset
of the fund within the meaning of subsection 71(1); or
(ii) would be an in‑house
asset of the fund within the meaning of subsection 71(1) apart from the
operation of Subdivision D of Part 8; or
(iii) is a life insurance
policy issued by a life insurance company (other than a policy acquired from a
member of the fund or from a relative of a member); or
(iv) is referred to in
paragraph 71(1)(b), (ba), (c), (d), (e), (f), (h) or (j); and
(b) the asset is acquired at market
value; and
(c) the acquisition of the asset would
not result in the level of in‑house assets of the superannuation fund exceeding
the level permitted by Part 8.
Exception—breakdown of relationships
(2B) Subsection (1)
does not prohibit a trustee or investment manager acquiring an asset from a
related party of the fund (the acquiring fund) if:
(a) the asset is acquired:
(i) for the benefit of a
particular member of the acquiring fund; and
(ii) from a trustee or
investment manager of another regulated superannuation fund (the transferring
fund); and
(b) at the time of the acquisition:
(i) the member and his or
her spouse or former spouse are separated; and
(ii) there is no reasonable
likelihood of cohabitation being resumed; and
(c) the acquisition occurs because of
reasons directly connected with the breakdown of the relationship between the
spouses or former spouses; and
(d) the asset represents the whole, or
a part, of either:
(i) the member’s own
interests in the transferring fund; or
(ii) the member’s
entitlements as determined under Part VIIIB of the Family Law Act 1975
in relation to the interests of the member’s spouse, or former spouse, in the
transferring fund.
(2C) For the purposes of subsection (2B),
the question whether the spouses, or former spouses, have separated is to be
determined in the same way as it is for the purposes of section 48 of the Family
Law Act 1975 (as affected by sections 49 and 50 of that Act).
Prohibition of avoidance schemes
(3) A person must not enter into, commence to
carry out, or carry out a scheme if the person entered into, commenced to carry
out, or carried out the scheme or any part of the scheme with the intention
that:
(a) the scheme would result, or be
likely to result, in the acquisition of an asset by a trustee or an investment
manager of a regulated superannuation fund, where the asset is acquired from a
person who has a connection (either direct or indirect through one or more
interposed companies, partnerships or trusts) with a related party of the fund;
and
(b) that acquisition would avoid the
application of subsection (1) to the fund.
Offence
(4) A person who contravenes subsection (1)
or (3) is guilty of an offence punishable on conviction by imprisonment for a
term not exceeding 1 year.
Definitions
(5) In this section:
acquire an asset does not include accept
money.
business includes any profession, trade,
employment, vocation or calling carried on for the purposes of profit,
including:
(a) the carrying on of primary
production; and
(b) the provision of professional
services;
but does not include occupation as an employee.
business real property, in relation to an
entity, means:
(a) any freehold or leasehold interest
of the entity in real property; or
(b) any interest of the entity in
Crown land, other than a leasehold interest, being an interest that is capable
of assignment or transfer; or
(c) if another class of interest in
relation to real property is prescribed by the regulations for the purposes of
this paragraph—any interest belonging to that class that is held by the entity;
where the real property is used wholly and exclusively in
one or more businesses (whether carried on by the entity or not), but does not
include any interest held in the capacity of beneficiary of a trust estate.
listed security means a security listed for
quotation in the official list of any of the following:
(a) a licensed market within the
meaning of section 761A of the Corporations Act 2001; or
(b) an approved stock exchange within
the meaning of the Income Tax Assessment Act 1997; or
(c) a market exempted under section 791C
of the Corporations Act 2001.
primary production business has the same
meaning as in the Income Tax Assessment Act 1997.
scheme means:
(a) any agreement, arrangement,
understanding, promise or undertaking:
(i) whether express or
implied; or
(ii) whether or not
enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal,
action, course of action or course of conduct, whether unilateral or otherwise.
Real property used in primary production business
(6) For the purposes of the definition of business
real property in subsection (5), real property used in one or more
primary production businesses does not cease to be used wholly and exclusively
in that business or those businesses only because:
(a) an area of the real property, not
exceeding 2 hectares, contains a dwelling used primarily for domestic or
private purposes; and
(b) the area is also used primarily
for domestic or private purposes;
provided that the use for domestic or private purposes
referred to in paragraphs (a) and (b) is not the predominant use of the
real property.
67
Borrowing
Prohibition
(1) Subject to this section and
section 67A, a trustee of a regulated superannuation fund must not:
(a) borrow money; or
(b) maintain an existing borrowing of
money.
Note: Section 67A contains an exception for
certain limited recourse borrowing arrangements.
Exception—temporary borrowing to pay beneficiary
(2) Subsection (1) does not prohibit a
trustee of a regulated superannuation fund from borrowing money if:
(a) the purpose of the borrowing is to
enable the trustee to make a payment to a beneficiary which the trustee is
required to make by law or by the governing rules and which, apart from the
borrowing, the trustee would not be able to make; and
(b) the period of the borrowing does
not exceed 90 days; and
(c) if the borrowing were to take
place, the total amount borrowed by the trustee would not exceed 10% of the
value of the assets of the fund.
(2A) Subsection (1) does not prohibit a
trustee of a regulated superannuation fund from borrowing money if:
(a) the purpose of the borrowing is to
enable the trustee to make a payment of surcharge or advance instalment which
the trustee is required to make under the Superannuation Contributions Tax
(Assessment and Collection) Act 1997 and which, apart from the borrowing,
the trustee would not be able to make; and
(b) the period of the borrowing does
not exceed 90 days; and
(c) if the borrowing were to take
place, the total amount borrowed by the trustee would not exceed 10% of the
value of the assets of the fund.
Exception—temporary borrowing to cover settlement of
securities transactions
(3) Subsection (1) does not prohibit a
trustee of a regulated superannuation fund from borrowing money if:
(a) the purpose of the borrowing is to
enable the trustee to cover settlement of a transaction for the acquisition of
any of the following:
(i) bonds, debentures,
stock, bills of exchange or other securities;
(ii) shares in a company;
(iii) units in a unit trust;
(iv) futures contracts;
(v) forward contracts;
(vi) interest rates swap
contracts;
(vii) currency swap
contracts;
(viii) forward exchange rate
contracts;
(ix) forward interest rate
contracts;
(x) a right or option in
respect of such a security, share, unit, contract or policy;
(xi) any similar financial
instrument;
(xii) foreign currency; and
(b) both:
(i) at the time the
relevant investment decision was made, it was likely that the borrowing would
not be needed; and
(ii) the borrowing is not
taken, under a determination made, by legislative instrument, by the Regulator,
to be exempt from this paragraph; and
(c) the period of the borrowing does
not exceed 7 days; and
(d) if the borrowing were to take
place, the total amount borrowed by the trustee would not exceed 10% of the
value of the assets of the fund.
Exception—private sector funds
(5) Subsection (1) does not prohibit a
trustee of a private sector fund from maintaining an existing borrowing of
money if:
(a) the trustee had, at a time before
12 June 1986, borrowed the money in circumstances that did not comply with
the standard set out in paragraph 16(1)(b) of the Occupational Superannuation
Standards Regulations; and
(b) the maintenance occurs before
whichever is the earliest of the following:
(i) the day on which the
trustee made such arrangements as were necessary to comply with that standard;
(ii) the day on which the
trustee makes such arrangements as are necessary to comply with subsection (1);
(iii) 1 July 1995.
Exception—public sector funds
(6) Subsection (1) does not prohibit the
trustee of a public sector fund from maintaining an existing borrowing of money
if:
(a) the trustee had, at a time before
2 July 1990, borrowed the money in circumstances that did not comply with
the standard set out in paragraph 16(1)(b) of the Occupational Superannuation
Standards Regulations; and
(b) the
maintenance occurs before whichever is the earliest of the following:
(i) the day on which the
trustee made such arrangements as were necessary to comply with that standard;
(ii) the day on which the
trustee makes such arrangements as are necessary to comply with subsection (1);
(iii) 1 July 2000.
Civil penalty provision
(7) Subsection (1) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or of being involved in a
contravention of, that subsection.
67A
Limited recourse borrowing arrangements
Exception
(1) Subsection 67(1) does not prohibit a
trustee of a regulated superannuation fund (the RSF trustee) from
borrowing money, or maintaining a borrowing of money, under an arrangement
under which:
(a) the money is or has been applied
for the acquisition of a single acquirable asset, including:
(i) expenses incurred in
connection with the borrowing or acquisition, or in maintaining or repairing
the acquirable asset (but not expenses incurred in improving the acquirable
asset); and
Example: Conveyancing fees, stamp duty, brokerage or loan
establishment costs.
(ii) money applied to
refinance a borrowing (including any accrued interest on a borrowing) to which
this subsection applied (including because of section 67B) in relation to
the single acquirable asset (and no other acquirable asset); and
(b) the acquirable asset is held on
trust so that the RSF trustee acquires a beneficial interest in the acquirable
asset; and
(c) the RSF trustee has a right to
acquire legal ownership of the acquirable asset by making one or more payments
after acquiring the beneficial interest; and
(d) the rights of the lender or any
other person against the RSF trustee for, in connection with, or as a result
of, (whether directly or indirectly) default on:
(i) the borrowing; or
(ii) the sum of the
borrowing and charges related to the borrowing;
are limited to rights relating
to the acquirable asset; and
Example: Any right of a person to be indemnified by the RSF
trustee because of a personal guarantee given by that person in favour of the
lender is limited to rights relating to the acquirable asset.
(e) if, under the arrangement, the RSF
trustee has a right relating to the acquirable asset (other than a right
described in paragraph (c))—the rights of the lender or any other person
against the RSF trustee for, in connection with, or as a result of, (whether
directly or indirectly) the RSF trustee’s exercise of the RSF trustee’s right
are limited to rights relating to the acquirable asset; and
(f) the acquirable asset is not subject
to any charge (including a mortgage, lien or other encumbrance) except as
provided for in paragraph (d) or (e).
Meaning of acquirable asset
(2) An asset is an acquirable asset
if:
(a) the asset is not money (whether
Australian currency or currency of another country); and
(b) neither this Act nor any other law
prohibits the RSF trustee from acquiring the asset.
(3) This section and section 67B apply
to a collection of assets in the same way as they apply to a single asset, if:
(a) the assets in the collection have
the same market value as each other; and
(b) the assets in the collection are
identical to each other.
Example: A collection of shares of the same class in a
single company.
(4) For the purposes of this section and
section 67B, the regulations may provide that, in prescribed
circumstances, an acquirable asset ceases to be that particular acquirable
asset.
RSF trustee
(5) Paragraphs (1)(d) and (e) do not
apply to a right of:
(a) a member of the regulated
superannuation fund; or
(b) another trustee of the regulated
superannuation fund;
to damages against the RSF trustee for a breach by the RSF
trustee of any of the RSF trustee’s duties as trustee.
(6) A reference in paragraph (1)(d) or
(e) (but not in subsection (5)) to a right of any person against the RSF
trustee includes a reference to a right of a person who is the RSF trustee, if
the person holds the right in another capacity.
67B
Limited recourse borrowing arrangements—replacement assets
(1) Subsection (2) applies to:
(a) a reference in paragraph
67A(1)(b), (c), (d), (e) or (f) to an acquirable asset (the original
asset); or
(b) a reference in subsection 71(8) to
an acquirable asset (the original asset) mentioned in paragraph
67A(1)(b);
(including a reference resulting from a previous
application of subsection (2) of this section).
(2) Treat the reference as being a reference
to another single acquirable asset (the replacement asset) if:
(a) the replacement asset replaces the
original asset; and
(b) subsection (3), (4), (5), (6),
(7) or (8) applies.
(3) This subsection applies if:
(a) the original asset consists of:
(i) a share in a company,
or a collection of shares in a company; or
(ii) a unit in a unit
trust, or a collection of units in a unit trust; and
(b) the replacement asset consists of:
(i) a share in that
company, or a collection of shares in that company; or
(ii) a unit in that unit
trust, or a collection of units in that unit trust; and
(c) at the time the replacement
occurs, the original asset and the replacement asset have the same market
value.
(4) This subsection applies if:
(a) the original asset consists of an
instalment receipt that confers a beneficial interest in:
(i) a share in a company;
or
(ii) a collection of shares
in a company; and
(b) the replacement asset consists of
that share or collection.
(5) This subsection applies if:
(a) the original asset consists of:
(i) a share in a company,
or a collection of shares in a company; or
(ii) a unit in a unit
trust, or a collection of units in a unit trust; and
(b) the replacement asset consists of:
(i) a share in another
company, or a collection of shares in another company; or
(ii) a unit in another unit
trust, or a collection of units in another unit trust; and
(c) the replacement occurs as a result
of a takeover, merger, demerger or restructure of the company or unit trust
mentioned in paragraph (a).
(6) This subsection applies if:
(a) the original asset consists of a
share in a company, or a collection of shares in a company; and
(b) the replacement asset consists of
a stapled security, or a collection of stapled securities; and
(c) each of those stapled securities
consists of a single share, or a single collection of shares of the same class,
stapled together with a single unit, or a single collection of units of the
same class, in a unit trust; and
(d) the replacement occurs under a
scheme of arrangement of the company.
(7) This subsection applies if:
(a) the original asset consists of a
unit in a unit trust, or a collection of units in a unit trust; and
(b) the replacement asset consists of
a unit in that unit trust, or a collection of units in that unit trust; and
(c) the replacement occurs as a result
of an exercise of a discretion granted under the trust deed of that unit trust
to the trustee of that unit trust.
(8) This subsection applies in the
circumstances (if any) prescribed by the regulations for the purposes of this
subsection.
68
Victimisation of trustees etc.
Prohibition
(1) A person must not commit an act of
victimisation against:
(a) a trustee of an employer‑sponsored
fund; or
(b) a responsible officer of a
corporate trustee of an employer‑sponsored fund.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Act of victimisation against trustee
(2) For the purposes of this section, a
person is taken to commit an act of victimisation against a trustee of an
employer‑sponsored fund if, and only if, the person subjects, or threatens to
subject, the trustee to a detriment on the grounds that:
(a) the trustee has fulfilled, is
fulfilling, or is proposing to fulfil, an obligation imposed on the trustee; or
(b) the trustee has exercised, is
exercising, or is proposing to exercise, the trustee’s powers in a particular
way.
Act of victimisation against officer of corporate
trustee
(3) For the purposes of this section, a
person is taken to commit an act of victimisation against a responsible officer
of a corporate trustee of an employer‑sponsored fund if, and only if, the
person subjects, or threatens to subject, the responsible officer to a
detriment on the grounds that:
(a) the trustee or officer has
fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on
the trustee or officer; or
(b) the trustee or officer has
exercised, is exercising, or is proposing to exercise, any of the trustee’s
powers or the officer’s powers, as the case may be, in a particular way.
Employers
(4) For the purposes of this section, an
employer is taken to subject an employee to a detriment if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her
employment; or
(c) alters the position of the
employee to the employee’s prejudice.
However, for the purposes of this section, an employer is
taken not to subject an employee to a detriment if the employer:
(a) permanently ceases to be an
employer‑sponsor of a superannuation fund of which the employee is a member; or
(b) temporarily ceases to contribute
to a superannuation fund in respect of a class of members in which the employee
is included; or
(c) reduces the level of contributions
to a superannuation fund in respect of a class of members in which the employee
is included.
Reasons
(5) In civil proceedings arising out of this
section:
(a) it is not necessary for the
plaintiff to prove the defendant’s reason for the alleged action; and
(b) it is a defence if the defendant
proves that the action was not motivated (whether in whole or in part) by the
alleged reason.
Obligations
(6) A reference in this section to an
obligation imposed on a trustee or a responsible officer is a reference to an
obligation imposed on the trustee or officer by this Act or the regulations, by
the governing rules of the entity concerned or otherwise.
Powers
(7) A reference in this section to the powers
of a trustee or a responsible officer is a reference to the powers conferred on
the trustee or the officer by this Act or the regulations, by the governing
rules of the entity concerned or otherwise.
Civil liability
(8) If:
(a) a person (the defendant)
commits an act of victimisation against:
(i) a trustee of an
employer‑sponsored fund; or
(ii) a responsible officer
of a corporate trustee of an employer‑sponsored fund; and
(b) the trustee or officer suffers
loss or damage because of the act of victimisation;
the trustee or officer may recover the amount of the loss
or damage by action against the defendant.
Special meaning of employee and employer
(9) The meaning of the expressions employee
and employer, when used in this section, is to be determined as
if subsections 12(3) and (8) of the Superannuation Guarantee
(Administration) Act 1992 had not been enacted. (Those subsections deem
certain contractors to be employees.)
68A
Conduct relating to fund membership
(1) A trustee of a regulated superannuation
fund, or an associate of a trustee of a regulated superannuation fund, must
not:
(a) supply, or offer to supply, goods
or services to a person; or
(b) supply, or offer to supply, goods or
services to a person at a particular price; or
(c) give or allow, or offer to give or
allow, a discount, allowance, rebate or credit in relation to the supply, or
the proposed supply, of goods or services to a person;
on the condition that one or more of the employees of the
person will be, or will apply or agree to be, members of the fund.
(2) However, subsection (1) does not
apply in relation to a supply of a kind prescribed in the regulations for the
purposes of this subsection.
(3) A trustee of a regulated superannuation
fund, or an associate of a trustee of a regulated superannuation fund, must not
refuse:
(a) to supply, or offer to supply,
goods or services to a person; or
(b) to supply, or offer to supply,
goods or services to a person at a particular price; or
(c) to give or allow, or offer to give
or allow, a discount, allowance, rebate or credit in relation to the supply, or
the proposed supply, of goods or services to a person;
for the reason that one or more of the employees of the
person are not, or have not applied or agreed to be, members of the fund.
(4) However, subsection (3) does not
apply in relation to a supply of a kind prescribed in the regulations for the
purposes of this subsection.
Civil liability
(5) If:
(a) a person (the offender)
contravenes subsection (1) or (3); and
(b) another person (the victim)
suffers loss or damage because of the contravention;
the victim may recover the amount of the loss or damage by
action against the offender.
(6) The action must be begun within 6 years
after the day on which the cause of action arose.
(7) This section does not affect any
liability that the offender or another person has under any other provision of
this Act or under any other law.
Part 8—In‑house asset
rules applying to regulated superannuation funds
Division 1—Object and interpretation
Subdivision A—General
69
Object of Part
The object of this Part is to set out
rules about the level of the in‑house assets of regulated superannuation funds.
69A
Sub‑funds to be treated as funds
A sub‑fund within a regulated
superannuation fund is taken for the purposes of this Part to be a regulated
superannuation fund if the sub‑fund satisfies the following conditions:
(a) the sub‑fund has separately
identifiable assets and separately identifiable beneficiaries; and
(b) the interest of each beneficiary
of the sub‑fund is determined by reference only to the conditions governing
that sub‑fund.
70A
The Regulator may determine a person to be a standard employer‑sponsor
(1) For the purposes of this Part, the
Regulator may determine in writing that a person, who is not a standard
employer‑sponsor of a regulated superannuation fund within the meaning of
subsection 16(2), is taken to be a standard employer‑sponsor of the fund.
(2) If the Regulator makes a determination
under subsection (1) or revokes a determination so made, the Regulator
must as soon as practicable after making or revoking the determination, inform a
trustee of the regulated superannuation fund concerned, in writing, of the
making or revocation of the determination.
Subdivision B—Part 8 associates
70B
Part 8 associates of individuals
For the purposes of this Part, each of
the following is a Part 8 associate of an individual (the primary
entity), whether or not the primary entity is in the capacity of
trustee:
(a) a relative of the primary entity;
(b) if the primary entity is a member
of a superannuation fund with fewer than 5 members:
(i) each other member of
the fund; and
(ii) if the fund is a
single member self managed superannuation fund whose trustee is a company—each
director of that company; and
(iii) if the fund is a
single member self managed superannuation fund whose trustees are
individuals—those individuals;
(c) a partner of the primary entity or
a partnership in which the primary entity is a partner;
(d) if a partner of the primary entity
is an individual—the spouse or a child of that individual;
(e) a trustee of a trust (in the
capacity of trustee of that trust), where the primary entity controls the trust;
(f) a company that is sufficiently
influenced by, or in which a majority voting interest is held by:
(i) the primary entity; or
(ii) another entity that is
a Part 8 associate of the primary entity because of another paragraph of
this section or because of another application of this paragraph; or
(iii) 2 or more entities
covered by the preceding subparagraphs.
70C
Part 8 associates of companies
For the purposes of this Part, each of
the following is a Part 8 associate of a company (the primary
entity), whether or not the primary entity is in the capacity of
trustee:
(a) a partner of the primary entity or
a partnership in which the primary entity is a partner;
(b) if a partner of the primary entity
is an individual—the spouse or a child of that individual;
(c) a trustee of a trust (in the
capacity of trustee of that trust), where the primary entity controls the
trust;
(d) another entity (in this paragraph
called the controlling entity) where the primary entity is
sufficiently influenced by, or a majority voting interest in the primary entity
is held by:
(i) the controlling
entity; or
(ii) another entity that is
a Part 8 associate of the controlling entity because of section 70B
or 70D, another paragraph of this section or another application of this
paragraph; or
(iii) 2 or more entities
covered by the preceding subparagraphs;
(e) another company (in this paragraph
called the controlled company) where the controlled company is
sufficiently influenced by, or where a majority voting interest in the
controlled company is held by:
(i) the primary entity; or
(ii) another entity that is
a Part 8 associate of the primary entity because of another paragraph of
this section or because of another application of this paragraph; or
(iii) 2 or more entities
covered by the preceding subparagraphs;
(f) if a third entity is a Part 8
associate of the primary entity because of paragraph (d) of this
subsection—an entity that is a Part 8 associate of that third entity
because of section 70B or 70D or because of another paragraph of this
section.
70D
Part 8 associates of partnerships
For the purposes of this Part, each of
the following is a Part 8 associate of a partnership (the primary
entity):
(a) a partner in the partnership;
(b) if a partner in the partnership is
an individual—any entity that is a Part 8 associate of that individual
because of section 70B;
(c) if a partner in the partnership is
a company—any entity that is a Part 8 associate of that company because of
section 70C.
70E
Meanings of terms used in sections 70B, 70C and 70D
Sufficient influence/majority voting interest
(1) For the purposes of sections 70B,
70C and 70D:
(a) a company is sufficiently
influenced by an entity or entities if the company, or a majority of its
directors, is accustomed or under an obligation (whether formal or informal),
or might reasonably be expected, to act in accordance with the directions,
instructions or wishes of the entity or entities (whether those directions,
instructions or wishes are, or might reasonably be expected to be, communicated
directly or through interposed companies, partnerships or trusts); and
(b) an entity or entities hold a
majority voting interest in a company if the entity or entities are in a
position to cast, or control the casting of, more than 50% of the maximum
number of votes that might be cast at a general meeting of the company.
Control of trust
(2) For the purposes of sections 70B,
70C and 70D, an entity controls a trust if:
(a) a group in relation to the entity
has a fixed entitlement to more than 50% of the capital or income of the trust;
or
(b) the trustee of the trust, or a
majority of the trustees of the trust, is accustomed or under an obligation
(whether formal or informal), or might reasonably be expected, to act in accordance
with the directions, instructions or wishes of a group in relation to the
entity (whether those directions, instructions or wishes are, or might
reasonably be expected to be, communicated directly or through interposed
companies, partnerships or trusts); or
(c) a group in relation to the entity
is able to remove or appoint the trustee, or a majority of the trustees, of the
trust.
Group in relation to an entity
(3) For the purposes of subsection (2):
group, in relation to an entity, means:
(a) the entity acting alone; or
(b) a Part 8 associate of the
entity acting alone; or
(c) the entity and one or more Part 8
associates of the entity acting together; or
(d) 2 or more Part 8 associates
of the entity acting together.
Definitions
(4) For the purposes of sections 70B,
70C and 70D:
company has the same meaning as in the Income
Tax Assessment Act 1997.
partnership has the same meaning as in the Income
Tax Assessment Act 1997.
Subdivision C—In‑house assets
71
Meaning of in‑house asset
Basic meaning
(1) For the purposes of this Part, an in‑house
asset of a superannuation fund is an asset of the fund that is a loan to, or an
investment in, a related party of the fund, an investment in a related trust of
the fund, or an asset of the fund subject to a lease or lease arrangement between
a trustee of the fund and a related party of the fund, but does not include:
(a) a life policy issued by a life
insurance company; or
(b) a deposit with an ADI; or
(c) an investment in a pooled
superannuation trust, where a trustee of the fund and the trustee of the pooled
superannuation trust acted at arm’s length in relation to the making of that
investment; or
(d) an asset of a public sector fund,
where the asset consists of an investment in securities issued under the
authority of:
(i) the Commonwealth or a
government of a State or a Territory; or
(ii) a public authority
constituted by or under a law of the Commonwealth, a State or a Territory,
where the public authority is neither a standard employer‑sponsor, nor an
associate of a standard employer‑sponsor, of the fund; or
(e) an asset which the Regulator, by
written notice given to a trustee of the fund, determines is not an in‑house
asset of the fund; or
(f) an asset which the Regulator, by legislative
instrument, determines is not an in‑house asset of:
(i) any fund; or
(ii) a class of funds in
which the fund is included; or
(g) if the superannuation fund has
fewer than 5 members—real property subject to a lease, or to a lease
arrangement enforceable by legal proceedings, between a trustee of the fund and
a related party of the fund, if, throughout the term of the lease or lease
arrangement, the property is business real property of the fund; or
(h) an investment in a widely held
unit trust; or
(i) property owned by the
superannuation fund and a related party as tenants in common, other than
property subject to a lease or lease arrangement between a trustee of the fund
and a related party; or
(j) an asset included in a class of
assets specified in the regulations:
(i) not to be in‑house
assets of any fund; or
(ii) not to be in‑house
assets of a class of funds to which the fund belongs.
For this purpose, a class of
assets may consist of, but is not limited to, assets that are investments in
entities that undertake, or do not undertake, specified activities.
Widely held trust
(1A) For the purposes of paragraph (1)(h),
a trust is a widely held unit trust if:
(a) it is a unit trust in which
entities have fixed entitlements to all of the income and capital of the trust;
and
(b) it is not a trust in which fewer
than 20 entities between them have:
(i) fixed entitlements to
75% or more of the income of the trust; or
(ii) fixed entitlements to
75% or more of the capital of the trust.
For this purpose, an entity and the Part 8 associates
of the entity are taken to be a single entity.
Agreements
(2) If:
(a) apart from this subsection, an
asset of a fund consists of a loan, an investment or an asset that is subject
to a lease or lease arrangement, other than an in‑house asset; and
(b) the loan, investment, lease or
lease arrangement was made as a result of entering into or carrying out an
agreement; and
(c) any of the persons who entered
into or carried out the agreement was aware that the result of carrying out the
agreement would be that:
(i) a loan would be made
to, an investment would be made in, or an asset would be subject to a lease or
lease arrangement with, a related party of the fund; or
(ii) an investment would be
made in a related trust of the fund;
then the asset is taken, for the purposes of this Part, to
be a loan to, an investment in, or an asset subject to a lease or lease
arrangement with, that related party or related trust, as the case requires.
Definition
(2A) In subsection (2):
agreement includes any arrangement,
understanding, promise or undertaking whether express or implied, and whether
or not enforceable, or intended to be enforceable, by legal proceedings.
Exceptions
(2B) Subsection (2) does not apply to an
investment referred to in paragraph 71(1)(a), (b), (c) or (h).
2 or more persons
(3) Subsection (2) does not stop the
same asset from being treated as if it were a loan to, an investment in, or an
asset subject to a lease or lease arrangement with, 2 or more persons.
The Regulator’s determination
(4) If:
(a) apart from this subsection, an
asset of a fund consists of a loan, an investment, or an asset subject to a
lease or lease arrangement, other than an in‑house asset; and
(b) the Regulator, by written notice
given to a trustee of the fund, determines that the asset is to be treated,
with effect from the day on which the notice is given, as if the asset were a
loan to, an investment in, or an asset subject to a lease or lease arrangement
with, a specified related party or related trust of the fund, including a
person taken to be a standard employer‑sponsor of the fund under section 70A;
then, despite paragraphs (1)(a) to (j), the asset is
taken, for the purposes of this Part, to be a loan to or an investment in the
related party or related trust, or an asset subject to a lease or lease
agreement between a trustee of the fund and the related party.
Paragraph (1)(e) determinations or paragraph (1)(j)
regulations may be retrospective
(5) A determination under paragraph (1)(e)
or regulations under paragraph (1)(j) may be expressed to have taken
effect at a time earlier than the time when the determination or regulations
were made.
Public sector superannuation funds
(7) For the purposes of applying this section
to determine what is an in‑house asset of a public sector superannuation fund,
a reference to a Part 8 associate of an employer‑sponsor of the fund is a
reference to a body corporate in respect of which either of the following
conditions is satisfied:
(a) the body corporate is sufficiently
influenced by, or a majority voting interest in the body corporate is held by,
the employer‑sponsor;
(b) the employer‑sponsor is
sufficiently influenced by, or a majority voting interest in the employer‑sponsor
is held by, the body corporate.
Limit on when investments in related trusts are in‑house
assets
(8) If, at a time:
(a) an asset (the investment
asset) of a superannuation fund is an investment in a related trust of
the fund; and
(b) the related trust is one described
in paragraph 67A(1)(b) in connection with a borrowing, by the trustee of the
fund, that is covered by subsection 67A(1); and
(c) the only property of the related
trust is the acquirable asset mentioned in that paragraph;
the investment asset is an in‑house asset of the fund at
the time only if the acquirable asset mentioned in that paragraph would be an
in‑house asset of the fund if it were an asset of the fund at the time.
(9) Subsections (1), (2) and (4) have
effect subject to subsection (8).
Subdivision D—Transitional arrangements in relation to in‑house assets
71A
Exceptions—pre‑11 August 1999 investments and loans
(1) If:
(a) at any time (the post‑test
time) after the test time, an asset of a superannuation fund consists
of:
(i) a loan or an
investment made before the test time, or made after the test time under a
contract entered into before the test time; or
(ii) a share or unit in a
unit trust, if the share, or the unit, as the case requires, was acquired
before the test time or under a contract entered into before the test time
(notwithstanding any payments on the share or unit made to the issuer of the
share or unit after the test time and before 1 July 2009); and
(b) if the asset was an asset of the
fund immediately before the test time—it was not an in‑house asset of the fund;
and
(c) if the asset was not an asset of
the fund immediately before the test time—it would not have been an in‑house
asset if it had been an asset of the fund immediately before the test time; and
(d) apart from this Subdivision, the
asset would be an in‑house asset of the fund at the post‑test time;
the asset is not an in‑house asset of the fund at the post‑test
time.
Payments on partly paid shares and units after 30 June 2009
(2) However, if:
(a) the post‑test time is after 30 June 2009; and
(b) the asset consists of a share or a
unit in a unit trust; and
(c) one or more payments on the share
or unit to the issuer of the share or unit has been made since 30 June 2009;
then:
(d) the asset is an in‑house asset of
the fund at the post‑test time; and
(e) subsection (3) applies to the
share or unit.
Reduced value for the purposes of working out value of
in‑house assets
(3) For the purposes of working out the
formula component Number of whole dollars in value of in‑house assets of
the fund under section 75 at the post‑test time, the value of the
share or unit at the post‑test time is taken to be the number of whole dollars
in the amount worked out as follows:
where:
excess amount means the total of the amounts
that, as at the post‑test time, had been paid after 30 June 2009 on the share or unit to the issuer of the share or unit.
market value of share or unit means the
market value of the share or unit as at the post‑test time.
total amount means the total of the amounts
that, as at the post‑test time had been paid (whether before or after 30 June 2009) on the share or unit to the issuer of the share or unit.
71B
Exceptions—pre‑11 August 1999 leases and lease arrangements
(1) If:
(a) at any time (the post‑test
time) after the test time, an asset of a superannuation fund consists
of an asset subject to a lease, or a lease arrangement, between a trustee of
the fund and a related party of the fund; and
(b) the asset was subject to a lease
or lease arrangement, or any uninterrupted sequence of leases and lease
arrangements, between a trustee of the fund and a related party, throughout the
period beginning immediately before the test time and ending at the post‑test
time; and
(c) apart from this section, the asset
would be an in‑house asset of the fund at the post‑test time;
the asset is not an in‑house asset of the fund at the post‑test
time.
(2) For the purposes of subsection (1),
if:
(a) before the test time, a lease or a
lease arrangement enforceable by legal proceedings, in respect of an asset, was
entered into between a trustee of a superannuation fund and a related party of
the fund; and
(b) the lease or lease arrangement
came into force after the test time;
the asset is taken to have been subject to a lease or a
lease arrangement, between a trustee of the fund and that related party,
immediately before the test time.
71C
Exceptions—transition period
Investments and loans
(1) If:
(a) at any time (the pre‑1 July
2001 time) during the period after the test time but before 1 July
2001, an asset of a superannuation fund consists of a loan or an investment
made during the transition period, other than under a contract entered into
before the beginning of that period; and
(b) if the asset had been an asset of
the fund immediately before the test time—the asset would not have been an in‑house
asset of the fund; and
(c) apart from this section, the asset
would be an in‑house asset of the fund at the pre‑1 July 2001 time;
the asset is not an in‑house asset of the fund at the pre‑1 July
2001 time. For this purpose, a loan or an investment is not made during the
transition period merely because a contract is entered into during that period
for the purpose of gaining interest, income, profit or gain.
Leases and lease arrangements
(2) If:
(a) at any time (the pre‑1 July
2001 time) during the period after the test time but before 1 July
2001, an asset of a superannuation fund consists of an asset subject to a
lease, or a lease arrangement, between a trustee of the fund and a related
party of the fund; and
(b) section 71B does not apply to
the asset at the pre‑1 July 2001 time; and
(c) the asset became subject to a
lease or lease arrangement between a trustee of the fund and a related party at
a time (the transition time) during the transition period; and
(d) the asset was subject to a lease
or a lease arrangement, or any uninterrupted sequence of leases and lease
arrangements, between a trustee of the fund and a related party, throughout the
period beginning at the transition time and ending at the pre‑1 July 2001
time; and
(e) apart from this section, the asset
would be an in‑house asset of the fund at the post‑test time;
the asset is not an in‑house asset of the fund at the pre‑1 July
2001 time.
71D
Exception—reinvestments
If:
(a) at any time (the post‑test
time) after the test time, an asset of a superannuation fund consists
of an investment (the post‑test time investment) in an
entity (the original entity) made during the period:
(i) beginning at the test
time; and
(ii) ending at the end of 30 June 2009; and
(b) the post‑test time investment is
not covered by section 71A; and
(c) if the fund had made the post‑test
time investment immediately before the test time, it would not have been an in‑house
asset of the fund; and
(d) the sum of the purchase price of
the post‑test time investment and any previous investment to which this section
applies does not, at the post‑test time, exceed the sum of the following
amounts:
(i) the sum of the amounts
of all dividends or trust distributions received after the test time, but
before the end of 30 June 2009, by the superannuation fund from the
original entity, which were derived from an investment in the original entity
made by the fund before the test time;
(ii) the sum of the amounts
of all dividends or trust distributions received after the test time, but
before the end of 30 June 2009, by the superannuation fund, which were
derived from investments of dividends and trust distributions taken into
account under subparagraph (i) or this subparagraph;
the asset is not an in‑house asset of the fund at the post‑test
time.
71E
Exception—certain geared investments
(1) If:
(a) at any time (the post‑test
time) after the test time, an asset of a superannuation fund that has
fewer than 5 members consists of an investment (the post‑test time
investment) in a unit trust or a company (the first entity)
made during the period:
(i) beginning at the test
time; and
(ii) ending at the end of 30 June 2009; and
(b) immediately before the test time,
another asset (other than an in‑house asset) of the superannuation fund
consisted of an investment (the prior investment) in the first
entity; and
(c) immediately before the test time,
an amount (the principal) consisting of the principal of a loan
was owed by the first entity to any entity other than the superannuation fund;
and
(d) apart from this Subdivision, the
post‑test time investment would be an in‑house asset of the fund at the post‑test
time; and
(e) the trustee, or the trustees, of
the fund makes a written election, within:
(i) the period of 12
months beginning on the day on which this section commenced; or
(ii) such later period as
is prescribed by the regulations;
that section 71E is to
apply to all post‑test time investments of the fund in that entity;
Note: Under subsection 103(2A), the trustee, or the
trustees, of the fund must keep the election, or a copy of it, for 10 years
after it is made.
then subsection (2) or (3), as the case requires,
applies, and is taken always to have applied, to the post‑test time investment.
Sum of purchase prices of post‑test time investments
does not exceed the principal—investment not an in‑house asset
(2) The post‑test time investment is not an
in‑house asset of the fund at the post‑test time if the sum of the following
amounts does not exceed the amount of the principal:
(a) the purchase price of the post‑test
time investment;
(b) the purchase price of any previous
post‑test time investment in the first entity by the fund.
Sum of purchase prices of post‑test time investments
exceeds the principal—formula to be applied
(3) If the sum of the following:
(a) the purchase price of the post‑test
time investment;
(b) the purchase price of any previous
post‑test time investment in the first entity by the fund;
exceeds the amount of the principal, then:
(c) the post‑test time investment is
an in‑house asset of the fund at the post‑test time; and
(d) if the post‑test time investment
is the first post‑test time investment in respect of which the sum of the
amounts referred to in paragraphs (a) and (b) exceeds the amount of the
principal—subsection (4) applies to the investment.
Reduced value for the purposes of working out value of
in‑house assets
(4) For the purposes of working out the
formula component Number of whole dollars in value of in‑house assets of
the fund under section 75 at the post‑test time, the value of the
post‑test time investment at the post‑test time is taken to be the number of
whole dollars in the amount worked out as follows:
where:
excess amount means the amount of the excess
under subsection (3).
market value of post‑test time investment
means the market value of the post‑test time investment as at the post‑test
time.
purchase price of post‑test time investment
means the purchase price of the post‑test time investment.
Effect of election
(5) If the trustee, or the trustees, of a
fund make an election under paragraph (1)(e) in respect of the post‑test
time investments of the fund in an entity, then:
(a) sections 71A and 71D do not
apply, and are taken never to have applied, to any post‑test time investment by
the fund in that entity; and
(b) this section applies, and is taken
always to have applied, to any post‑test time investment of the fund in that
entity.
Note: This means that if a fund makes an election,
this section would apply to all investments in the entity after the test time
and before 1 July 2009, and sections 71A and 71D would not apply to
such investments.
Application of section to loans
(6) A reference in this section to an
investment in a trust or company is taken to include a reference to a loan to a
trust or company. For this purpose, the purchase price of the loan is taken to
be the principal of the loan at the time at which the loan was made.
71EA
Relationship breakdowns
Scope
(1) This section applies if:
(a) a trustee or an investment manager
of a regulated superannuation fund (the acquiring fund) acquires
an asset:
(i) for the benefit of a
particular member of the acquiring fund; and
(ii) from a trustee or
investment manager of another regulated superannuation fund (the transferring
fund); and
(b) at the time of the acquisition:
(i) the member and his or
her spouse or former spouse are separated; and
(ii) there is no reasonable
likelihood of cohabitation being resumed; and
(c) the acquisition occurs because of
reasons directly connected with the breakdown of the relationship between the
spouses or former spouses; and
(d) the asset represents the whole, or
a part, of either:
(i) the member’s own interests
in the transferring fund; or
(ii) the member’s
entitlements as determined under Part VIIIB of the Family Law Act 1975
in relation to the interests of the member’s spouse, or former spouse, in the
transferring fund.
(2) For the purposes of subsection (1),
the question whether the spouses, or former spouses, have separated is to be
determined in the same way as it is for the purposes of section 48 of the Family
Law Act 1975 (as affected by sections 49 and 50 of that Act).
Acquiring fund taken to have always held asset
(3) For the purposes of applying this
Subdivision to the asset at or after the time (the acquisition time)
the trustee or investment manager of the acquiring fund acquires the asset,
treat:
(a) the acquisition as having occurred
at the time the trustee or investment manager of the transferring fund acquired
the asset; and
(b) anything done by, for or in
relation to the transferring fund in relation to the asset before the
acquisition time as having been done by, for or in relation to the acquiring
fund; and
(c) anything done by, for or in
relation to the trustee or investment manager of the transferring fund in
relation to the asset before the acquisition time as having been done by, for
or in relation to the trustee or investment manager of the acquiring fund.
Section 71E elections
(4) In addition to their effect apart from
this subsection, subsection 103(2A) (duty to keep record of election) and
subsection 103(3), to the extent that it relates to subsection 103(2A), also
have the effect they would have if subsection (3) of this section applied
to them.
Note: This means that the trustees of both the
transferring fund and the acquiring fund must retain, in accordance with
subsection 103(2A), any election made under section 71E in relation to the
transferring fund before the transfer of the asset.
(5) A person commits an offence if:
(a) the person is a trustee of the
transferring fund; and
(b) just before the acquisition time,
the trustee had a duty under subsection 103(2A) to retain an election, or a
copy of an election, under section 71E in relation to the transferring
fund; and
(c) the trustee does not, within 14
days after the acquisition time, give the election or copy to a trustee or
investment manager of the acquiring fund.
Penalty: 50 penalty units.
Note: If the trustee gives the election to the
acquiring fund, he or she must retain a copy of the election: see
subsection (4).
(6) An offence against subsection (5) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
71F
Meaning of certain terms used in Subdivision D
In this Subdivision:
test time means the end of 11 August 1999.
transition period means the period:
(a) beginning at the test time; and
(b) ending on the day on which this
section commenced.
Subdivision E—Other provisions in relation to in‑house assets
72 How
this Part applies if there are 2 or more employer‑sponsors of whom at least one
is an unrelated employer‑sponsor
(1) For the purposes of this section:
(a) a standard employer‑sponsor (the first
employer‑sponsor) of a superannuation fund is an unrelated employer‑sponsor
of the fund if, and only if, there is no other standard employer‑sponsor of the
fund who is a Part 8 associate of the first employer‑sponsor; and
(b) 2 or more standard employer‑sponsors
of a superannuation fund are related to each other if they are Part 8
associates.
(2) For the purposes of this section:
(a) the class of the in‑house assets
of a fund that corresponds to a particular unrelated employer‑sponsor is the
class of in‑house assets that consists of:
(i) loans to, investments
in, or assets subject to leases or lease arrangements with, the employer‑sponsor
or a Part 8 associate of the employer‑sponsor; or
(ii) loans to, investments
in, or assets subject to leases or lease arrangements with, a standard employer‑sponsored
member of the fund, in respect of whom the employer‑sponsor contributes to the
fund, or a Part 8 associate of such a member; or
(iii) investments in a trust
that is controlled by an entity referred to in subparagraph (i) or (ii);
and
(b) the class of the in‑house assets
of a fund that corresponds to 2 or more employer‑sponsors who are related to
each other is the class of in‑house assets that consists of:
(i) loans to, investments
in, or assets subject to leases or lease arrangements with, any of them or a
Part 8 associate of any of them; or
(ii) loans to, investments
in, or assets subject to leases or lease arrangements with, a standard employer‑sponsored
member of the fund, in respect of whom any of them contributes to the fund, or
a Part 8 associate of such a member; or
(iii) investments in a trust
that is controlled by an entity referred to in subparagraph (i) or (ii).
(3) Subsections (4) and (5) apply if:
(a) there are 2 or more unrelated
employer‑sponsors of a superannuation fund (whether or not there are also any
employer‑sponsors of the fund who are related to each other); or
(b) there are 2 or more employer‑sponsors
of a superannuation fund who are related to each other and there are also one
or more unrelated employer‑sponsors of the fund.
(4) This Part does not apply in relation to
the fund in relation to the in‑house assets of the fund as a whole.
(5) However, this Part applies in relation to
the fund separately in relation to each of the corresponding classes of in‑house
assets of the fund.
(6) This section does not apply to a self
managed superannuation fund.
73
Cost of in‑house asset
(1) For the purposes of this Part, if:
(a) an asset of a superannuation fund
was acquired:
(i) without consideration;
or
(ii) for consideration
other than the arm’s length value of the asset when it was acquired; or
(b) the whole or a part of the
consideration for which an asset of a superannuation fund was acquired was not
money;
the cost of the asset is taken to be the arm’s length
value of the asset when it was acquired.
(2) In this
section:
arm’s length value, in relation to an asset,
means the amount that the acquirer of the asset could reasonably be expected to
have been required to pay to acquire the asset under a transaction where the
parties to the transaction are dealing with each other at arm’s length in
relation to the transaction.
74
Historical cost ratio of fund’s in‑house assets
For the
purposes of this Part, the historical cost ratio of a fund’s in‑house assets is
the percentage worked out using the formula:
75
Market value ratio of fund’s in‑house assets
(1) For the
purposes of this Part, the market value ratio of a fund’s in‑house assets is the
percentage worked out using the formula:
(2) Where,
because of subsections 72(4) and (5), this Part applies separately to each of
the corresponding classes of in‑house assets of a superannuation fund, the
market value ratio of the in‑house assets of each corresponding class is a
percentage worked out using the formula:
Division 2—Historical cost ratio of fund’s in‑house assets
76
Private sector funds established on or after 12 March 1985—historical cost ratio for the 1994‑95 year of income
(1) This section applies to a regulated
superannuation fund, if the fund is a private sector fund established on or
after 12 March 1985.
(2) At all times during the fund’s 1994‑95 year of income when the fund was in existence, the historical cost ratio of the fund’s
in‑house assets must not exceed 10%.
77
Private sector funds established before 12 March 1985—historical cost ratio for the 1994‑95 year of income
(1) This section applies to a regulated
superannuation fund, if the fund is a private sector fund established before 12 March 1985.
(2) At all times during the fund’s 1994‑95 year of income when the fund was in existence, the historical cost ratio of the fund’s
in‑house assets must not exceed whichever is the greater of the following
percentages:
(a) whichever is the lesser of the
following percentages:
(i) the percentage equal
to the historical cost ratio of the fund’s in‑house assets as at the end of 11 March 1985;
(ii) 70%;
(b) 10%.
(3) Section 72 is to be ignored in
working out the percentage mentioned in subparagraph (2)(a)(i).
78
Public sector funds established on or after 1 July 1990—historical cost ratio for the 1994‑95 year of income
(1) This section applies to a regulated
superannuation fund, if the fund is a public sector fund established on or
after 1 July 1990.
(2) At all times during the fund’s 1994‑95 year of income when the fund was in existence, the historical cost ratio of the fund’s
in‑house assets must not exceed 10%.
79
Public sector funds established before 1 July 1990—historical cost ratio for the 1994‑95 year of income
(1) This section applies to a regulated
superannuation fund, if the fund is a public sector fund established before 1 July 1990.
(2) At all times during the fund’s 1994‑95 year of income when the fund was in existence, the historical cost ratio of the fund’s
in‑house assets must not exceed whichever is the greater of the following
percentages:
(a) the percentage equal to the
historical cost ratio of the fund’s in‑house assets as at the end of 1 July 1990;
(b) 10%.
(3) Section 72 is to be ignored in
working out the percentage mentioned in paragraph (2)(a).
80 All
funds—historical cost ratio for the 1995‑96 year of income, the 1996‑97 year of
income and the 1997‑98 year of income
(1) This section applies to a regulated
superannuation fund.
(2) At all times during the period:
(a) beginning at the beginning of the
fund’s 1995‑96 year of income; and
(b) ending at the end of the fund’s 1997‑98 year of income;
when the fund was in existence, the historical cost ratio
of the fund’s in‑house assets must not exceed 10%.
Division 3—Market value ratio of fund’s in‑house assets
80A
Division not applicable to certain funds
A superannuation fund is taken not to
have been required to comply with this Division in respect of a year of income
if:
(a) Division 3A applied to the
fund in respect of that year of income; and
(b) an actuary has certified that the
fund complied with that Division in respect of that year of income.
81 All
funds—market value ratio for the 1998‑99 year of income and the 1999‑2000 year
of income
(1) This section applies to a regulated
superannuation fund.
(2) The market value ratio of the fund’s in‑house
assets as at the end of:
(a) the fund’s 1998‑99 year of income;
or
(b) the fund’s 1999‑2000 year of
income;
must not exceed 10%.
82 All
funds—market value ratio for the 2000‑2001 year of income and later years of
income
(1) This section applies to a regulated
superannuation fund.
(2) If the market value ratio of the fund’s
in‑house assets as at the end of:
(a) the fund’s 2000‑2001 year of
income; or
(b) a later year of income;
exceeds 5%, the trustee of the fund, or, if the fund has a
group of individual trustees, the trustees of the fund, must prepare a written
plan.
(3) The plan
must specify the amount (the excess amount) worked out using the
formula:
(4) The plan must
set out the steps which the trustee proposes, or, if the fund has a group of
individual trustees, the trustees propose, to take in order to ensure that:
(a) one or more of the fund’s in‑house
assets held at the end of that year of income are disposed of during the next
following year of income; and
(b) the value of the assets so
disposed of is equal to or more than the excess amount.
(5) The plan must be prepared before the end
of the next following year of income.
(6) Each trustee of the fund must ensure that
the steps in the plan are carried out.
83
Certain new in‑house asset investments prohibited
(1) This section applies to a regulated
superannuation fund.
(2) If the market value ratio of the fund’s
in‑house assets exceeds 5%, a trustee of the fund must not acquire an in‑house
asset.
(3) If the market value ratio of the fund’s
in‑house assets does not exceed 5%, a trustee of the fund must not acquire an
in‑house asset if the acquisition would result in the market value ratio of the
fund’s in‑house assets exceeding 5%.
(4) For the avoidance of doubt, a reference
in this section to acquiring an in‑house asset includes a reference to making
an investment or a loan, or entering into a lease or a lease arrangement, if
the resulting loan or investment, or the asset subject to the lease or the
lease arrangement, would be an in‑house asset.
Division 3A—Limit on in‑house assets of certain defined benefit funds
83A Definitions
In this Division, unless the contrary
intention appears:
base amount, in relation to a
defined benefit fund at a particular time, means 120% of:
(a) the fund’s liabilities in respect
of vested benefits; or
(b) the fund’s accrued actuarial liabilities;
at that time, whichever is the greater.
defined benefit fund means:
(a) a public sector superannuation
scheme that:
(i) is a regulated
superannuation fund; and
(ii) has at least one
defined benefit member; or
(b) a regulated superannuation fund
(other than a public sector superannuation scheme):
(i) that has at least one
defined benefit member; and
(ii) some or all of the
contributions to which (being contributions out of which, together with
earnings on those contributions, the benefits are to be paid) are not paid into
a fund, or accumulated in a fund, in respect of any individual member but are
paid into and accumulated in a fund in the form of an aggregate amount.
defined benefit member means a member
entitled, on retirement or termination of his or her employment, to be paid a
benefit defined, wholly or in part, by reference to either or both of the
following:
(a) the amount of:
(i) the member’s salary at
a particular date, being the date of the termination of the member’s employment
or of the member’s retirement or an earlier date; or
(ii) the
member’s salary averaged over a period before retirement;
(b) a specified amount.
fund’s accrued actuarial liabilities, at
a particular time, means the total value, as certified by an actuary, of the
future benefit entitlements of members of the fund in respect of membership up
to that time based on assumptions about future economic conditions and the
future of matters affecting membership of the fund, being assumptions made in
accordance with applicable professional actuarial standards (if any).
fund’s liabilities in respect of vested benefits,
at a particular time, means the total value of the benefits payable from the
fund to which the members of the fund would be entitled if they all voluntarily
terminated their service with their employers at that time.
listed public company means a company any of
the shares in the capital of which are listed for quotation in the official
list of a stock exchange in Australia or elsewhere.
maximum permitted amount, in relation to a
defined benefit fund at a particular time, means the sum of:
(a) an amount equal to the prescribed
percentage of the base amount in relation to the fund at that time; and
(b) the amount (if any) by which the
market value of the fund’s assets at that time exceeds that base amount.
prescribed percentage means:
(a) where the expression is used in
relation to a time that occurs during the 1998‑99 year of income or the 1999‑2000
year of income—10%; or
(b) where the expression is used in
relation to a time that occurs during a later year of income—5%.
voting share has the same meaning as in the Corporations
Act 2001.
83B
Application of Division
(1) This
Division applies to a superannuation fund in respect of the fund’s 1998‑99 year
of income or a later year of income if, and only if:
(a) the fund is a defined benefit
fund; and
(b) at the end of that year of income
the employer‑sponsor was a listed public company or an associate of a listed
public company; and
(c) the market value of the fund’s
assets at the end of that year of income was not less than the base amount in
relation to the fund at that time; and
(d) the trustee, or the trustees, of
the fund have decided that this Division is to apply to the fund in respect of
that year of income.
(2) If the trustee, or the trustees, of the
fund make a decision referred to in paragraph (1)(d), each trustee must
ensure that the decision is recorded in writing.
83C
Maximum permitted market value of in‑house assets
The market value of the fund’s in‑house
assets at the end of a year of income must not exceed the maximum permitted
amount in relation to the fund at that time.
83D
Limit on in‑house assets
(1) The market value of the fund’s in‑house
assets (other than shares in the capital of listed public companies) at the end
of a year of income must not exceed the prescribed percentage of the base
amount in relation to the fund at that time.
(2) The fund’s in‑house assets at the end of
a year of income must not include more than 5% of the voting shares in any
listed public company that is the employer‑sponsor or is an associate of the
employer‑sponsor.
83E Acquisition of in‑house assets prohibited in
certain circumstances
If the market value of the fund’s in‑house
assets at the end of a year of income exceeds the prescribed percentage of the
base amount in relation to the fund at that time, a trustee of the fund must
not buy, or enter into any contract to buy, on behalf of the fund any in‑house
assets until the time when an actuary certifies that the market value of the
fund’s in‑house assets has ceased to exceed the prescribed percentage of the
base amount in relation to the fund.
Division 4—Enforcement
84 In‑house
asset rules must be complied with
(1) Each trustee of a regulated superannuation
fund must take all reasonable steps to ensure that the provisions of Division 2,
and either Division 3 or 3A (whichever is applicable), are complied with.
(2) Subsection (1) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or of being involved in a
contravention of, that subsection.
(3) A contravention of subsection (1)
does not affect the validity of a transaction.
Division 5—Anti‑avoidance
85
Prohibition of avoidance schemes
Prohibition
(1) A person must not enter into, commence to
carry out, or carry out, a scheme if the person entered into, commenced to
carry out, or carried out the scheme or any part of the scheme with the
intention that:
(a) the scheme would result, or be
likely to result, in an artificial reduction in the market value ratio of the
fund’s in‑house assets; and
(b) that artificial reduction would
avoid the application of any provision of this Part to the fund.
Civil penalty provision
(2) Subsection (1) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or being involved in a
contravention of, that subsection.
Validity of transaction not affected by contravention
of subsection (1)
(3) A contravention of subsection (1)
does not affect the validity of a transaction.
Scheme
(4) In this section:
scheme means:
(a) any agreement, arrangement,
understanding, promise or undertaking:
(i) whether express or
implied; or
(ii) whether or not
enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal,
action, course of action or course of conduct, whether unilateral or otherwise.
Part 9—Equal representation of employers and members—employer‑sponsored
funds
86
Object of Part
The object of this Part is to set out
rules about the representation of employers and members in relation to the
management and control of standard employer‑sponsored funds.
87 Consequences
of non‑compliance with this Part
It is not an offence to contravene this
Part and a failure to comply with this Part does not result in the invalidity
of a transaction. However, a contravention of this Part may result in a fund
being directed under section 63 not to accept any contributions made to
the fund by an employer‑sponsor (see subsection 63(6)).
88
This Part does not apply if acting trustee appointed under Part 17
This Part does not apply to a fund if
the fund has an acting trustee appointed under Part 17.
89
Basic equal representation rules
Basic rule
(1) For the purposes of this Part, a fund
complies with the basic equal representation rules if:
(a) both:
(i) the fund has a group
of individual trustees;
(ii) the group of trustees
consists of equal numbers of employer representatives and member
representatives; or
(b) both:
(i) the fund has a single
corporate trustee;
(ii) the board of the
corporate trustee consists of equal numbers of employer representatives and
member representatives.
Additional independent trustee or additional
independent director
(2) For the purposes of the application of
the basic equal representation rules to a fund, a group of trustees, or the
board of a corporate trustee, is taken to consist of equal numbers of employer
representatives and member representatives if:
(a) the group or board includes an
additional independent trustee or an additional independent director, as the
case may be; and
(b) the additional independent trustee
or additional independent director, as the case may be, is appointed at the
request of the employer representatives, or the member representatives, who are
the members of the group or board; and
(c) provision is made in the governing
rules for the appointment of the independent additional trustee or additional
independent director, as the case may be; and
(d) the governing rules do not allow
the additional independent trustee or additional independent director, as the
case may be, to exercise a casting vote in any proceedings of the group or
board concerned.
Vacancy
(3) For the purposes of the application of
the basic equal representation rules to a fund, if:
(a) a vacancy occurs in the membership
of a group of trustees or of the board of a corporate trustee; and
(b) immediately before the vacancy
occurred, the fund complied with the basic equal representation rules; and
(c) the vacancy is filled within 90
days after it occurred; and
(d) immediately after the vacancy is
filled, the fund complies with the basic equal representation rules;
the fund is taken to have complied with the basic equal
representation rules at all times during the period of the vacancy.
90 Pre‑1 July
1995 rules—funds with fewer than 200 members
Application
(1) This section applies to a standard
employer‑sponsored fund (other than a public offer superannuation fund) with
fewer than 200 members, where:
(a) the fund is a private sector fund
established on or after 16 December 1985; or
(b) the fund is a public sector fund
established on or after 25 May 1988; or
(c) if there are 2 or more standard
employer‑sponsors of the fund—any one of those employer‑sponsors is not an
associate of any other of those employer‑sponsors.
Pre‑1 July 1995
(2) This section does not apply on or after 1 July 1995.
Rules
(3) The fund must comply with:
(a) the basic equal representation
rules; or
(b) the alternative agreed
representation rule set out in subsection (4).
Alternative agreed representation rule
(4) For the purposes of this section, a fund
complies with the alternative agreed representation rule if any of the trustees
of the fund are appointed following nomination by agreement between:
(a) either:
(i) the members of the
fund; or
(ii) a trade union, or
other organisation, representing the interests of those members; and
(b) either:
(i) the employer or
employers of those members; or
(ii) an organisation
representing the interests of that employer or those employers.
91 Pre‑1 July
1995 rules—funds with 200 or more members
Application
(1) This section applies to a standard
employer‑sponsored fund with 200 or more members, where:
(a) the fund is a private sector fund
established on or after 16 December 1985; or
(b) the fund is a public sector fund
established on or after 25 May 1988; or
(c) if there are 2 or more standard
employer‑sponsors of the fund—any one of those employer‑sponsors is not an
associate of any other of those employer‑sponsors.
Pre‑1 July 1995
(2) This
section does not apply on or after 1 July 1995.
Public offer funds
(3) If the
fund is a public offer superannuation fund:
(a) either:
(i) the trustee of the
fund must be an independent trustee; or
(ii) the fund must comply
with the basic equal representation rules; and
(b) if the regulations provide that
the fund is subject to rules about the existence, number and functions of
policy committees (prescribed policy committees)—the fund must
comply with those rules; and
(c) each prescribed policy committee
must consist of equal numbers of employer representatives and member representatives.
Non‑public offer funds
(4) If the fund is not a public offer
superannuation fund, the fund must comply with the basic equal representation
rules.
Transitional
(5) If, at a particular time, the number of
members of a fund increases from a number less than 200 to 200 or more:
(a) the trustee of the fund must make
such arrangements (if any) as are necessary to enable the fund to comply with
this section; and
(b) the fund does not have to comply
with this section during the period:
(i) beginning at that
time; and
(ii) ending at whichever is
the earlier of the following times:
(A) the time
at which such arrangements are made;
(B) the end
of 90 days.
92
Post‑30 June 1995 rules—funds with more than 4, but fewer than 50, members
Application
(1) This section applies to a standard
employer‑sponsored fund with more than 4, but fewer than 50, members.
Post‑30 June 1995
(2) This section applies on and after 1 July 1995.
Public offer funds
(3) If the fund is a public offer
superannuation fund:
(a) either:
(i) the trustee of the
fund must be an independent trustee; or
(ii) the fund must comply
with the basic equal representation rules; and
(b) if the regulations provide that
the fund is subject to rules about the existence, number and functions of
policy committees (prescribed policy committees)—the fund must
comply with those rules; and
(c) each prescribed policy committee
must consist of equal numbers of employer representatives and member
representatives.
Non‑public offer funds
(4) If the fund is not a public offer
superannuation fund, the fund must comply with:
(a) the basic equal representation
rules; or
(b) the alternative agreed
representation rule set out in subsection (5); or
(c) an arrangement in relation to the
management and control of the fund that:
(i) has been agreed to
between a majority of the members of the fund and the employer, or employers,
of those members; and
(ii) is approved by APRA in
writing.
Arrangement approval
(4A) When deciding whether or not to approve an
arrangement under subparagraph (4)(c)(ii), APRA must have regard to any
written guidelines determined by APRA under this subsection.
(4B) The approval of the arrangement given under
subparagraph (4)(c)(ii) (the arrangement approval):
(a) is subject to the conditions set
out in the approval (if any); and
(b) may be revoked by APRA by written
notice given to a trustee of the fund.
(4C) Without limiting paragraph (4B)(b),
APRA may revoke an arrangement approval if:
(a) APRA is satisfied that there has
been a contravention of a condition to which the approval is subject; or
(b) a trustee of the fund applies in
writing for its revocation.
(4D) APRA may vary or revoke the conditions of
the arrangement approval by written notice given to a trustee of the fund.
Alternative agreed representation rule
(5) For the purposes of this section, a fund
complies with the alternative agreed representation rule if:
(a) there is a single trustee of the
fund who is a constitutional corporation; and
(b) the trustee is appointed following
nomination by agreement between:
(i) a majority of the
members of the fund; and
(ii) the employer or
employers of those members; and
(c) the trustee is an RSE licensee;
and
(ca) a condition imposed under section 29EA
on the RSE licensee’s RSE licence requires the RSE licensee to ensure that the
fund, or a class of funds to which the fund belongs, complies with the
alternative agreed representation rule whenever this section applies to the
fund; and
(d) the trustee is not an associate of
a standard employer‑sponsor of the fund.
Transitional
(13) If, at a
particular time, the number of members of a fund increases from a number less
than 5 to 5 or more, but less than 50:
(a) the trustee of the fund must make
such arrangements (if any) as are necessary to enable the fund to comply with
this section; and
(b) the fund does not have to comply
with this section during the period beginning at that time and ending:
(i) at the time at which
such arrangements are made; or
(ii) 90 days after that
time;
whichever is the earlier.
93
Post‑30 June 1995 rules—funds with more than 49 members
Application
(1) This section applies to a standard
employer‑sponsored fund with more than 49 members.
Post‑30 June 1995
(2) This section applies on and after 1 July 1995.
Public offer funds
(3) If the fund is a public offer
superannuation fund:
(a) either:
(i) the trustee of the
fund must be an independent trustee; or
(ii) the fund must comply
with the basic equal representation rules; and
(b) if the regulations provide that
the fund is subject to rules about the existence, number and functions of
policy committees (prescribed policy committees)—the fund must
comply with those rules; and
(c) each prescribed policy committee
must consist of equal numbers of employer representatives and member
representatives.
Non‑public offer funds
(4) If the fund is not a public offer
superannuation fund, the fund must comply with the basic equal representation
rules.
Transitional
(5) If, at a particular time, the number of
members of a fund increases:
(a) from a number less than 5 to 50 or
more; or
(b) from a number greater than 4, but
less than 50, to 50 or more (a paragraph (b) fund);
then:
(c) the trustee of the fund must make
such arrangements (if any) as are necessary to enable the fund to comply with
this section; and
(d) the fund does not have to comply
with this section during the period beginning at that time and ending:
(i) at the time at which
such arrangements are made; or
(ii) 90 days after that
time;
whichever is the earlier; and
(e) for a paragraph (b)
fund—despite subsection 92(1), the fund must comply with subsection 92(3) or
(4) during the period of time referred to in paragraph (d).
93A A
trustee who is an employer‑sponsor of a fund may still be an independent
trustee
(1) For the purposes of subparagraphs
92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund
who is an employer‑sponsor of the fund will be an independent trustee of the
fund:
(a) if the trustee satisfies all the
requirements of the definition of independent trustee in
section 10; or
(b) if:
(i) the trustee together
with any other employer‑sponsors of the fund who are associates of the trustee
are employer‑sponsors of not more than the allowable percentage of the members
of the fund; and
(ii) the value of the
accrued benefits of those members of the fund who have as an employer‑sponsor
either the trustee or an associate of the trustee is not more than the
allowable percentage of the value of the assets of the fund; and
(iii) the trustee satisfies
the requirements in paragraphs (a), (c), (d) and (e) of the definition of
independent trustee in section 10.
(2) The allowable percentage of the members
of the fund is 10% or such higher percentage as is approved by APRA by notice
in writing given to the trustee.
(3) The allowable percentage of the value of
the assets of the fund is 10% or such higher percentage as is approved by APRA
by notice in writing given to the trustee.
(4) If APRA approves a higher percentage
under subsection (2) or (3), the approval may be subject to such
conditions (if any) as are specified in the notice.
(5) An approval, including any conditions to
which the approval is subject, may be varied at any time by APRA by notice in
writing given to the trustee.
(6) APRA may only exercise the power
conferred under subsection (2) or (3) after considering:
(a) the effect that the approval of a
higher percentage will have on the likelihood of the trustee performing its
functions independently and impartially; and
(b) all other relevant circumstances.
Part 10—Provisions applying only to approved deposit funds
94
Object of Part
The object of this Part is to set out
rules about borrowing by the trustees of approved deposit funds.
95
Borrowing
(1) Except with the approval of APRA under subsection (2)
or except as provided by subsection (3), the trustee of an approved
deposit fund must not borrow money.
(2) APRA may approve a borrowing by the
trustee of an approved deposit fund if the trustee satisfies APRA that special
circumstances exist that justify the borrowing.
(3) Subsection (1) does not prohibit the
trustee of an approved deposit fund from borrowing money if:
(a) the purpose of the borrowing is to
enable the trustee to cover settlement of a transaction for the acquisition of
any of the following:
(i) bonds, debentures,
stock, bills of exchange or other securities;
(ii) shares in a company;
(iii) units in a unit trust;
(iv) futures contracts;
(v) forward contracts;
(vi) interest rates swap
contracts;
(vii) currency swap
contracts;
(viii) forward exchange rate
contracts;
(ix) forward interest rate
contracts;
(x) a right or option in
respect of such a security, share, unit, contract or policy;
(xi) any similar financial
instrument;
(xii) foreign currency; and
(b) both:
(i) at the time the
relevant investment decision was made, it was likely that the borrowing would
not be needed; and
(ii) the borrowing is not
taken, under a determination made, by legislative instrument, by APRA, to be
exempt from this paragraph; and
(c) the period of the borrowing does
not exceed 7 days; and
(d) if the borrowing were to take
place, the total amount borrowed by the trustee would not exceed 10% of the
value of the assets of the fund.
(5) Subsection (1) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or of being involved in a
contravention of, that subsection.
Part 11—Provisions applying only to pooled superannuation trusts
96
Object of Part
The object of this Part is to set out
special rules applying only to pooled superannuation trusts.
97
Borrowing
(1) Subject to subsection (2), the
trustee of a pooled superannuation trust must not borrow money.
(2) Subsection (1) does not prohibit the
trustee of a pooled superannuation trust from borrowing money if:
(a) the purpose of the borrowing is to
enable the trustee to make a payment to a beneficiary in the trust which the
trustee is required to make by law or by the governing rules and which, apart
from the borrowing, the trustee would not be able to make; and
(b) the period of the borrowing does
not exceed 90 days; and
(c) if the borrowing were to take
place, the total amount borrowed by the trustee would not exceed 10% of the
value of the assets of the trust.
(3) Subsection (1) does not prohibit the
trustee of a pooled superannuation trust from borrowing money if:
(a) the purpose of the borrowing is to
enable the trustee to cover settlement of a transaction for the acquisition of
any of the following:
(i) bonds, debentures,
stock, bills of exchange or other securities;
(ii) shares in a company;
(iii) units in a unit trust;
(iv) futures contracts;
(v) forward contracts;
(vi) interest rates swap
contracts;
(vii) currency swap
contracts;
(viii) forward exchange rate
contracts;
(ix) forward interest rate
contracts;
(x) a right or option in
respect of such a security, share, unit, contract or policy;
(xi) any similar financial
instrument;
(xii) foreign currency; and
(b) both:
(i) at the time the
relevant investment decision was made, it was likely that the borrowing would
not be needed; and
(ii) the borrowing is not
taken, under a determination made, by legislative instrument, by APRA, to be
exempt from this paragraph; and
(c) the period of the borrowing does
not exceed 7 days; and
(d) if the borrowing were to take
place, the total amount borrowed by the trustee would not exceed 10% of the
value of the assets of the trust.
98
Lending to unit‑holders prohibited
The trustee or an investment manager of
a pooled superannuation trust must not:
(a) lend money of the trust to a
beneficiary of the trust; or
(b) give any other financial
assistance using the resources of the trust to a beneficiary of the trust.
99
Civil penalty provisions
Subsection 97(1) and section 98 are
civil penalty provisions as defined by section 193, and Part 21
therefore provides for civil and criminal consequences of contravening, or of
being involved in a contravention of, either of them.
Part 12—Duties of trustees and investment managers of superannuation
entities
100
Object of Part
The object of this Part is to impose
special duties on the trustees and investment managers of superannuation
entities.
101
Duty to establish arrangements for dealing with inquiries or complaints
(1) Each trustee of a regulated
superannuation fund other than a self managed superannuation fund, or of an
approved deposit fund, must take all reasonable steps to ensure that there are
at all times in force arrangements under which:
(a) a person referred to in subsection (1A)
has the right to make an inquiry or a complaint of the kind specified in that
subsection in relation to that person; and
(b) an inquiry or complaint so made
will be properly considered and dealt with within 90 days after it was made.
(1A) For the purposes of paragraph (1)(a):
(a) a beneficiary or former
beneficiary of a regulated superannuation fund may make an inquiry into, or
complaint about, the operation or management of the fund in relation to that
person; and
(b) the executor or administrator of
the estate of a former beneficiary of such a fund may make an inquiry into, or
complaint about, the operation or management of such a fund in relation to the
former beneficiary; and
(c) without limiting the generality of
paragraph (a) or (b), any person may make an inquiry into, or complaint
about, a decision of a trustee of such a fund that relates to the payment of a
death benefit if:
(i) the person has an
interest in the death benefit; or
(ii) the person claims to
be, or to be entitled to death benefits through, a person referred to in subparagraph (i).
(2) A person who intentionally or recklessly
contravenes subsection (1) is guilty of an offence punishable on
conviction by a fine not exceeding 100 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3) In this section:
regulated superannuation fund includes an
exempt public sector superannuation scheme that is a regulated superannuation
fund for the purposes of the Superannuation (Resolution of Complaints) Act
1993.
102
Duty to seek information from investment manager
(1) If the trustee of a superannuation
entity, or if a superannuation entity has a group of individual trustees, the
trustees of the entity, enter into an agreement with an investment manager
under which money of the entity will be placed under the control of the
investment manager, the trustee, or the trustees, must:
(a) ensure that the agreement contains
adequate provision to enable the trustee, or the trustees, of the entity to
require the investment manager from time to time:
(i) to provide appropriate
information as to the making of, and return on, the investments; and
(ii) to provide such
information as is necessary to enable the trustee, or the trustees, of the
entity to assess the capability of the investment manager to manage the
investments of the entity; and
(b) whenever it is necessary or
desirable to do so, require the investment manager to provide the information.
(2) If:
(a) the trustee of a superannuation
entity, or if a superannuation entity has a group of individual trustees, the
trustees of the entity, entered into an agreement before the commencement of
this section with an investment manager under which money of the entity would
be placed under the control of the investment manager; and
(b) the agreement does not contain a
provision of a kind mentioned in paragraph (1)(a);
the trustee, or the trustees, of the entity must as soon
as practicable ensure that:
(c) the agreement is amended so as to
contain such a provision; or
(d) if the investment manager refuses
to agree to such an amendment—the agreement is terminated.
(3) The trustee of a superannuation entity,
or if a superannuation entity has a group of individual trustees, the trustees
of the superannuation entity:
(a) may terminate an agreement under paragraph (2)(d)
despite anything in the agreement; and
(b) are not under any liability to the
investment manager because of the termination.
(4) A person who intentionally or recklessly
contravenes subsection (1) or (2) is guilty of an offence punishable on
conviction by a fine not exceeding 100 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
103
Duty to keep minutes and records
(1) If a superannuation entity has a group of
individual trustees, the trustees must keep, and retain for at least 10 years,
minutes of all meetings of the trustees at which matters affecting the entity
were considered.
(2) If there is only one trustee of a
superannuation entity:
(a) if the trustee is a corporate
trustee—the directors of the trustee must keep, and retain for at least 10
years, minutes of all meetings of the directors at which matters affecting the
entity were considered; or
(b) if the trustee is an
individual—the trustee must keep, and retain for at least 10 years, a record of
all decisions made by the trustee in respect of matters affecting the entity.
(2A) The trustee or trustees must also retain
for at least 10 years an election, or a copy of an election, under section 71E.
(3) A person is guilty of an offence if the
person contravenes subsection (1), (2) or (2A). This is an offence of
strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
104
Duty to keep records of changes of trustees
(1) Each trustee of a superannuation entity
must ensure that up‑to‑date records of:
(a) all changes of trustees of the
entity; and
(b) all changes of directors of any
corporate trustee of the entity; and
(c) all consents given under section 118;
are kept and retained for at least 10 years.
(2) A trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
104A
Trustees etc. of self managed superannuation fund—recognition of obligations
and responsibilities
(1) This section applies to a person if:
(a) he or she becomes, after 30 June 2007:
(i) the trustee of a self
managed superannuation fund; or
(ii) a director of a body
corporate that is the trustee of a self managed superannuation fund; or
(b) he or she is a trustee of such a
fund or a director of such a body corporate, and another person becomes, after 30 June 2007, a trustee of the fund or a director of the body corporate.
(2) The person must:
(a) if paragraph (1)(a)
applies—sign a declaration in the approved form that he or she understands his
or her duties as trustee of a self managed superannuation fund (or as director
of a body corporate that is such a trustee), no later than 21 days after
becoming such a trustee or director; and
(b) if paragraph (1)(b)
applies—ensure that the other person signs a declaration in the approved form
that he or she understands his or her duties as trustee of a self managed
superannuation fund (or as director of a body corporate that is such a
trustee), within 21 days after becoming such a trustee or director; and
(c) ensure that the declaration is
retained so long as it is relevant, and in any case for at least 10 years; and
(d) make the declaration available for
inspection by a member of the staff of the Regulator if requested to do so by a
member of that staff.
(3) A person is guilty of an offence if the
person contravenes subsection (2). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
105
Duty to keep reports
(1) Each trustee of a regulated
superannuation fund or of an approved deposit fund must ensure that:
(a) copies of all member or
beneficiary reports are kept, and retained so long as they are relevant and in
any event for at least 10 years; and
(b) those copies are made available
for inspection by a member of the staff of the Regulator if requested to do so
by a member of that staff.
(2) A trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(3) In this
section:
member or beneficiary
report means a report:
(a) given under this Act, the Superannuation
(Excluded Funds) Taxation Act 1987 or the governing rules; and
(b) given in the same form (apart from
differences relating to the names and addresses of the persons to whom the
notices were given):
(i) in the case of a
regulated superannuation fund—to all members of the fund, or to all members
included in a particular class of members; or
(ii) in the case of an approved
deposit fund—to all beneficiaries in the fund, or to all beneficiaries included
in a particular class of beneficiaries.
106
Duty to notify the Regulator of significant adverse events
(1) If a trustee of a superannuation entity
becomes aware of the occurrence of an event having a significant adverse effect
on the financial position of the entity, the trustee must ensure that a trustee
of the entity immediately notifies the Regulator in writing of the event.
(2) An event has a significant adverse effect
on the financial position of an entity if, as a result of the event, a trustee
of the entity will not, or may not, be able, at a time before the next annual
report by the trustee, or the trustees, to beneficiaries entitled to the
report, to make payments to beneficiaries as and when the obligation to make
those payments arises.
(3) Subsection (1) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or of being involved in a
contravention of, that subsection.
106A
Duty to notify Commissioner of Taxation of change in status of entity
Trustee’s duty to notify Commissioner of Taxation
(1) If a trustee of a superannuation entity:
(a) has knowledge that the superannuation
entity has ceased to be a self managed superannuation fund; or
(b) has knowledge that the
superannuation entity has become a self managed superannuation fund since first
becoming a superannuation entity;
the trustee must ensure that a written notice is given to
the Commissioner of Taxation.
Note: A trustee of a fund that was already a self
managed superannuation fund when a trustee, or the trustees, of the fund made
an election under section 19 does not have to ensure that a notice is
given to the Commissioner of Taxation at that time, because the fund became a
self managed superannuation fund before (not since) becoming a superannuation
entity.
Timing of notice
(2) A notice under subsection (1) must
be given as soon as practicable, and not later than 21 days, after the trustee
first has knowledge that the superannuation fund has ceased to be, or has
become, a self managed superannuation fund.
Offence
(3) A person who contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
107
Duty of trustee of employer‑sponsored fund to establish procedure for
appointing member representatives
(1) This section applies if the trustee, or
the trustees, of a standard employer‑sponsored fund (other than a superannuation
fund with fewer than 5 members) are required by law:
(a) if the trustee is a single
corporate trustee—to have member representatives on the board of directors of
the trustee; or
(b) if there is a group of individual
trustees—to have member representatives included in the group; or
(c) in any other case—to have member
representatives on a policy committee of the fund.
(2) Each trustee of the fund must ensure
that:
(a) rules are established (whether by
inclusion in the governing rules or otherwise):
(i) setting out a
procedure for appointing the member representatives; and
(ii) ensuring that member
representatives so appointed can only be removed by the same procedure as that
by which they were appointed, except in the event of:
(A) death;
or
(B) mental
or physical incapacity; or
(C) retirement;
or
(D) termination
of employment; or
(E) the
member representative becoming a disqualified person within the meaning of Part 15;
or
(F) suspension
or removal under Part 17; or
(G) other
prescribed circumstances; and
(b) those rules are published in such
a way as will make members of the fund aware of the procedure for appointment
and removal of member representatives.
(3) A trustee is guilty of an offence if the
trustee contravenes subsection (2).
Penalty: 100 penalty units.
(4) A trustee is guilty of an offence if the
trustee contravenes subsection (2). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
108
Duty of trustee of employer‑sponsored fund to establish procedure for
appointing independent trustee or independent member of board of directors of
corporate trustee
(1) This section applies if a standard
employer‑sponsored fund (other than a self managed superannuation fund) relies
on subsection 89(2) in order to comply with the basic equal representation
rules. (That subsection deals with an additional independent trustee or an
additional independent director of a corporate trustee.)
(2) Each
trustee of the fund must ensure that:
(a) rules are established (whether by
inclusion in the governing rules or otherwise) ensuring that the additional
independent trustee or additional independent director, as the case may be, can
only be removed by the same procedure as that by which the additional
independent trustee or additional independent director was appointed, except in
the event of:
(i) death; or
(ii) mental or physical
incapacity; or
(iii) the additional
independent trustee or additional independent director, as the case may be,
becoming a disqualified person within the meaning of Part 15; or
(iv) suspension or removal
under Part 17; or
(v) other prescribed
circumstances; and
(b) those rules are published in such
a way as will make members of the fund aware of the procedure for removal of
the additional independent trustee or additional independent director, as the
case may be.
(3) A trustee is guilty of an offence if the
trustee contravenes subsection (2).
Penalty: 100 penalty units.
(4) A trustee is guilty of an offence if the
trustee contravenes subsection (2). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
109
Investments of superannuation entity to be made and maintained on arm’s length
basis
(1) A trustee or investment manager of a
superannuation entity must not invest in that capacity unless:
(a) the trustee or investment manager,
as the case may be, and the other party to the relevant transaction are dealing
with each other at arm’s length in respect of the transaction; or
(b) both:
(i) the trustee or
investment manager, as the case may be, and the other party to the relevant
transaction are not dealing with each other at arm’s length in respect of the
transaction; and
(ii) the terms and
conditions of the transaction are no more favourable to the other party than
those which it is reasonable to expect would apply if the trustee or investment
manager, as the case may be, were dealing with the other party at arm’s length
in the same circumstances.
(1A) If:
(a) a trustee or investment manager of
a superannuation entity invests in that capacity; and
(b) at any time during the term of the
investment the trustee or investment manager is required to deal in respect of
the investment with another party that is not at arm’s length with the trustee
or investment manager;
the trustee or investment manager must deal with the other
party in the same manner as if the other party were at arm’s length with the
trustee or investment manager.
(2) Subsections (1) and (1A) are civil
penalty provisions as defined by section 193, and Part 21 therefore
provides for civil and criminal consequences of contravening, or of being
involved in a contravention of, those subsections.
(3) A contravention of subsection (1) or
(1A) does not affect the validity of a transaction.
Part 14—Other provisions applying to superannuation entities
114
Object of Part
The object of this Part is to set out
various rules applying to superannuation entities.
115
Trustee of superannuation entity may maintain reserves
(1) A trustee of a superannuation entity may
maintain reserves of the entity.
(2) Subsection (1) does not apply if the
governing rules of the entity prohibit the maintenance of reserves.
116
Agreement between trustee and investment manager
Despite anything in the governing rules
of a superannuation entity, any provision of an agreement between a trustee of
the entity and an investment manager that purports to exempt the investment
manager from liability for negligence, or to limit that liability, is void.
117
Circumstances in which amounts may be paid out of an employer‑sponsored fund to
an employer‑sponsor
Excluded superannuation funds
(2) This section does not apply to an
excluded superannuation fund during the period:
(a) beginning on 21 October 1992; and
(b) ending immediately before the day
on which subsection (2A) commenced.
Self managed superannuation funds
(2A) This section does not apply to a self
managed superannuation fund if, at all times after the day on which this subsection
commenced when the fund was in existence, the fund was a self managed
superannuation fund.
Basic prohibition
(3) Except as provided by this section, a
trustee of a standard employer‑sponsored fund must not pay an amount, or permit
an amount to be paid, out of the fund to a standard employer‑sponsor.
(3A) Subsection (3) does not apply in
circumstances where:
(a) its application would result in
the acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid
because of paragraph 51(xxxi) of the Constitution.
Exception—management services
(4) A reasonable amount may be paid out of
any standard employer‑sponsored fund to a standard employer‑sponsor for
services rendered in connection with the management or operation of the fund.
Exception—special procedures followed
(5) An amount may be paid out of a standard
employer‑sponsored fund to a standard employer‑sponsor if the following
requirements are fulfilled:
(a) apart from this section, the governing
rules would require or permit the amount to be paid to the employer‑sponsor;
(b) whichever of the following
subparagraphs is applicable has been complied with:
(i) if the fund has a
single corporate trustee:
(A) the
directors of the trustee have, by resolution, declared their intention to pay
the amount out of the fund to the employer‑sponsor; and
(B) when
that resolution was passed, the board of the corporate trustee consisted of
equal numbers of employer representatives and member representatives;
(ii) if the fund has a
group of individual trustees:
(A) the
trustees have, by resolution, declared their intention to pay the amount out of
the fund to the employer‑sponsor; and
(B) when
that resolution was passed, the group of trustees consisted of equal numbers of
employer representatives and member representatives;
(iii) in any other case—the
trustee has declared his or her intention to pay the amount out of the fund to
the employer‑sponsor;
(c) before the resolution referred to
in subparagraph (b)(i) or (ii), was passed or before the declaration
referred to in subparagraph (b)(iii) was made:
(i) an actuary had given a
written certificate to the trustee, or the trustees, of the fund stating that,
if the amount were paid, the fund would remain in a satisfactory financial
position; and
(ii) the trustee, or the
trustees, were satisfied that the payment of the amount and the making of the
changes (if any) to the governing rules were reasonable having regard to the
interests of the employer‑sponsor and of the beneficiaries in the fund;
(d) a trustee of the fund gave notice
in accordance with the governing rules to all members of the fund:
(i) stating the intention
to pay the amount to the employer‑sponsor; and
(ii) stating that an
actuary has given a certificate to the trustee, or the trustees, of the fund as
required by subparagraph (c)(i); and
(iii) setting out
particulars of any changes to the governing rules that were proposed to be made
if the amount were paid to the employer‑sponsor;
(e) at the end of 3 months after the
notice mentioned in paragraph (d) was given to members, the provisions of
whichever of the following subparagraphs is applicable were complied with:
(i) if the fund has a
single corporate trustee—the directors of the corporate trustee passed a
resolution agreeing to pay the amount out of the fund to the employer‑sponsor;
(ii) if the fund has a
group of individual trustees—the trustees passed a resolution agreeing to pay
the amount out of the fund to the employer‑sponsor;
(iii) in any other case—the
trustee decided to make the payment;
(f) any other requirements made by
the regulations.
(5A) The requirement in paragraph (5)(d) is
taken not to have been fulfilled unless the notice is given in a way that
enables each trustee of the fund to be reasonably satisfied that the notice
came to the attention of all the members of the fund other than members who are
lost members within the meaning of the regulations.
APRA may waive requirements
(6) APRA may waive any or all of the requirements
specified in subsection (5) in relation to a matter occurring on or after
the date of commencement of this section.
Civil penalty provision
(7) Subsection (3) is a civil penalty
provision as defined by section 193, and Part 21 therefore provides
for civil and criminal consequences of contravening, or of being involved in a
contravention of, that subsection.
This section does not apply to loans to, or investments
in, a standard employer‑sponsor
(8) A reference in this section to the
payment of an amount out of a standard employer‑sponsored fund to a standard
employer‑sponsor does not include a reference to the payment of an amount by
way of the making of a loan to, or an investment in, the standard employer‑sponsor.
Additional independent trustee and additional
independent director
(9) For the purposes of the application of
this section to a fund, a group of trustees, or the board of a corporate
trustee, is taken to consist of equal numbers of employer representatives and
member representatives if:
(a) the group or board includes an
additional independent trustee or an additional independent director, as the
case may be; and
(b) the additional independent trustee
or additional independent director, as the case may be, is appointed at the
request of the employer representatives, or the member representatives, who are
the members of the group or board; and
(c) provision is made in the governing
rules for the appointment of the independent additional trustee or additional
independent director, as the case may be; and
(d) the governing rules do not allow
the additional independent trustee or additional independent director, as the
case may be, to exercise a casting vote in any proceedings of the group or
board concerned.
Definitions
(10) In this section:
standard employer‑sponsor, in relation to a
standard employer‑sponsored fund, includes:
(a) if a standard employer‑sponsor is
a body corporate—another body corporate that is related to the employer‑sponsor;
or
(b) if a standard employer‑sponsor is
an individual—an associate of the employer‑sponsor.
(11) For the purposes of this section:
(a) a reference to a standard employer‑sponsored
fund includes a reference to a former standard employer‑sponsored fund; and
(b) a reference to a standard employer‑sponsor
includes a reference to a former standard employer‑sponsor.
118
Consents to appointments
A person is not eligible for appointment
as a trustee of a superannuation entity, or as a director of a corporate
trustee of a superannuation entity, unless the person has consented in writing
to the appointment.
Part 15—Standards for trustees, custodians and investment managers
of superannuation entities
Division 1—Object of Part and definition of disqualified person
119
Object of Part
The object of this Part is to set out
rules about the eligibility of trustees, custodians and investment managers of
superannuation entities.
120
Disqualified persons
Individuals
(1) For the purposes of this Part, an
individual is a disqualified person if:
(a) at any time (including a time
before the commencement of this section):
(i) the individual was
convicted of an offence against or arising out of a law of the Commonwealth, a
State, a Territory or a foreign country, being an offence in respect of
dishonest conduct; or
(ii) a civil penalty order
was made in relation to the person; or
(b) the person is an insolvent under
administration; or
(c) either:
(i) to the extent that the
Regulator is the Commissioner of Taxation—the Regulator has disqualified the
individual under section 126A; or
(ii) to the extent that the
Regulator is APRA—the Federal Court of Australia has disqualified the
individual under section 126H.
Bodies corporate
(2) For the purposes of this Part, a body
corporate is a disqualified person if:
(a) the body corporate knows, or has
reasonable grounds to suspect, that a person who is, or is acting as, a
responsible officer of the body corporate is:
(i) for a person who is a
disqualified person only because he or she was disqualified under section 126H—disqualified
from being or acting as a responsible officer of the body corporate; or
(ii) otherwise—a
disqualified person; or
(b) a receiver, or a receiver and
manager, has been appointed in respect of property beneficially owned by the
body; or
(c) an administrator has been
appointed in respect of the body; or
(d) a provisional liquidator has been
appointed in respect of the body; or
(e) the body has begun to be wound up.
Convictions
(3) A reference in this section to a person
who has been convicted of an offence includes a reference to a person in
respect of whom an order has been made under section 19B of the Crimes
Act 1914, or under a corresponding provision of a law of a State, a
Territory or a foreign country, in relation to the offence.
Law on spent convictions does not apply
(4) Division 3 of Part VIIC of the Crimes
Act 1914 does not apply in relation to the disclosure of information about
a conviction of the kind mentioned in paragraph (1)(a), if the disclosure
is for the purposes of this Part.
Division 2—Requirements for custodians and investment managers
122
Investment manager must not appoint or engage custodian without the trustee’s
consent
(1) An investment manager of a superannuation
entity must not appoint or engage a custodian of the entity without the written
consent of the trustee, or the trustees, of the entity.
(2) The investment manager is guilty of an
offence if the investment manager contravenes subsection (1). This is an
offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
123
Persons who may be appointed to be custodians of superannuation entities
(1) A person must not intentionally be the
custodian of a superannuation entity (other than a self managed superannuation
fund) unless:
(a) the person is a body corporate;
and
(b) any of the following subparagraphs
applies:
(i) the value of the net
tangible assets of the body corporate is not less than the amount prescribed by
the regulations;
(ii) a trustee of the
entity is entitled to the benefit, in respect of the due performance of the
body corporate’s duties as custodian of the entity, of an approved guarantee of
an amount that is not less than the amount prescribed by the regulations;
(iii) both the conditions
specified in subsection (1A) are satisfied.
Penalty: 600 penalty units.
Note: A defendant bears an evidential burden in
relation to the matters in paragraphs (1)(a) and (b) (see subsection
13.3(3) of the Criminal Code).
(1A) For the purposes of subparagraph (1)(b)(iii),
the following conditions are specified:
(a) a trustee of the entity is
entitled to the benefit, in respect of the due performance of the body
corporate’s duties as custodian of the entity, of an approved guarantee;
(b) the sum of the amount of the
approved guarantee and the value of the net tangible assets of the body
corporate is not less than the amount prescribed by the regulations.
(2) Subsection (1)
does not prohibit a person from being a custodian of a superannuation entity
if:
(a) the person immediately tells a
trustee of the entity and APRA in writing that paragraph (1)(b) does not,
or has ceased to, apply; and
(b) the person is the custodian of the
entity during:
(i) the 28‑day period
beginning at whichever is the later of the following times:
(A) the time
when paragraph (1)(b) ceased to apply to the custodian;
(B) the
beginning of the entity’s 1994‑95 year of income; or
(ii) such longer period as
APRA allows; and
(c) the trustee, or the trustees, of
the entity have made or propose to make, arrangements for the orderly dismissal
of the person as the custodian; and
(d) the person is taking, or is
willing to take, all reasonable steps to assist the trustee in carrying out
those arrangements.
(3) If paragraph (1)(b) does not, or
ceases to, apply to the custodian of a superannuation entity:
(a) the custodian must immediately
tell a trustee of the entity and APRA in writing; and
(b) the trustee, or the trustees, must
make arrangements for the orderly dismissal of the custodian; and
(c) the trustee, or the trustees, must
make those arrangements before the end of:
(i) the 28‑day period
beginning at whichever is the later of the following times:
(A) the time
when paragraph (1)(b) ceased to apply to the custodian;
(B) the
beginning of the entity’s 1994‑95 year of income; or
(ii) such longer period as
APRA allows.
(4) A person who contravenes subsection (3)
because of paragraph (a) of that subsection is guilty of an offence
punishable on conviction by a fine not exceeding 50 penalty units.
(5) A person who contravenes subsection (3)
because of paragraph (b) or (c) of that subsection is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units.
(6) Subsections (4) and (5) are offences
of strict liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
124
Investment managers must be appointed in writing
(1) A trustee of a superannuation entity must
not make a non‑written appointment of an investment manager of the entity.
(2) A trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
125
Individuals not to be investment managers of superannuation entities
A person must not intentionally be, or
act as, an investment manager of a superannuation entity (other than a self
managed superannuation fund) if the person is not a body corporate.
Penalty: Imprisonment for 2 years.
Division 3—Disqualified persons
Subdivision A—Disqualification by the Commissioner of Taxation
126
Application of this Subdivision
This Subdivision applies to the extent
that the Regulator is the Commissioner of Taxation.
126A
The Regulator may disqualify individuals
(1) The Regulator may disqualify an
individual if satisfied that:
(a) the person has contravened this
Act or the Financial Sector (Collection of Data) Act 2001 on one or more
occasions; and
(b) the nature or seriousness of the
contravention or contraventions, or the number of contraventions, provides
grounds for disqualifying the individual.
Note: For offences relating to disqualified persons,
see Subdivision C.
(2) The Regulator may disqualify an
individual who is, or was, a responsible officer of a trustee, investment
manager or custodian (the body corporate) if satisfied that:
(a) the body corporate has contravened
this Act or the Financial Sector (Collection of Data) Act 2001 on one or
more occasions; and
(b) at the time of one or more of the
contraventions, the individual was a responsible officer of the body corporate;
and
(c) in respect of the contravention or
contraventions that occurred while the individual was a responsible officer of
the body corporate—the nature or seriousness of it or them, or the number of
them, provides grounds for the disqualification of the individual.
(3) The Regulator may disqualify an
individual if satisfied that the individual is otherwise not a fit and proper
person to be a trustee, investment manager or custodian, or a responsible
officer of a body corporate that is a trustee, investment manager or custodian.
(4) A disqualification takes effect on the
day on which it is made.
(5) The Regulator may revoke a
disqualification on application by the disqualified individual or on its own
initiative. A revocation takes effect on the day on which it is made.
(6) The Regulator must give the individual
written notice of a disqualification, revocation of a disqualification or a
refusal to revoke a disqualification.
(7) The Regulator must cause particulars of a
notice given under subsection (6) or 344(6) (result of internal review) to
be published in the Gazette as soon as practicable.
126B
Application for waiver of disqualified status
(1) An individual may apply to the Regulator
for a declaration under section 126D waiving his or her status as a
disqualified person for the purposes of this Part only if:
(a) he or she is a disqualified person
solely because of the operation of subparagraph 120(1)(a)(i); and
(b) the offence leading to him or her
being a disqualified person is not an offence involving serious dishonest
conduct as described in subsection (2).
(2) For the purposes of paragraph (1)(b),
an offence involves serious dishonest conduct if the penalty actually imposed
for the offence is:
(a) a term of imprisonment of at least
2 years or such longer period (if any) as is specified in the regulations; or
(b) a fine of at least 120 penalty units
or such larger fine, if any, as is specified in the regulations.
(3) An application must:
(a) be in writing; and
(b) be made within 14 days after the
commencement of this subsection or the person’s conviction, whichever is the
later; and
(c) identify the offence to which the
application relates; and
(d) to the extent that the court
documents relating to the offence exist—be accompanied by a copy, certified to
be a true copy by the Clerk or Registrar of the court, of those documents; and
(e) give consent to the Regulator
making inquiries in relation to the applicant of any law enforcement agency,
regulatory agency or court that the Regulator believes on reasonable grounds
has in its possession or control information directly relevant to the Regulator’s
consideration of the application; and
(f) be signed by the applicant.
(4) The Regulator may accept an application
meeting conditions referred to in subsection (3) other than paragraph (3)(b)
after the end of the period referred to in that paragraph only if the Regulator
is satisfied that there are exceptional circumstances that prevented the
application from being made within that period.
(5) The court documents are:
(a) the information or indictment
against the applicant; and
(b) the transcript of the proceedings;
and
(c) witness statements and affidavits;
and
(d) the court’s judgment and orders;
and
(e) the court’s reasons for judgment.
(6) If an individual is not reasonably able
to obtain some or all of the court documents referred to in subsection (5),
he or she:
(a) may make an application that is
not accompanied by those documents; and
(b) must give the Regulator those
documents as soon as practicable after making the application.
(7) The Regulator must notify the applicant
of any police force, agency or court of which the Regulator intends to make
inquiries.
(8) Such notification should if possible be
given to the applicant as soon as practicable after a decision has been made to
approach that police force, agency or court.
126C
Application must be decided within a period of time
(1) Subject to this section, the Regulator
must decide an application made under section 126B within 60 days after
receiving it.
(2) If the Regulator thinks that it will take
longer than 60 days to decide the application, the Regulator may extend the
period for deciding it by no more than 60 days.
(3) The extension must be notified in writing
to the applicant within 60 days after the Regulator receives the application.
(4) If the Regulator makes an extension, the
Regulator must decide the application within the extended period.
(5) If the Regulator has not decided the
application by the end of the day by which the Regulator is required to decide
it, the Regulator is taken to have decided, at the end of that day, to refuse
the application under subsection 126D(3).
126D
Notifying of the outcome of an application
(1A) If, having regard to any of the following:
(a) the offence to which the
application relates;
(b) the time that has passed since the
applicant committed the offence;
(c) the applicant’s age when the
applicant committed the offence;
(d) the orders made by the court in
relation to the offence;
(e) any other relevant matter;
the Regulator is satisfied that the applicant is highly
unlikely to:
(f) contravene this Act; and
(g) do anything that would result in a
self managed superannuation fund not complying with this Act;
the Regulator must, by notice in writing given to the
applicant, make a declaration waiving the applicant’s status as a disqualified
person for the purposes of this Part.
(2) Despite any declaration waiving an
applicant’s status as a disqualified person for the purposes of this Part, the
applicant will still be a disqualified person if:
(a) the applicant had been convicted
of an offence involving dishonest conduct that the applicant did not include in
the application; or
(b) a civil penalty order has been
made against the applicant; or
(c) the applicant is insolvent under
administration.
(3) If the Regulator decides not to make a
declaration waiving the applicant’s status as a disqualified person for the
purposes of this Part, the Regulator must:
(a) by notice in writing, record that
it has so decided; and
(b) give the applicant a statement, to
which a copy of the notice referred to in paragraph (a) is attached,
telling the applicant:
(i) that the Regulator has
so decided and of the reasons for that decision; and
(ii) that the applicant
must resign immediately and confirm that resignation, in writing, to the
Regulator; and
(iii) that if the applicant
fails so to resign and is the responsible officer of a body corporate that is a
trustee, investment manager or custodian of a superannuation entity the
Regulator will tell the body corporate of the applicant’s status as a disqualified
person.
(4) If the Regulator becomes aware that the
responsible officer of a body corporate that is a trustee, investment manager
or custodian of a superannuation entity has failed to resign in accordance with
the requirements of a statement under paragraph (3)(b) the Regulator must
tell the body corporate that the applicant is a disqualified person.
126E
The effect of seeking a waiver of disqualified person status
(1) If:
(a) a person is a disqualified person;
and
(b) the person is eligible to make
application for a declaration waiving his or her status as a disqualified
person; and
(c) the person makes application for
such a declaration under subsection 126B(3) within the application period
specified in that subsection;
the person is treated, for the purposes of this Act,
(other than the purpose of the application for the declaration) as not being,
and as never having been, a disqualified person until that application is
decided.
(2) On
deciding an application for a declaration waiving the disqualified person
status of a person to whom paragraphs 1(a), (b) and (c) apply:
(a) if the Regulator decides to make
the declaration, the Act applies as if the person had never been disqualified;
and
(b) if the Regulator decides not to
make the declaration, the person again becomes a disqualified person from the
date of the decision.
(3) If:
(a) a person is a disqualified person;
and
(b) the person is eligible to make
application for a declaration waiving his or her status as a disqualified
person; and
(c) the person makes application for
such a declaration under subsection 126B(4);
then:
(d) pending the decision of the
application the person continues to be a disqualified person for the purposes
of this Act; but
(e) if the Regulator decides to make a
declaration waiving the person’s status as a disqualified person, the person is
treated, for the purposes of this Act, as if the person had never been a
disqualified person.
126F
The Regulator’s powers to seek further material
(1) If, to
decide an application under subsection 126B(1), the Regulator needs:
(a) further
information; or
(b) the
applicant’s consent to the Regulator making inquiries about the applicant from
another person;
the Regulator may ask an applicant to provide information
or consent.
(2) The Regulator may, by notice in writing,
require a person who has made an application under subsection 126B(1) to pay to
the Regulator an amount equal to the amount of any fees charged to the
Regulator by any law enforcement agency, regulatory agency or court for
answering any inquiry by the Regulator about the applicant if the fees:
(a) are of a kind prescribed for the
purposes of this subsection; and
(b) exceed an amount prescribed for
the purposes of this subsection, or exceed, in total, such an amount.
(3) The Regulator may, on the application of
a person who has made an application under subsection 126B(1), waive in whole
or in part, the requirement to pay an amount under subsection (2) if the
Regulator is satisfied that there are special circumstances making it unfair to
require the applicant to pay that amount or that part of that amount.
(4) If the applicant fails to comply with the
request, the Regulator must treat the application as having been withdrawn.
(5) Nothing in this section or in section 126B
prevents the Regulator from deciding an application before some or all of the
requirements in subsection 126B(3) have been complied with.
Subdivision B—Disqualification by the Federal Court of Australia
126G
Application of this Subdivision
This Subdivision applies to the extent
that the Regulator is APRA.
126H
Court power of disqualification
(1) On application by the Regulator, the
Federal Court of Australia may, by order, disqualify an individual from being
or acting as a person referred to in subsection (2), for a period that the
Court considers appropriate, if the Court is satisfied:
(a) as mentioned in
subsection (3), (4) or (5); and
(b) that the disqualification is
justified.
Note: For offences relating to disqualified persons,
see Subdivision C.
(2) For the purposes of subsection (1),
the Court may disqualify an individual from being or acting as:
(a) a trustee of:
(i) a particular
superannuation entity; or
(ii) a class of
superannuation entities; or
(iii) any superannuation entity;
or
(b) a responsible officer of:
(i) a particular body
corporate that is a trustee, an investment manager or a custodian of a
superannuation entity; or
(ii) a class of bodies
corporate that are trustees, investment managers or custodians of superannuation
entities; or
(iii) any body corporate
that is a trustee, investment manager or custodian of a superannuation entity.
(3) The Court may disqualify an individual,
in accordance with subsection (1), if satisfied:
(a) that the individual has contravened
this Act or the Financial Sector (Collection of Data) Act 2001 on one or
more occasions; and
(b) that the nature or seriousness of
the contravention or contraventions, or the number of contraventions, provides
grounds for disqualifying the individual.
(4) The Court may disqualify an individual,
in accordance with subsection (1), who is, or was, a responsible officer
of a trustee, investment manager or custodian (the body corporate)
if satisfied that:
(a) the body corporate has contravened
this Act or the Financial Sector (Collection of Data) Act 2001 on one or
more occasions; and
(b) at the time of one or more of the
contraventions, the individual was a responsible officer of the body corporate;
and
(c) in respect of the contravention or
contraventions that occurred while the individual was a responsible officer of
the body corporate—the nature or seriousness of it or them, or the number of
them, provides grounds for the disqualification of the individual.
(5) The Court may disqualify an individual,
in accordance with subsection (1), if satisfied that the individual is
otherwise not a fit and proper person to be a person referred to in
subsection (2).
(6) In deciding whether it is satisfied as
mentioned in subsection (3), (4) or (5), the Court may take into account:
(a) any matters specified in the
regulations for the purposes of this paragraph; and
(b) any other matters the Court
considers relevant.
(7) In deciding whether the disqualification
is justified as mentioned in paragraph (1)(b), the Court may have regard
to:
(a) the individual’s conduct in
relation to the management, business or property of any corporation; and
(b) any other matters the Court
considers relevant.
(8) As soon as practicable after the Court
disqualifies an individual under this section, the Regulator must cause
particulars of the disqualification to which the notice relates:
(a) to be given:
(i) if the individual is,
or is acting as, a trustee of a superannuation entity—to the entity concerned;
or
(ii) if the individual is,
or is acting as, a responsible officer of a body corporate that is a trustee,
an investment manager or a custodian of a superannuation entity—to the body
corporate concerned; and
(b) to be published in the Gazette.
126J
Court power to revoke or vary a disqualification etc.
(1) A disqualified person, or the Regulator,
may apply to the Federal Court of Australia for:
(a) if an individual is a disqualified
person only because he or she was disqualified under section 126H—a
variation or a revocation of the order made under that section; or
(b) otherwise—an order that the person
is not a disqualified person.
(2) If the Court revokes an order under
paragraph (1)(a) or makes an order under paragraph (1)(b), then,
despite section 120, the person is not a disqualified person.
(3) At least 21 days before commencing the
proceedings, written notice of the application must be lodged:
(a) if the disqualified person makes
the application—by the person with the Regulator; or
(b) if the Regulator makes the application—by
the Regulator with the disqualified person.
(4) An order under paragraph (1)(b) may
be expressed to be subject to exceptions and conditions determined by the
Court.
Subdivision C—Other matters relating to disqualification
126K
Disqualified persons not to be trustees, investment managers or custodians of
superannuation entities
(1) A person commits an offence if:
(a) the person is a disqualified
person; and
(b) the person knows he or she is a
disqualified person; and
(c) the person is or acts as a
trustee, investment manager or custodian of a superannuation entity; and
(d) for a person who is an individual
and who is a disqualified person only because he or she was disqualified under
section 126H—the person is disqualified from being or acting as a trustee
of that superannuation entity.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is a disqualified
person; and
(b) the person knows he or she is a
disqualified person; and
(c) the person is or acts as a
trustee, investment manager or custodian of a superannuation entity; and
(d) for a person who is an individual
and who is a disqualified person only because he or she was disqualified under
section 126H—the person is disqualified from being or acting as a trustee
of that superannuation entity.
Penalty: 60 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) A person commits an offence if:
(a) the person is a disqualified
person; and
(b) the person knows he or she is a
disqualified person; and
(c) the person is or acts as a
responsible officer of a body corporate that is a trustee, investment manager
or custodian of a superannuation entity; and
(d) for a person who is an individual
and who is a disqualified person only because he or she was disqualified under
section 126H—the person is disqualified from being or acting as that
responsible officer.
Penalty: Imprisonment for 2 years.
(5) A person commits an offence if:
(a) the person is a disqualified
person; and
(b) the person knows he or she is a
disqualified person; and
(c) the person is or acts as a
responsible officer of a body corporate that is a trustee, investment manager
or custodian of a superannuation entity; and
(d) for a person who is an individual
and who is a disqualified person only because he or she was disqualified under
section 126H—the person is disqualified from being or acting as that
responsible officer.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(7) A person commits an offence if:
(a) the person is a trustee of a
superannuation entity; and
(b) the person is or becomes a
disqualified person; and
(c) the person does not tell the
Regulator in writing immediately.
Penalty: 50 penalty units.
(8) Subsection (7) is an offence of
strict liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
126L
Privilege against exposure to penalty—disqualification under section 126A,
126H or 130D
Proceedings
(1) In the case of any proceeding under, or
arising out of, this Act, a person is not entitled to refuse or fail to comply
with a requirement:
(a) to answer a question or give
information; or
(b) to produce books; or
(c) to do any other act;
on the ground that the answer or information, production
of the books, or doing that other act, as the case may be, might tend to make
the person liable to a penalty by way of a disqualification under
section 126A, 126H or 130D.
(2) Subsection (1) applies whether or
not the person is a defendant in, or a party to, the proceeding or any other
proceeding.
Statutory requirements
(3) A person is not entitled to refuse or
fail to comply with a requirement under this Act:
(a) to answer a question or give
information; or
(b) to produce books; or
(c) to do any other act;
on the ground that the answer or information, production
of the books, or doing that other act, as the case may be, might tend to make
the person liable to a penalty by way of a disqualification under
section 126A, 126H or 130D.
Admissibility
(4) Subsections 130B(2), 287(3), 290(2) and
336F(2) do not apply to a proceeding for the imposition of a penalty by way of
a disqualification under section 126A, 126H or 130D.
Other provisions
(5) Subsections (1) and (3) of this
section have effect despite anything in:
(a) section 199; or
(b) any other provision of this Act;
or
(c) the Administrative Appeals
Tribunal Act 1975.
Definition
(6) In this section:
penalty includes forfeiture.
Division 4—Non‑compliance not to invalidate appointment or transaction
127
Non‑compliance not to invalidate appointment or transaction
A failure to comply with a provision of
this Part does not affect the validity of an appointment or transaction.
Part 16—Actuaries and auditors of superannuation entities
Division 1—Object of Part
128
Object of Part
The object of this Part is to set out
special rules about actuaries and auditors of superannuation entities.
Division 2—Obligations of actuaries and auditors
129
Obligations of actuaries and auditors—compliance
When section applies
(1) This section applies to a person in
relation to a superannuation entity if:
(a) the person forms the opinion that
it is likely that a contravention of any of the following may have occurred,
may be occurring, or may occur, in relation to the entity:
(i) this Act or the
regulations;
(ii) if the entity is a
registrable superannuation entity—the Financial Sector (Collection of Data)
Act 2001;
(iii) if the entity is a
registrable superannuation entity—a provision of the Corporations Act 2001
listed in a subparagraph of paragraph (b) of the definition of regulatory
provision in section 38A of this Act or specified in regulations
made for the purposes of subparagraph (b)(xvi) of that definition, as it
applies in relation to superannuation interests; and
(b) the person formed the opinion in
the course of, or in connection with, the performance by the person of
actuarial or audit functions under this Act or the regulations or the Financial
Sector (Collection of Data) Act 2001 in relation to the entity.
Section does not apply if the person believes that his
or her opinion is not relevant to the performance of actuarial or audit
functions
(2) This section does not apply to the person
if the person has an honest belief that the opinion is not relevant to the
performance of those functions.
Trustee and Regulator to be told about the matter
(3) Subject to subsection (3A), the
person must, immediately after forming the opinion mentioned in paragraph (1)(a):
(a) tell a trustee of the entity about
the matter in writing; and
(b) if the superannuation entity is
not a self managed superannuation fund and the contravention about which the
person has formed the opinion mentioned in paragraph (1)(a) is of such a
nature that it may affect the interests of members or beneficiaries of the
entity—tell the Regulator about the matter in writing; and
(c) if the superannuation entity is a
self managed superannuation fund and the matter is specified in the approved
form—tell the Regulator about the matter in the approved form.
Note: For specification by class, see subsection 46(3)
of the Acts Interpretation Act 1901.
(3AA) To avoid doubt, for the purposes of
paragraph (3)(c), the approved form may specify matters by reference to a
class or classes of matters.
The person may not have to tell a trustee or the
Regulator about the matter
(3A) The person does not have to:
(a) tell a trustee of the entity about
the matter if:
(i) the person has been
told by another person to whom this section applies that the other person has
already told a trustee of the entity about the matter; and
(ii) the first‑mentioned
person has no reason to disbelieve that other person; or
(b) tell the Regulator about the
matter if:
(i) the person has been
told by another person to whom this section applies that the other person has
already told the Regulator about the matter; and
(ii) the first‑mentioned
person has no reason to disbelieve that other person.
Penalties for misinformation
(3B) A person (the first person)
commits an offence if:
(a) this section applies to the first
person; and
(b) the first person is aware of a
matter that must, under this section, be told to a trustee; and
(c) the first person tells another
person to whom this section applies that the first person has told a trustee
about the matter; and
(d) the first person has not done what
the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3C) A person (the first person)
commits an offence if:
(a) this section applies to the first
person; and
(b) the first person is aware of a
matter that must, under this section, be told to the Regulator; and
(c) the first person tells another
person to whom this section applies that the first person has told the
Regulator about the matter; and
(d) the first person has not done what
the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
No civil liability for telling about a matter
(4) A person to whom this section applies is
not liable in a civil action or civil proceeding in relation to telling the
Regulator, or a trustee of the entity, about a matter as required by this
section.
Offences
(5) A person is guilty of an offence if the
person contravenes subsection (3).
Penalty: 50 penalty units.
(6) A person is guilty of an offence if the
person contravenes subsection (3). This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
130
Obligations of actuaries and auditors—solvency
When section applies
(1) This section applies to a person in
relation to a superannuation entity if:
(a) the person forms the opinion that
the financial position of the entity may be, or may be about to become,
unsatisfactory; and
(b) the person formed the opinion in
the course of, or in connection with, the performance by the person of
actuarial or audit functions under this Act or the regulations or the Financial
Sector (Collection of Data) Act 2001 in relation to the entity.
Regulator and trustee to be told about the financial
position
(2) Subject to subsection (2A), the
person must, immediately after forming the opinion mentioned in paragraph (1)(a),
tell the Regulator, and a trustee of the entity, about the matter in writing.
The person may not have to tell the Regulator or a
trustee about the matter
(2A) The person does not have to:
(a) tell the Regulator about the
matter if:
(i) the person has been
told by another person to whom this section applies that the other person has
already told the Regulator about the matter; and
(ii) the first‑mentioned
person has no reason to disbelieve that other person; or
(b) tell a trustee of the entity about
the matter if:
(i) the person has been
told by another person to whom this section applies that the other person has
already told a trustee of the entity about the matter; and
(ii) the first‑mentioned
person has no reason to disbelieve that other person.
Penalty for misinformation
(2B) A person (the first person)
commits an offence if:
(a) this section applies to the first
person; and
(b) the first person is aware of a
matter that must, under this section, be told to the Regulator and a trustee;
and
(c) the first person tells another
person to whom this section applies that the first person has told either or
both the Regulator and a trustee about the matter; and
(d) the first person has not done what
the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
No civil liability for telling about a matter
(3) A person to whom this section applies is
not liable in a civil action or civil proceeding in relation to telling the
Regulator, or a trustee of the entity, about a matter as required by this
section.
Offences
(4) A person is guilty of an offence if the
person contravenes subsection (2).
Penalty: 50 penalty units.
(5) A person is guilty of an offence if the
person contravenes subsection (2). This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
When financial position is unsatisfactory
(7) For the purposes of this section, the
financial position of an entity is taken to be unsatisfactory if, and only if,
under the regulations, the financial position of the entity is treated as
unsatisfactory.
130A
Auditor or actuary may give information to the Regulator
A person who is or was an auditor or
actuary of a superannuation entity may give to the Regulator information about
the entity or a trustee of the entity obtained in the course of, or in
connection with, the performance by the person of audit or actuarial functions
under:
(a) this Act; or
(b) the regulations; or
(c) the Financial Sector
(Collection of Data) Act 2001; or
(d) the Corporations Act 2001;
if the person considers that giving the information will
assist the Regulator in performing its functions under this Act or the
regulations or the Financial Sector (Collection of Data) Act 2001.
130B
Self incrimination
(1) An individual is not excused from
complying with a requirement under section 129 or 130 to give information
on the ground that doing so would tend to incriminate the individual or make
the individual liable to a penalty.
(2) The information given by the individual
in compliance with such a requirement is not admissible in evidence against the
individual in a criminal proceeding or a proceeding for the imposition of a
penalty, other than a proceeding in respect of the falsity of the information,
if:
(a) before giving the information, the
individual claims that giving the information might tend to incriminate the
individual or make the individual liable to a penalty; and
(b) giving the information might in
fact tend to incriminate the individual or make the individual liable to a
penalty.
130BA
Auditor must notify the Regulator of attempts to unduly influence etc. the
auditor etc.
(1) If an auditor of a superannuation entity
is aware of circumstances that amount to:
(a) an attempt, in relation to an
audit of the superannuation entity, by any person to unduly influence, coerce,
manipulate or mislead the auditor or a member of the audit team conducting the
audit; or
(b) an attempt by any person to
otherwise interfere with the proper conduct of the audit;
the auditor must notify the Regulator in writing of those
circumstances as soon as practicable, and in any case within 28 days, after the
auditor becomes aware of those circumstances.
(2) An auditor commits an offence if the
auditor contravenes subsection (1).
Penalty: Imprisonment for 12 months or 50 penalty units, or
both.
130BB
Giving false or misleading information to auditor
Offence—person knows the information is false or
misleading etc.
(1) A person commits an offence if:
(a) the person is:
(i) the trustee of a
superannuation entity; or
(ii) a responsible officer
of the trustee of a superannuation entity; or
(iii) an employee of the
trustee of a superannuation entity; and
(b) the person gives information, or
allows information to be given, to an auditor of the superannuation entity; and
(c) the information relates to the
affairs of the superannuation entity; and
(d) the person knows that the
information:
(i) is false or misleading
in a material particular; or
(ii) is missing something
that makes the information misleading in a material respect.
Penalty: Imprisonment for 5 years or 200 penalty units, or
both.
Offence—person fails to ensure the information is not
false or misleading etc.
(2) A person commits an offence if:
(a) the person is:
(i) the trustee of a
superannuation entity; or
(ii) a responsible officer
of the trustee of a superannuation entity; or
(iii) an employee of the
trustee of a superannuation entity; and
(b) the person gives information, or
allows information to be given, to an auditor of the superannuation entity; and
(c) the information relates to the
affairs of the superannuation entity; and
(d) the information:
(i) is false or misleading
in a material particular; or
(ii) is missing something
that makes the information misleading in a material respect; and
(e) the person did not take reasonable
steps to ensure that the information:
(i) was not false or
misleading in a material particular; or
(ii) was not missing
something that makes the information misleading in a material respect.
Penalty: Imprisonment for 2 years or 100 penalty units, or
both.
Determining whether information is false or misleading
(3) If information is given to the auditor in
response to a question asked by the auditor, the information and the question
must be considered together in determining whether the information is false or
misleading.
130C
Actuaries and auditors—failure to implement actuarial recommendations
When section applies
(1) This section applies to a person in
relation to a defined benefit fund that is a registrable superannuation entity
if:
(a) the person forms the opinion that
there has been a failure to implement an actuarial recommendation relating to
contributions to the fund by the employer‑sponsor that a trustee of the fund,
or an employer‑sponsor of the fund, was required to implement and that was
contained in:
(i) a report of an actuary
obtained under the regulations; or
(ii) a report of an actuary
obtained in accordance with a requirement under the regulations; or
(iii) a document in a class
prescribed by regulations for the purposes of this subparagraph; and
(b) the person formed the opinion in
the course of, or in connection with, the performance by the person of
actuarial or audit functions in relation to the entity under this Act or the
regulations or the Financial Sector (Collection of Data) Act 2001.
Trustee and Regulator to be told about the matter
(2) Subject to subsection (3), the
person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):
(a) tell a trustee of the fund about
the matter in writing; and
(b) if the contravention about which
the person has formed the opinion mentioned in paragraph (1)(a) is of such
a nature that it may affect the interests of members or beneficiaries of the
fund—tell the Regulator about the matter in writing.
The person may not have to tell a trustee or the
Regulator about the matter
(3) The person does not have to:
(a) tell a trustee of the fund about
the matter if:
(i) the person has been
told by another person to whom this section applies that the other person has
already told a trustee of the fund about the matter; and
(ii) the first‑mentioned
person has no reason to disbelieve that other person; or
(b) tell the Regulator about the
matter if:
(i) the person has been
told by another person to whom this section applies that the other person has
already told the Regulator about the matter; and
(ii) the first‑mentioned
person has no reason to disbelieve that other person.
Penalties for misinformation
(4) A person (the first person)
commits an offence if:
(a) this section applies to the first
person; and
(b) the first person is aware of a
matter that must, under this section, be told to a trustee; and
(c) the first person tells another
person to whom this section applies that the first person has told a trustee
about the matter; and
(d) the first person has not done what
the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4A) A person (the first person)
commits an offence if:
(a) this section applies to the first
person; and
(b) the first person is aware of a
matter that must, under this section, be told to the Regulator; and
(c) the first person tells another
person to whom this section applies that the first person has told the
Regulator about the matter; and
(d) the first person has not done what
the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
No civil liability for telling about a matter
(5) A person to whom this section applies is
not liable in a civil action or civil proceeding in relation to telling the
Regulator, or a trustee of the fund, about a matter as required by this
section.
Offences
(6) A person is guilty of an offence if the
person contravenes subsection (2).
Penalty: 50 penalty units.
(7) A person is guilty of an offence if the
person contravenes subsection (2). This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1: For strict liability, see section 6.1
of the Criminal Code.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Division 3—Disqualifying and removing actuaries and auditors
130D
Court power of disqualification
(1) This section applies to the extent that
the Regulator is APRA.
(2) On application by the Regulator, the
Federal Court of Australia may, by order, disqualify a person from being or
acting as a person referred to in subsection (3), for a period that the
Court considers appropriate, if the Court is satisfied:
(a) as mentioned in
subsection (4); and
(b) that the disqualification is
justified.
Note: For offences relating to persons disqualified
under this section, see section 131C.
(3) For the purposes of subsection (2),
the Court may disqualify a person from being or acting as an approved auditor
or actuary, for the purposes of this Act, of:
(a) a particular superannuation
entity; or
(b) a class of superannuation
entities; or
(c) any superannuation entity.
(4) The Court may disqualify a person, in
accordance with subsection (2), if the Court is satisfied that:
(a) the person has failed, whether
within or outside Australia, to carry out or perform adequately and properly:
(i) the duties of an
auditor or actuary under this Act or the regulations; or
(ii) any duties required by
a law of the Commonwealth, a State or a Territory to be carried out or
performed by an auditor or actuary; or
(iii) any functions that an
auditor or actuary is entitled to perform in relation to this Act or the
regulations or the Financial Sector (Collection of Data) Act 2001; or
(b) the person is otherwise not a fit
and proper person to be a person referred to in subsection (3).
(5) In
deciding whether it is satisfied as mentioned in subsection (4), the Court
may take into account:
(a) any matters specified in the
regulations for the purposes of this paragraph; and
(b) any other matters the Court
considers relevant.
(6) In deciding whether the disqualification
is justified as mentioned in paragraph (2)(b), the Court may have regard
to:
(a) the person’s conduct in relation
to his or her duties under this Act and the regulations; and
(b) any other matters the Court considers
relevant.
(7) As soon as practicable after the Court
disqualifies a person under this section, the Regulator must cause particulars
of the disqualification to which the notice relates to be published in the Gazette.
130E
Court power to revoke or vary a disqualification etc.
(1) A person who is disqualified under
section 130D, or the Regulator (to the extent that the Regulator is APRA),
may apply to the Federal Court of Australia for a variation or a revocation of
an order made under section 130D.
(2) At least 21 days before commencing the
proceedings, written notice of the application must be lodged:
(a) if the person who is disqualified
makes the application—by the person with the Regulator; or
(b) if the Regulator makes the
application—by the Regulator with the person who is disqualified.
131
Auditors and actuaries—disqualification orders
Application of section
(1A) This section applies to the extent that the
Regulator is the Commissioner of Taxation.
Disqualification order
(1) The Regulator may make a written order (a
disqualification order) disqualifying a person from being an
approved auditor or actuary for the purposes of this Act if:
(a) the person has failed, whether
within or outside Australia, to carry out or perform adequately and properly:
(i) the duties of an
auditor or an actuary (as the case requires) under this Act or the regulations;
or
(ii) any duties required by
a law of the Commonwealth, a State or a Territory to be carried out or
performed by an auditor or an actuary (as the case requires); or
(iii) any functions that an
auditor or actuary (as the case requires) is entitled to perform in relation to
this Act or the regulations or the Financial Sector (Collection of Data) Act
2001; or
(b) the person is otherwise not a fit
and proper person to be an approved auditor or actuary for the purposes of this
Act.
Note: For offences relating to persons disqualified
under this section, see section 131C.
Date of effect
(2) A disqualification order takes effect on
the day specified in the order. The specified day must be within the 28‑day
period beginning on the day on which the order was made.
Notification
(3) The Regulator must give a copy of the
order to the person.
Gazettal
(4) The Regulator must cause particulars of
the disqualification order to be published in the Gazette as soon as
practicable after it is made.
(4A) If APRA’s decision to make the
disqualification order is varied or revoked by APRA as a result of a
reconsideration under subsection 344(4), APRA must cause particulars of the
variation or revocation to be published in the Gazette as soon as
practicable after the decision is made.
(4B) If:
(a) APRA’s decision to make the
disqualification order is confirmed or varied by APRA as a result of a
reconsideration under subsection 344(4); and
(b) the decision as so confirmed or
varied is varied or set aside by the Administrative Appeals Tribunal;
APRA must cause particulars of the Tribunal’s decision to
be published in the Gazette as soon as practicable after it is given.
Revocation
(5) The Regulator may revoke a
disqualification order. The Regulator’s power to revoke may be exercised:
(a) on the Regulator’s own initiative;
or
(b) on written application made by the
disqualified person.
Revocation—decision on application
(6) If an application is made for the
revocation of a disqualification order, the Regulator must decide to:
(a) revoke the order; or
(b) refuse to revoke the order.
Revocation—grounds
(7) The Regulator must not revoke a
disqualification order unless the Regulator is satisfied that the person
concerned:
(a) is likely to carry out and perform
adequately and properly the duties of an auditor or actuary (as the case
requires) under this Act or the regulations; and
(b) is otherwise a fit and proper
person to be an approved auditor or actuary (as the case requires) for the
purposes of this Act.
Revocation—date of effect
(8) A revocation of a disqualification order
takes effect on the day the revocation is made.
Reasons for revocation
(9) If the Regulator decides to refuse an
application for revocation of a disqualification order, the Regulator must
cause to be given to the applicant a written notice setting out the decision
and giving the reasons for the decision.
Gazettal
(10) If the Regulator revokes a
disqualification order under subsection (5), the Regulator must cause
particulars of the revocation to be published in the Gazette as soon as
practicable after it occurs.
131AA
APRA may direct removal of auditor or actuary
(1) APRA may, if satisfied there is a ground
under subsection (2), give a written direction to the trustee or trustees
of a superannuation entity to end the appointment of a person as:
(a) the approved auditor of the
superannuation entity; or
(b) the actuary of the superannuation
entity.
(2) The grounds for giving a direction to end
a person’s appointment are:
(a) the person is disqualified under
section 130D or 131 from being, or acting as, an approved auditor or
actuary of the superannuation entity; or
(b) the person is not a fit and proper
person to hold the appointment; or
(c) the person has failed to perform
adequately and properly the duties or functions of the appointment under this
Act, the regulations or the Financial Sector (Collection of Data) Act 2001.
(3) Before directing a trustee or trustees to
end a person’s appointment, APRA must:
(a) give written notice to:
(i) the trustee or
trustees; and
(ii) the person; and
(b) give the trustee or trustees and
the person a reasonable opportunity to make submissions on the matter.
(4) The notice must include a statement that
any submissions in response to the notice may be discussed by APRA with other
persons as mentioned in paragraph (5)(b).
(5) If a submission is made in response to
the notice, APRA:
(a) must have regard to the
submission; and
(b) may discuss any matter contained
in the submission with any persons APRA considers appropriate for the purpose
of assessing the truth of the matter.
(6) A direction to end a person’s appointment
takes effect on the day specified in the direction, which must be at least 7
days after the direction is made.
(7) If APRA directs a trustee or trustees to
end a person’s appointment, APRA must give the trustee or trustees and the
person a copy of the direction.
(8) A direction to end a person’s appointment
is not a legislative instrument.
(9) A trustee commits an offence if:
(a) the trustee does or fails to do an
act; and
(b) by doing or failing to do the act,
the trustee fails to comply with a direction under this section.
Penalty: 60 penalty units.
(10) Strict liability applies to
subsection (9).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 4—Offences and failure to carry out duties etc.
131A
The Regulator may refer matters to a professional association
(1) If the Regulator is of the opinion that
an approved auditor or an actuary:
(a) has failed, whether within or
outside Australia, to carry out or perform adequately and properly:
(i) the duties of an
auditor or an actuary under this Act or the regulations; or
(ii) any duties required by
a law of the Commonwealth, a State or a Territory to be carried out or
performed by an auditor or an actuary; or
(iii) any functions that an
auditor or actuary is entitled to perform in relation to this Act or the
regulations or the Financial Sector (Collection of Data) Act 2001; or
(b) is otherwise not a fit and proper
person to be an approved auditor or an actuary for the purposes of this Act;
the Regulator may refer the details of the matter to the
persons specified in subsection (2).
Note: Persons to whom the Regulator refers the
details of the matter are subject to secrecy obligations under section 56
of the Australian Prudential Regulation Authority Act 1998 (if APRA is
the Regulator) or Division 355 in Schedule 1 to the Taxation
Administration Act 1953 (if the Commissioner of Taxation is the Regulator).
In particular, see paragraph (c) of the definition of officer
in subsection (1), and subsections (2), (9) and (10), of
section 56 of the Australian Prudential Regulation Authority Act 1998
and sections 355‑15 and 355‑25 in Schedule 1 to the Taxation
Administration Act 1953.
(2) The persons specified in relation to an
approved auditor or an actuary for the purposes of subsection (1) are
those members of the auditor’s or actuary’s professional association whom the
Regulator believes will be involved:
(a) in deciding whether the
professional association should take any disciplinary or other action against
the auditor or actuary in respect of the matter referred; or
(b) in taking that action.
(3) In relation to an approved auditor or
actuary, the power of the Regulator under subsection (1) may be exercised
whether or not an order disqualifying the auditor or actuary has been made
under section 130D or 131.
(4) If, under this section, the Regulator
refers details of a matter involving an approved auditor or an actuary, the
Regulator must, as soon as practicable but, in any event, not later than 7 days
after the referral, by notice in writing given to the auditor or actuary,
inform the auditor or actuary:
(a) of the fact that a matter has been
referred under subsection (1); and
(b) of the nature of the matter so
referred.
131B
Offence of holding oneself out as an actuary or auditor
(1) A person is guilty of an offence if:
(a) the person holds themself out as
an actuary; and
(b) the person is not an actuary.
Penalty: 50 penalty units.
(2) A person is guilty of an offence if:
(a) the person holds themself out as
an approved auditor; and
(b) the person is not an approved
auditor.
Penalty: 50 penalty units.
(3) Subsections (1) and (2) are offences
of strict liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
131C
Disqualified persons not to be auditor or actuary of superannuation entities
(1) A person commits an offence if:
(a) the person is, or acts as, an
auditor or actuary of a superannuation entity for the purposes of this Act; and
(b) either:
(i) for a person who is
disqualified under section 130D—the person is disqualified from being or
acting as an auditor or actuary (as the case requires) of that superannuation
entity; or
(ii) otherwise—the person
is disqualified under section 131 from being or acting as an auditor or
actuary (as the case requires); and
(c) the person knows that he or she is
so disqualified.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is, or acts as, an auditor
or actuary of a superannuation entity for the purposes of this Act; and
(b) either:
(i) for a person who is
disqualified under section 130D—the person is disqualified from being or
acting as an auditor or actuary (as the case requires) of that superannuation
entity; or
(ii) otherwise—the person
is disqualified under section 131 from being or acting as an auditor or
actuary (as the case requires); and
(c) the person knows that he or she is
so disqualified.
Penalty: 60 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Part 17—Suspension or removal of trustee of superannuation entity
132
Object of Part
The object of this Part is to provide
for the suspension or removal of a trustee of a superannuation entity, and for
the appointment of an acting trustee.
133
Suspension or removal of trustee of superannuation entity
Suspension or removal
(1) The Regulator may suspend or remove a
trustee of a superannuation entity if:
(a) either:
(i) for a trustee who is
an individual and who is a disqualified person only because he or she was
disqualified under section 126H—the individual is disqualified from being
or acting as a trustee of that superannuation entity; and
(ii) otherwise—the trustee
is a disqualified person within the meaning of Part 15; or
(b) it appears to the Regulator that
conduct that has been, is being, or is proposed to be, engaged in by the
trustee or any other trustees of the entity may result in the financial
position of the entity or of any other superannuation entity becoming
unsatisfactory; or
(c) if the trustee is a trustee of a
registrable superannuation entity—the trustee is not an RSE licensee or a
member of a group of individuals that is an RSE licensee; or
(e) if the trustee is an RSE
licensee—the RSE licensee breaches any of the conditions of its RSE licence.
Period of suspension
(2) A suspension of a trustee is to be for
such period as the Regulator determines.
Extension of period of suspension
(3) A suspension of a trustee may be extended
for such further period or such further periods as the Regulator determines.
Reasons
(4) If the Regulator makes a decision:
(a) suspending or removing a trustee;
or
(b) extending the suspension of a
trustee;
the Regulator must cause to be given to the trustee a
written notice:
(c) setting out that decision; and
(d) giving the reasons for that
decision.
134
APRA to appoint acting trustee in cases of suspension or removal
Suspension
(1) If the Regulator suspends all of the
trustees of a superannuation entity, the Regulator must appoint a
constitutional corporation or an individual to act as the trustee during the
period of the suspension. The appointee is called the acting trustee.
Removal
(2) If the Regulator removes all of the
trustees of a superannuation entity, the Regulator must appoint a
constitutional corporation or an individual to act as the trustee until the
vacancy in the position of trustee is filled. The appointee is called the acting
trustee.
Pension funds
(3) The Regulator must not appoint an
individual as the acting trustee of a superannuation entity unless the
governing rules of the entity provide that the sole or primary purpose of the
entity is the provision of old‑age pensions.
Groups
(4) If:
(a) there is a group of individual
trustees of a superannuation entity; and
(b) the Regulator suspends or removes
all of the trustees; and
(c) the Regulator is satisfied that
any one or more of the persons who were suspended or removed is a fit and
proper person to be appointed as the acting trustee;
this Act does not prevent the Regulator from so appointing
that person.
135
Terms and conditions of appointment of acting trustee
(1) The Regulator may determine the terms and
conditions of the appointment of the acting trustee, including fees. The
determination has effect despite anything in:
(a) any other provision of this Act;
and
(b) the regulations; and
(c) any other law; and
(d) the entity’s governing rules.
(2) Without limiting subsection (1), the
Regulator may make a determination under that subsection to the effect that the
acting trustee’s fees are to be paid out of the corpus of the entity concerned.
136
Termination of appointment of acting trustee
The Regulator may terminate the
appointment of the acting trustee at any time.
137
Resignation of acting trustee
The acting trustee may resign by writing
delivered to the Regulator. The resignation does not take effect until the end
of the 7th day after the day on which it was delivered to the Regulator. (The
delay gives the Regulator time to appoint a fresh acting trustee.)
138
Property vesting orders
(1) If a person is appointed as acting
trustee, the Regulator must make a written order vesting the property of the
entity concerned in the acting trustee.
(2) If the
appointment of the acting trustee comes to an end, the Regulator must make a
written order vesting the property of the entity concerned in:
(a) if there is to be a fresh acting
trustee—the fresh acting trustee; or
(b) if the acting trustee acted during
a period of suspension of the actual trustee and the suspension has come to an
end—the actual trustee; or
(c) if the acting trustee acted
because of a vacancy in the position of actual trustee and the acting trustee’s
appointment has come to an end because the vacancy in the position of actual
trustee has been filled by a new actual trustee—the actual trustee.
(3) If an order is made by the Regulator
under this section vesting property of a superannuation entity in a person:
(a) if the property was vested in law
in the trustee—subject to subsections (4) and (5), the property
immediately vests in law in the person named in the order by force of this Act;
and
(b) if the property was vested in
equity in the trustee—the property immediately vests in equity in the person
named in the order by force of this Act.
(4) If:
(a) the property is of a kind whose
transfer or transmission may be registered under a law of the Commonwealth, of
a State or of a Territory; and
(b) that law enables the registration
of such an order;
the property does not vest in that person at law until the
requirements of the law referred to in paragraph (a) have been complied
with.
(5) If:
(a) the property is of a kind whose
transfer or transmission may be registered under a law of the Commonwealth, of
a State or of a Territory; and
(b) that law enables the person named
in the order to be registered as the owner of that property;
the property does not vest in that person at law until the
requirements of the law referred to in paragraph (a) have been complied
with.
139
Powers of acting trustee
Subject to section 138, while a
person is acting as trustee under this Part:
(a) the person has and may exercise
all the rights, title and powers, and must perform all the functions and
duties, of the trustee; and
(b) the entity’s governing rules, this
Act, the regulations and any other law apply in relation to the person as if
the person were the trustee.
140
Acting trustee to notify appointment to beneficiaries
(1) If a person is appointed under this Part
to act as trustee of a superannuation entity, the person must, as soon as
practicable, give each beneficiary a notice about the appointment.
(2) The notice is to be in the approved form.
(3) A person who, without reasonable excuse,
contravenes this section is guilty of an offence punishable on conviction by a
fine not exceeding 50 penalty units.
(3A) Subsection (3) is an offence of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(4) A contravention of subsection (1)
does not affect the validity of the appointment.
141
The Regulator may give directions to acting trustee
(1) If a person is appointed under this Part
to act as trustee of a superannuation entity, the Regulator may give a written
notice to the person directing the person to do, or not to do, one or more
specified acts or things in relation to the superannuation entity.
(2) A person must not intentionally or
recklessly contravene a direction under subsection (1).
Penalty: 100 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3) This section does not affect the validity
of a transaction entered into by a person in contravention of the notice.
141A
Property vested in acting trustee—former trustee’s obligations relating to
books, identification of property and transfer of property
(1) This section applies if:
(a) after the commencement of this
section, the Regulator makes an order under subsection 138(1) or (2) vesting
the property of a superannuation entity in an acting trustee; or
(b) the Regulator made such an order
before the commencement of this section and that order is still in force when
this section commences.
(2) In this section, the person in whom the
property was vested immediately before the order was made is referred to as the
former trustee.
(3) The former trustee is guilty of an
offence:
(a) if paragraph (1)(a)
applies—if the former trustee does not, within 14 days of the order being made,
give the acting trustee all books relating to the entity’s affairs that are in
the former trustee’s possession, custody or control; or
(b) if paragraph (1)(b)
applies—if the former trustee does not, within 14 days of the commencement of
this section, give the acting trustee all books relating to the entity’s
affairs that are in the former trustee’s possession, custody or control.
Penalty: 50 penalty units.
(4) The acting trustee may, by notice in
writing to the former trustee, require the former trustee, so far as the former
trustee can do so:
(a) to identify property of the
entity; and
(b) to explain how the former trustee
has kept account of that property.
(5) The acting trustee may, by notice in
writing to the former trustee, require the former trustee to take specified
action that is necessary to bring about a transfer of specified property of the
entity to the acting trustee.
(6) The former trustee is guilty of an
offence if:
(a) the acting trustee gives the
former trustee a notice under subsection (4) or (5); and
(b) the former trustee does not,
within 28 days of the notice being given, comply with the requirement in the
notice.
Penalty: 50 penalty units.
(7) Subsections (3) and (6) are offences
of strict liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
142
The Regulator may formulate a scheme for the winding‑up or dissolution, or
both, of a superannuation entity
Schemes
(1) If a person is appointed under this Part
to act as trustee of a superannuation entity, the Regulator may, by legislative
instrument, formulate a scheme for the winding‑up or dissolution, or both, of
the entity.
Vacancies
(2) Without limiting subsection (1), a
scheme may make provision for and in relation to prohibiting the appointment of
a person to fill a vacancy in the position of trustee.
Contravention of scheme
(3) A person must not intentionally or
recklessly contravene the provisions of a scheme formulated under this section.
Penalty: 100 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Notification
(4) The Regulator must give a copy of an
instrument under subsection (1) to the acting trustee.
Beneficiaries to be told
(5) Without limiting section 141, the
Regulator may give a direction under that section to the acting trustee
requiring the acting trustee to tell beneficiaries in the entity about an
instrument under subsection (1).
Copies to be supplied
(6) A person whose interests are affected by
an instrument under subsection (1) may request the Regulator to give the
person a copy of the instrument. The Regulator must comply with the request.
Advertising
(7) The Regulator must advertise the making
of each instrument under subsection (1) in such newspaper or newspapers as
the Regulator considers reasonable having regard to the likely places of
residence of the majority of beneficiaries in the entity. The advertisement is
to be in the prescribed form.
(9) Section 42 of the Legislative
Instruments Act 2003 does not apply to an instrument relating to an
appointment under this Part of a person as a trustee of a superannuation entity
if the appointment arose because of the removal, under paragraph 133(1)(c), of
another trustee that:
(a) was an approved trustee at any
time during the licensing transition period; and
(b) was not an RSE licensee at the end
of that period.
Part 18—Amalgamation of funds
143
Object of Part
The object of this Part is to empower
APRA to approve, in certain circumstances, the transfer of all benefits of
members and beneficiaries in a regulated superannuation fund or approved
deposit fund to another regulated superannuation fund or approved deposit fund.
144
Benefits may be transferred to a new fund with APRA’s approval etc.
(1) All benefits of members and beneficiaries
in a regulated superannuation fund or approved deposit fund (the transferor
fund) may be transferred to another regulated superannuation fund or
approved deposit fund (the transferee fund) if:
(a) APRA approves the transfer under
this Part; and
(b) the transfer takes place
under an arrangement between all the trustees of the transferor fund and:
(i) if the trustee of the
transferee fund is a body corporate—the RSE licensee of the transferee fund; or
(ii) if there is a group of
individual trustees of the transferee fund that is an RSE licensee—all of the
individual trustees of the transferee fund.
(2) This section does not affect the transfer
of any benefits in a superannuation fund or approved deposit fund under any
other provision of this Act or under the regulations.
145
Application for approval of transfer
(1) An application to APRA for approval of
the transfer of all benefits of members and beneficiaries in the transferor
fund to the transferee fund may be made by all the trustees of the transferor
fund and:
(a) if the trustee of the transferee
fund is a body corporate—the RSE licensee of the transferee fund; or
(b) if there is a group of individual
trustees of the transferee fund that is an RSE licensee—all of the individual
trustees of the transferee fund.
(2) The application must be in the approved
form.
146
Approval of transfer
APRA may approve the transfer of all
benefits of members and beneficiaries in the transferor fund to the transferee
fund in accordance with an application under section 145 if, and only if,
APRA is satisfied that:
(a) either:
(i) reasonable attempts to
bring about the transfer under another provision of this Act or under the
regulations have failed; or
(ii) the transfer would
take place under a scheme formulated under section 142; and
(b) the transfer is reasonable in all
the circumstances, having regard to:
(i) the benefit
entitlements of members and beneficiaries under the governing rules of the
transferor fund; and
(ii) the likely effect on
the amount of those entitlements if those members and beneficiaries were to
remain members and beneficiaries of the transferor fund; and
(iii) the benefit
entitlements of members and beneficiaries under the governing rules of the
transferee fund; and
(iv) the value of the assets
transferred from the transferor fund to the transferee fund under the
arrangement referred to in paragraph 144(1)(b); and
(c) the transfer would not adversely
affect the interests of the members and beneficiaries of the transferee fund;
and
(d) the transferee fund has an RSE
licensee.
147 Cessation of rights against transferor fund
If the benefits of members and
beneficiaries in a transferor fund are transferred to a transferee fund under
this Part:
(a) the members and beneficiaries
cease to have rights against the transferor fund; and
(b) if:
(i) immediately before the
transfer occurred, another person had a contingent right against the transferor
fund to a death or disability benefit; and
(ii) the contingent right
was derived from a member’s or beneficiary’s capacity as a member or
beneficiary of the transferor fund;
the other person ceases to have
the contingent right against the transferor fund.
To avoid doubt, a reference in paragraph (a) to a
right against the transferor fund includes a reference to a contingent right to
a death or disability benefit.
Part 19—Public offer entities: provisions relating to superannuation
interests
Division 1—Preliminary
151
Contravention of Part does not affect validity of issue of superannuation interest
etc.
A contravention of this Part does not
affect the validity of the issue of a superannuation interest or of any other
act.
Division 2—Issuing, offering etc. superannuation interests in public
offer entities
152
Limitation on issuing, offering etc. superannuation interests in public offer
entities
(1) This section applies to the following
conduct:
(a) issuing superannuation interests
in a public offer entity;
(b) offering to issue superannuation
interests in a public offer entity;
(c) inviting the making of
applications for the issue of superannuation interests in a public offer
entity.
(2) The trustee of a public offer entity must
not engage in conduct to which this section applies.
Penalty: Imprisonment for 5 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Subsection (2) does not apply if:
(a) the trustee is a constitutional
corporation and is an RSE licensee; and
(b) the entity is constituted by a
deed as a trust.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(3) A person, other than the trustee of a
public offer entity, must not engage in conduct to which this section applies.
Penalty: Imprisonment for 5 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4) This section does not prevent the trustee
of a public offer entity from engaging or authorising persons to act on behalf
of the trustee.
154
Commission and brokerage
(1) The trustee of a public offer entity must
comply with the requirements of the regulations in relation to the payment of
commission or brokerage in respect of:
(a) an application for the issue of a
superannuation interest in the entity; or
(b) an application to become a
standard employer‑sponsor of the entity.
(2) The trustee is guilty of an offence if
the trustee contravenes subsection (1).
Penalty: 100 penalty units.
(2A) The trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(3) Requirements specified in regulations for
the purposes of subsection (1) must relate to all or any of the following:
(a) the classes of persons to whom
payments of commission or brokerage may be made;
(b) the situations in which payments
of commission or brokerage may be made;
(c) the disclosure of information
about payments of commission or brokerage;
(d) the keeping of records about
payments of commission or brokerage.
155
Fair dealing on issue or redemption of a superannuation interest
(1) This section applies if:
(a) the trustee of a public offer
entity is considering:
(i) issuing a
superannuation interest in the entity to a person; or
(ii) redeeming a
superannuation interest in the entity held by a person; and
(b) either:
(i) the trustee believes
on reasonable grounds that the price at which, under the governing rules of the
entity, the interest would be issued or redeemed would not, in the
circumstances, be fair and reasonable as between the person and the beneficiaries
of the entity; or
(ii) the trustee cannot,
for whatever reason, work out the price at which, under the governing rules of
the entity, the interest should be issued or redeemed.
(2) The trustee must not issue or redeem the
interest while subsection (1) applies except at a price that is fair and
reasonable as between the person and the beneficiaries of the entity.
(3) If, while this section applies, the
trustee issues or redeems the interest at such a price, the trustee is taken to
have acted in accordance with the governing rules of the entity.
(4) A contravention of subsection (2) is
not an offence, but it may give rise to civil liability under section 156.
156
Civil liability where subsection 155(2) contravened
(1) If:
(a) the trustee of a public offer
entity contravenes subsection 155(2); and
(b) a person suffers loss or damage
because of the contravention;
the person may recover the amount of the loss or damage by
action against the trustee.
(2) The action must be begun within 6 years
after the day on which the cause of action arose.
Part 21—Civil and criminal consequences of contravening civil
penalty provisions
Division 1—Preliminary
192
Object of Part
The object of this Part is to specify
the consequences of contravening a civil penalty provision.
193
Civil penalty provisions
Each of the following provisions of this
Act is a civil penalty provision:
(a) subsection 62(1);
(b) subsection 65(1);
(c) subsection 67(1);
(d) subsection 84(1);
(e) subsection 85(1);
(f) subsection 95(1);
(g) subsection 97(1);
(h) section 98;
(i) subsection 106(1);
(j) subsection 109(1);
(ja) subsection 109(1A);
(k) subsection 117(3).
194
Person involved in contravening a provision taken to have contravened the
provision
For the purposes of this Part, a person
who is involved in a contravention of a particular provision of this Act is
taken to have contravened that provision.
195
When a court is taken to find a person guilty of an offence
For the
purposes of this Part, an Australian court is taken to find a person guilty of
an offence if, and only if:
(a) the court convicts the person of
the offence; or
(b) the person is charged before the
court with the offence and is found by the court to have committed the offence,
but the court does not proceed to convict the person of the offence.
Division 2—Civil penalty orders
196
Court may make civil penalty orders
(1) This section applies if the Court is
satisfied that a person has contravened a civil penalty provision, whether or
not the contravention also constitutes an offence because of section 202.
Note: Section 220 provides that a certificate
by a court that the court has declared a person to have contravened a civil
penalty provision is conclusive evidence of the contravention.
(2) The Court is to declare that the person
has, by a specified act or omission, contravened that provision in relation to
a specified superannuation entity, but need not so declare if such a
declaration is already in force under Division 4.
(3) The Court may also make against the
person an order that the person pay to the Commonwealth a monetary penalty of
an amount specified in the order that does not exceed 2,000 penalty units.
(4) The Court is not to make an order under subsection (3)
unless it is satisfied that the contravention is a serious one.
(5) The Court is not to make an order under subsection (3)
if it is satisfied that an Australian court has ordered the person to pay
damages in the nature of punitive damages because of the act or omission
constituting the contravention.
197
Who may apply for civil penalty order
(1) An application for a civil penalty order
may only be made by the Regulator or a person to whom the Regulator has
delegated the power to make applications for civil penalty orders.
(2) A delegation for the purposes of subsection (1)
may relate to applications in relation to specified contraventions, or all
contraventions, of civil penalty provisions.
(3) This section does not affect the
operation of the Director of Public Prosecutions Act 1983.
198
Time limit for application
An application for a civil penalty order
may be made within 6 years after the contravention.
199
Application for civil penalty order is a civil proceeding
(1) In hearing and determining an application
for a civil penalty order, the Court is to apply the rules of evidence and
procedure that it applies in hearing and determining civil matters.
(2) Subsection (1) has effect subject to
the rules of the Court.
200
Enforcement of order to pay monetary penalty
If the Court makes under subsection
196(3) an order that a person pay a monetary penalty:
(a) the penalty is payable to the
Regulator on the Commonwealth’s behalf; and
(b) the Regulator or the Commonwealth
may enforce the order as if it were a judgment of the Court.
201
The Regulator may require a person to give assistance in connection with
application for civil penalty order
(1) This section applies if it appears to the
Regulator that a person may have contravened a civil penalty provision.
(2) If the Regulator, on reasonable grounds,
suspects or believes that a person can give information relevant to an
application for a civil penalty order in relation to the contravention (whether
or not such an application has been made), the Regulator may, by writing given
to the person, require the person to give all reasonable assistance in
connection with such an application.
(3) Subsection (2) does not apply in
relation to:
(a) the person referred to in subsection (1);
or
(b) a person who is or has been that
person’s lawyer.
(4) If a person fails to give assistance as
required under subsection (2):
(a) the person is guilty of an offence
punishable on conviction by a fine not exceeding 5 penalty units; and
(b) the Court may, on the application
of the Regulator, order the person to comply with the requirement as specified
in the order.
(4A) Paragraph (4)(a) is an offence of
strict liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(5) Paragraph (4)(b) does not affect any
penalty for an offence referred to in paragraph (4)(a).
Division 3—Criminal proceedings
202
When contravention of civil penalty provisions is an offence
(1) If a person contravenes a civil penalty
provision, either:
(a) dishonestly, and intending to
gain, whether directly or indirectly, an advantage for that, or any other
person; or
(b) intending to deceive or defraud
someone;
the person is guilty of an offence punishable on
conviction by imprisonment for not longer than 5 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) A person who contravenes a civil penalty
provision is not guilty of an offence except as provided by subsection (1).
(3) The Federal Court of Australia does not
have jurisdiction with respect to criminal proceedings for an offence
constituted by a contravention of a civil penalty provision.
203
Application for civil penalty order precludes later criminal proceedings
Criminal proceedings for an offence
constituted by a contravention of a civil penalty provision cannot be begun if
a person has already applied for a civil penalty order in relation to the same
contravention, even if the application has been finally determined or otherwise
disposed of.
Division 4—Effect of criminal proceedings on application for civil
penalty order
204
When Division applies
This Division applies if criminal
proceedings are begun against a person for an offence constituted by a
contravention of a civil penalty provision.
205
Effect during criminal proceedings
(1) An application may be made for a civil
penalty order against the person in relation to the same contravention.
(2) However, such an application is stayed,
because of this subsection, until:
(a) the criminal proceedings; and
(b) all appeals and applications for
review (including appeals and applications for review under this Division)
arising out of the criminal proceedings;
have been finally determined or otherwise disposed of.
206
Final outcome precluding applications for civil penalty order
When the criminal proceedings, appeals
and applications for review are finally determined or otherwise disposed of:
(a) an application for a civil penalty
order in relation to the same contravention cannot be made (except under this
Division); and
(b) such an application that was
stayed because of subsection 205(2) is, because of this section, dismissed;
if the result of the criminal proceedings, appeals and applications
for review is:
(c) a court finding the person guilty
of the offence; or
Note: Section 195 defines when a court is taken
to find a person guilty of an offence.
(d) the person being acquitted of the
offence, unless there is in force a declaration that the person committed the
contravention; or
Note: This kind of declaration is made under section 209,
210 or 211.
(e) a declaration by a court that the
evidence in a committal proceeding for the offence could not satisfy the Court,
on an application for a civil penalty order, that the person committed the
contravention; or
Note: This kind of declaration is made under section 208.
(f) a declaration by a court that the
person committed the contravention; or
Note: This kind of declaration is made under section 209
or 211.
(g) an order by a court prohibiting an
application for a civil penalty order in relation to the contravention from
being made or from proceeding; or
Note: This kind of declaration is made under section 212.
(h) the Court, on an appeal or review,
affirming, varying or substituting a declaration that the person committed the
contravention.
Note: Section 213 applies in this case.
207
Final outcome not precluding application for civil penalty order
If the result of the criminal proceedings,
appeals and applications for review being finally determined or otherwise
disposed of is:
(a) a declaration by a court (other
than the Court) that the person committed the contravention; or
Note: This
kind of declaration is made under section 209, 210 or 211.
(b) none of the results referred to in
section 206;
then:
(c) if an application for a civil
penalty order in relation to the contravention was stayed because of subsection
205(2)—the application may proceed; or
(d) otherwise—such an application may
be made and may proceed;
as if the criminal proceedings had never begun.
208
After unsuccessful committal proceeding, court may preclude application for
civil penalty order
(1) If:
(a) a proceeding in a court for the
commitment of the person for trial for the offence is finally determined or
otherwise disposed of without the person being committed for trial for the
offence; and
(b) that
court is satisfied that the evidence in the proceeding could not satisfy the
Court, on an application for a civil penalty order in relation to the
contravention, that the person committed the contravention;
the court may declare that it is so satisfied.
(2) A declaration under subsection (1)
is subject to appeal or review in the same way as any other order or decision
made in the proceeding.
209
Application for civil penalty order based on alternative verdict at jury trial
(1) This section applies if the person is
tried on indictment for the offence and the jury is satisfied beyond reasonable
doubt that the person committed the contravention, but is not satisfied beyond
reasonable doubt that the person did so as mentioned in subsection 202(1).
(2) The jury may find the person not guilty
of the offence, but guilty of the contravention.
(3) If the jury does so, the court is to
declare that the person has, by a specified act or omission, contravened the
civil penalty provision in relation to a specified superannuation entity.
(4) If the court is the Court, it may then
proceed to make an order under subsection 196(3) on the application of the
prosecutor or someone else who has power under section 197 to apply for a
civil penalty order in relation to the contravention.
(5) Subsection (4) has effect despite
section 198.
(6) A declaration under subsection (3)
is subject to appeal or review as if it were a conviction by the court for an
offence constituted by the contravention.
210
Application for civil penalty order based on alternative finding by court of
summary jurisdiction
(1) This section applies if, on the hearing
of a proceeding for the summary conviction of the person for the offence, the
court is satisfied beyond reasonable doubt that the person committed the
contravention but is not satisfied beyond reasonable doubt that the person did
so as mentioned in subsection 202(1).
(2) The court may find the person not guilty
of the offence, but guilty of the contravention.
(3) If the court does so, it is to declare
that the person has, by a specified act or omission, contravened the civil
penalty provision in relation to a specified superannuation entity.
(4) A declaration under subsection (3)
is subject to appeal or review as if it were a conviction by the court for an
offence constituted by the contravention.
211
Application for civil penalty order based on alternative finding by appeal
court
(1) This section applies if:
(a) a court finds the person guilty of
the offence; and
(b) on appeal or review, a court makes
an order determining the criminal proceedings for the offence in a way that
does not involve convicting the person of that or any other offence; and
(c) the court is satisfied beyond
reasonable doubt that the person committed the contravention.
(2) The court may declare that the person
has, by a specified act or omission, contravened the civil penalty provision in
relation to a specified superannuation entity.
(3) If the court is the Court, it may then
proceed to make an order under subsection 196(3) on the application of the
prosecutor or someone else who has power under section 197 to apply for a
civil penalty order in relation to the contravention.
(4) Subsection (3) has effect despite
section 198.
(5) A declaration under subsection (2)
is subject to appeal or review in the same way as any other order or decision
that was made on the appeal or review or might have been made.
212
After setting aside declaration, court may preclude application for civil
penalty order
If a court sets aside a declaration made
under section 209, 210 or 211, the court may, by order, prohibit an
application for a civil penalty order in relation to the contravention from
being made or from proceeding.
213 On
unsuccessful appeal against declaration, Court may make civil penalty orders
(1) This section applies if, on an appeal
from, or review of, a declaration made under section 209, 210 or 211 by a
court other than the Court, the Court determines the appeal or review by:
(a) affirming or varying the
declaration; or
(b) substituting another declaration
for the first‑mentioned declaration.
(2) The Court may then proceed to make orders
under subsection 196(3) on the application of the prosecutor or someone else
who has power under section 197 to apply for a civil penalty order in
relation to the contravention.
(3) Subsection (2) has effect despite
section 198.
214 Appeals
under this Division
For the purposes of an appeal or review
under subsection 208(2), 209(6), 210(4) or 211(5), a law about appeals or
reviews has effect with such modifications as the circumstances require.
Division 5—Compensation for loss suffered by superannuation entity
215 On
application for civil penalty order, Court may order compensation
(1) If, on an application for a civil penalty
order against a person in relation to a contravention, the Court is satisfied
that:
(a) the person committed the
contravention; and
(b) the superannuation entity in
relation to which the contravention was committed has suffered loss or damage
as a result of the act or omission constituting the contravention;
the Court may (whether or not it makes an order under
subsection 196(3)) order the person to pay to a trustee of the entity or, if
the person is a trustee of the entity, to pay to the entity compensation of
such amount as the order specifies.
(2) A trustee of a superannuation entity may
intervene in an application for a civil penalty order against a person in
relation to a contravention, unless the application was made under Division 4.
(3) A trustee of a superannuation entity that
so intervenes is entitled to be heard:
(a) only if the Court is satisfied
that the person committed the contravention in relation to that entity; and
(b) only on the question whether the
Court should order the person to pay compensation to the trustee because of the
contravention.
216
Criminal court may order compensation
(1) If:
(a) a court finds a person guilty of
an offence constituted by a contravention of a civil penalty provision in
relation to a superannuation entity; and
(b) the court is satisfied that the
superannuation entity has suffered loss or damage as a result of the act or
omission constituting the contravention;
the court may (whether or not it imposes a penalty) order
the person to pay to a trustee of the entity or, if the person is a trustee of
the entity, to pay to the entity compensation of such amount as the order
specifies.
Note: Section 195 defines when a court is taken
to find a person guilty of an offence.
(2) If:
(a) a court declares under Division 4
that a person has, by an act or omission, contravened a civil penalty provision
in relation to a superannuation entity; and
(b) the court is satisfied that the
superannuation entity has suffered loss or damage as a result of that act or
omission;
the court may (whether or not it makes an order under
subsection 196(3)) order the person to pay to a trustee of the entity or, if
the person is a trustee of the entity, to pay to the entity compensation of
such amount as the order specifies.
217
Enforcement of order under section 215 or 216
An order to pay compensation that a
court makes under section 215 or 216 may be enforced as if it were a
judgment of the court.
218
Recovery of profits, and compensation for loss, resulting from contravention
(1) If a civil penalty provision in relation
to a superannuation entity is contravened by a person other than a trustee of
the entity, a trustee of the entity may, by proceedings in a court of competent
jurisdiction, recover from the person, as a debt due to the trustee:
(a) if that or another person has made
a profit because of the act or omission constituting the contravention—an
amount equal to the amount of that profit; and
(b) if the entity has suffered loss or
damage as a result of that act or omission—an amount equal to the amount of
that loss or damage;
whether or not:
(c) the first‑mentioned person has been
convicted of an offence in relation to the contravention; or
(d) a civil penalty order has been
made against the first‑mentioned person in relation to the contravention.
(2) Proceedings under this section may only
be begun within 6 years after the contravention.
219
Effect of sections 215, 216 and 218
Sections 215, 216 and 218:
(a) have effect in addition to, and
not in derogation of, any rule of law about the duty or liability of a person
because of the person’s office or employment in relation to a superannuation
entity; and
(b) do not prevent proceedings from
being instituted in respect of a breach of such a duty or in respect of such a
liability.
220
Certificates evidencing contravention
For the purposes of this Part, a
certificate that:
(a) purports to be signed by the
Registrar or other proper officer of an Australian court; and
(b) states:
(i) that the court has
declared that a specified person has, by a specified act or omission,
contravened a specified civil penalty provision in relation to a specified
superannuation entity; or
(ii) that a specified
person was convicted by that court of an offence constituted by a specified
contravention of a civil penalty provision in relation to a specified
superannuation entity; or
(iii) that a specified
person charged before that court with such an offence was found in that court
to have committed the offence but that the court did not proceed to convict the
person of the offence;
is, unless it is proved that the declaration, conviction
or finding was set aside, quashed or reversed, conclusive evidence:
(c) that the declaration was made,
that the person was convicted of the offence, or that the person was so found,
as the case may be; and
(d) that the person committed the
contravention.
Division 6—Miscellaneous
221
Relief from liability for contravention of civil penalty provision
(1) In this section:
eligible proceedings means proceedings for a
contravention of a civil penalty provision (including proceedings under section 218)
but does not include proceedings for an offence (except so far as the
proceedings relate to the question whether the court should make an order under
section 216).
(2) If, in eligible proceedings against a
person, it appears to the court that the person has, or may have, contravened a
civil penalty provision but that:
(a) the person has acted honestly; and
(b) having regard to all the
circumstances of the case, the person ought fairly to be excused for the
contravention;
the court may relieve the person either wholly or partly
from a liability to which the person would otherwise be subject, or that might
otherwise be imposed on the person, because of the contravention.
(3) If a person thinks that eligible
proceedings will or may be begun against him or her, he or she may apply to the
Court for relief.
(4) On the application under subsection (3),
the Court may grant relief under subsection (2) as if the eligible
proceedings had been begun in the Court.
(5) For the purposes of subsection (2)
as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to
the court is a reference to the judge; and
(b) the relief that may be granted
includes withdrawing the case in whole or in part from the jury and directing
judgment to be entered for the defendant on such terms as to costs as the judge
thinks appropriate.
(6) Section 323 provides for additional
relief from liability.
222
Part does not limit power to award punitive damages
Nothing in this Part limits a court’s
power to order someone to pay damages in the nature of punitive damages because
of an act or omission constituting a contravention of a civil penalty
provision.
Part 23—Financial assistance to certain funds
Division 1—Preliminary
227
Object of Part
The object of this Part is to make
provision for the grant of financial assistance for certain superannuation
entities that have suffered loss as a result of fraudulent conduct or theft.
228
Interpretation
In this Part:
eligible loss means a loss suffered by a fund
as a result of fraudulent conduct, or theft, but does not include an amount
that the fund did not receive because of the failure of a person to pay
contributions to the fund.
levy means the levy imposed by the
Superannuation (Financial Assistance Funding) Levy Act 1993.
229
Application for assistance
(1) If:
(a) a fund suffers an eligible loss
after the commencement of this Part; and
(aa) at the time it suffers the loss,
the fund is:
(i) a regulated
superannuation fund (other than a self‑managed superannuation fund); or
(ii) an approved deposit
fund; and
(b) the loss has caused substantial
diminution of the fund leading to difficulties in the payment of benefits;
a trustee of the fund may apply to the Minister for a
grant of financial assistance for the fund.
(2) The application must be in writing and be
accompanied by such information as the Minister determines.
(3) To avoid doubt, an application may be
made under this section by a trustee of a self‑managed superannuation fund as
long as the fund met the requirements in subsection (1) at the time the
fund suffered the loss to which the application relates.
230
Minister may request additional information
(1) The Minister may request a trustee of the
fund to give such additional information as the Minister considers necessary to
enable the application to be determined.
(2) The Minister may, by signed instrument,
delegate the Minister’s power under subsection (1) to an SES employee, or
acting SES employee, in the Department.
(3) In exercising a power delegated under
subsection (2), a delegate must comply with any directions of the
Minister.
230A
APRA to advise Minister in relation to application for assistance
(1) The Minister must make a written request
to APRA for advice in relation to the application. The request may specify:
(a) particular matters that APRA is to
provide advice about; and
(b) a time by which the advice must be
provided.
(2) APRA must comply with the request and
may, in its advice, also address any other issues that APRA considers relevant
to the determination of the application.
(3) The Minister’s written request to APRA
made under subsection (1) for advice in relation to the application for
assistance must be laid before each House of the Parliament as soon as
practicable after the Minister has made a written determination under
subsection 231(1).
(4) The Minister may, by signed instrument,
delegate the Minister’s function under subsection (1) to an SES employee,
or acting SES employee, in the Department.
(5) In exercising a function delegated under
subsection (4), a delegate must comply with any directions of the
Minister.
Division 2—Determination of applications for financial assistance
231
Minister may grant financial assistance
(1) If, after considering the application,
any additional information given by a trustee of the fund, and APRA’s advice
under section 230A, the Minister is satisfied that the fund has suffered
an eligible loss as mentioned in subsection 229(1), the Minister is to
determine in writing:
(a) whether the public interest
requires that a grant of financial assistance should be made to a trustee of
the fund for the purposes of restoring the loss; and
(b) if so, the amount of the
assistance.
(2) Financial assistance payable to a trustee
of a fund is to be paid in such amounts, at such times, and in such manner, as
the Minister determines.
(3) To avoid doubt, the Minister may grant
financial assistance to a self‑managed superannuation fund under this section
as long as the fund met the requirements in subsection 229(1) at the time the
fund suffered the loss to which the assistance relates.
(4) The Consolidated Revenue Fund is
appropriated for the purposes of making payments of financial assistance
granted under this section.
(5) Amounts appropriated under this section
are not to be credited to the Australian Prudential Regulation Authority
Special Account.
232
Maximum amount of financial assistance
The amount of financial assistance to be
granted to a trustee of a fund in respect of the fund must not be greater than
the amount that the Minister determines to be the eligible loss suffered by the
fund.
233
Financial assistance to be subject to conditions
(1) The
payment to a trustee of a fund of a grant of financial assistance is subject to
the following conditions:
(a) a condition that the amount of
financial assistance granted will be deposited in the corpus of the fund;
(b) a condition that the amount will
be applied, within a period determined by the Minister:
(i) in making payments to persons
who were beneficiaries in the fund at the time the fund suffered the eligible
loss; or
(ii) for the benefit of those
persons in such other manner as the Minister approves in writing;
(c) a condition that a trustee of the
fund will prepare and give to the Minister such reports on the application of
the amount as are required by the Minister;
(d) such other conditions (if any) as
the Minister determines and notifies in writing to a trustee of the fund.
(2) Despite any law of the Commonwealth, a
State or a Territory, whether written or unwritten, or any provision of a trust
deed or other rules according to which a fund is administered:
(a) a trustee of a fund must comply
with a condition mentioned in paragraph (1)(b); and
(b) the trustee does not contravene
the law, trust deed or rules by complying with such a condition.
Division 3—Repayment of financial assistance
238
Financial assistance to be repaid in certain circumstances
(1) The trustee, or the trustees, of a fund
for which a grant of financial assistance has been made are liable to repay to
the Commonwealth the amount of the financial assistance or such part of that
amount as the Minister determines if:
(a) a condition to which the grant of
the financial assistance was subject has been contravened; or
(b) the grant of the financial
assistance is subject to a condition that a particular event does not occur and
that event has occurred.
(2) The Minister is to determine the manner
in which repayments of financial assistance are to be made.
(3) If the trustee, or the trustees, of a
fund are liable to pay an amount to the Commonwealth under subsection (1),
the Commonwealth may recover the amount as a debt.
239
Minister may remit liability
The Minister may remit the whole or a
part of the liability of a trustee of a fund under section 238.
240
Repayable grant to have priority over other debts
Despite any other law of the
Commonwealth or any law of a State or Territory, an amount payable to the
Commonwealth by a trustee of a fund under section 238 has priority over
all other debts (whether preferential, secured or unsecured).
Part 24—Facility to pay benefits to eligible rollover funds
241
Object of Part
The object of this Part is to provide
for a facility for the payment of benefits to eligible rollover funds.
242
Interpretation
In this Part:
eligible rollover fund means a fund that,
under the regulations, is taken to be an eligible rollover fund for the
purposes of this Part.
fund means a regulated superannuation fund or
an approved deposit fund.
243
Payment of benefits to eligible rollover fund
When section applies
(1) This section applies at a particular time
if:
(a) a person (the first person)
is a beneficiary of a fund (the transferor fund); and
(b) the time is after the date specified
in the regulations; and
(c) the conditions specified in the
regulations are satisfied.
Application to eligible rollover fund
(2) A trustee of the transferor fund may
apply to a trustee of an eligible rollover fund, on behalf of the first person,
for the issue to the first person of a superannuation interest in the eligible
rollover fund.
Consideration for issue
(3) The application is to be made on the
basis that:
(a) the consideration for the issue is
to be paid, on behalf of the first person, by a trustee of the transferor fund;
and
(b) the amount of the consideration is
equal to the amount ascertained in accordance with the regulations; and
(c) a trustee of the transferor fund
is not entitled to recover the consideration from the first person (except as a
result of the operation of subsection (5)).
Authorisation by beneficiary
(4) The first person is taken to have
authorised:
(a) the trustee of the transferor fund
who made the application to make the application; and
(b) the trustee of the transferor fund
who paid the consideration to pay the consideration.
This rule has effect despite any direction to the contrary
by the first person.
Beneficiary ceases to have rights against transferor
fund etc.
(5) If the superannuation interest is issued
in accordance with the application:
(a) the first person ceases to have
rights against the transferor fund; and
(b) if:
(i) immediately before the
interest was issued in accordance with the application, another person (the
second person) had a contingent right against the transferor fund to a
death or disability benefit; and
(ii) the contingent right
was derived from the first person’s capacity as a beneficiary of the transferor
fund;
the second person ceases to have
the contingent right against the transferor fund.
To avoid doubt, a reference in paragraph (a) to a
right against the transferor fund includes a reference to a contingent right to
a death or disability benefit.
Governing rules overridden
(6) This section has effect despite anything
in the governing rules of the transferor fund.
244
Operating standards for transferor funds—information and records
When section applies
(1) This section applies if an application is
made under section 243 by a trustee of a fund (the transferor fund)
to a trustee of an eligible rollover fund, on behalf of a person, for the issue
to the person of a superannuation interest in the eligible rollover fund.
Operating standards
(2) Without limiting, by implication, the
generality of the standards that may be prescribed under section 31 or 32,
those standards may include standards relating to the following matters:
(a) requiring a trustee of the
transferor fund to give to a trustee of the eligible rollover fund such
information about the person as is specified in the standards;
(b) requiring each trustee of the
transferor fund to ensure that a record of the application is kept and
retained.
248
Claims for benefits
(1) This section applies to a benefit held by
an eligible rollover fund, where the superannuation interest to which the
benefit relates was issued pursuant to an application under section 243 of
this Act or section 89 of the Retirement Savings Accounts Act 1997.
(2) A person who considers that he or she is
entitled to the benefit may apply in the approved form to a trustee of the fund
for payment of the benefit.
Note: The approved form of application may require
the person to set out his or her tax file number. See subsection 299U(6).
Part 24A—Transitional provisions relating to pre‑1 July 1995
automatic rollovers of benefits between funds
249
Object of Part
The object of this Part is to provide
for certain transitional measures relating to pre‑1 July 1995 automatic
rollovers of benefits between funds.
250
Definitions
In this Part:
eligible transitional fund means a fund that
was, at any time before 1 July 1995, an eligible rollover fund within the
meaning of old Part 24.
fund means a regulated superannuation fund or
an approved deposit fund.
old Part 24 means Part 24 as in
force at any time before 1 July 1995.
251
Rights of beneficiary to rolled‑over benefits
(1) If a fund has paid in accordance with old
Part 24 to an eligible transitional fund an amount equal to the benefits
of a beneficiary in the first‑mentioned fund:
(a) the beneficiary ceases to have any
rights against the first‑mentioned fund in respect of those benefits; but
(b) has the corresponding rights
against the eligible transitional fund in respect of those benefits.
(2) For the purposes of this section, a mere
contingent right to a death or disability benefit is taken not to be a right in
respect of the first‑mentioned benefits.
(3) Subsection (2) is enacted for the
avoidance of doubt.
252
Claims to rolled‑over benefits
(1) A person
who considers that, as a result of paragraph 251(1)(b), he or she is entitled
to benefits held by an eligible transitional fund may apply in the approved
form to a trustee of that fund for payment of the benefits.
Note: The approved form of application may require
the person to set out his or her tax file number. See subsection 299U(7).
Part 24B—Provisions relating to the administration by APRA and the
Commissioner of Taxation of superannuation funds with fewer than 5 members
Division 1—Monitoring of superannuation funds with fewer than 5 members
252A
APRA or Commissioner of Taxation may request certain information
Notice may be given
(1) APRA or the Commissioner of Taxation may
give a written notice under this section to a trustee of a regulated
superannuation fund if APRA or the Commissioner of Taxation, as the case
requires, considers that the fund has fewer than 5 members.
Information that may be requested
(2) The notice may require each trustee of
the fund, within a specified period (which must not be shorter than 21 days), to
ensure that APRA or the Commissioner of Taxation is informed:
(a) whether or not the fund was a self
managed superannuation fund as at the date (the response date) on
which APRA or the Commissioner of Taxation was so informed; or
(b) if the fund was not a self managed
superannuation fund as at the response date—whether the trustee, or the
trustees, of the fund consider that the fund is likely to become a self managed
superannuation fund within the period specified in the notice; and
(c) if the fund was a self managed
superannuation fund as at the response date—whether the trustee, or the
trustees, of the fund consider that the fund is likely to cease to be a self
managed superannuation fund within the period specified in the notice.
Offence
(3) A person who contravenes subsection (2)
is guilty of an offence punishable on conviction by a fine not exceeding 50
penalty units.
Strict liability
(4) An offence under subsection (3) is
an offence of strict liability.
252B
Contravention notices
Service of notice
(1) If APRA or the Commissioner of Taxation
has reason to believe that a person has contravened section 252A, APRA or
the Commissioner of Taxation, as the case requires, may cause a notice (a
contravention notice) to be served on the person in accordance with the
regulations.
Particulars
(2) A contravention notice is to set out:
(a) particulars of the alleged
contravention; and
(b) the prescribed penalty for the
contravention and the person to whom, the place at which, and the manner in
which, the penalty may be paid; and
(c) the date of the notice and a
statement that the penalty may be paid within 14 days after that date;
and may contain any other particulars that APRA or the
Commissioner of Taxation thinks necessary.
Notification that person may pay prescribed penalty
(3) A contravention notice is to state that,
if the person does not wish the matter to be dealt with by a court, the person
may lodge with APRA or the Commissioner of Taxation, as the case requires, a
signed statement to that effect in the manner stated in the notice and pay the
prescribed penalty for the contravention.
Prescribed penalty
(4) For the purposes of this section, the
prescribed penalty for a contravention is 2 penalty units for each month or
part of a month during which the contravention continues, up to a maximum of 10
penalty units.
Consequences of payment of prescribed penalty
(5) If:
(a) a contravention notice has been
served on a person; and
(b) before the end of the period of 14
days stated in the notice, or, if APRA or the Commissioner of Taxation allows,
at any time before service of the summons in respect of the contravention, the
amount of the prescribed penalty is paid in accordance with the notice; and
(c) a statement, signed by the person,
to the effect that the person does not wish the matter to be dealt with by a
court, is received by the person to whom the amount of penalty is paid; and
(d) the contravention that resulted in
the service of the contravention notice has ceased;
the following provisions have effect:
(e) any liability of the person in
respect of the contravention is taken to be discharged;
(f) no further proceedings are to be
taken in respect of the contravention;
(g) no conviction for the
contravention is taken to have been recorded.
Payment by cheque
(6) If the amount of the prescribed penalty
is paid by cheque, payment is taken not to be made unless the cheque is
honoured upon presentation.
Other proceedings not affected
(7) Except as provided by subsection (5),
this section does not prejudice or affect the institution or prosecution of
proceedings in respect of a contravention of section 252A or limit the
amount of the fine that may be imposed by a court in respect of such
contravention.
No requirement to serve contravention notice
(8) This section does not require the service
of a contravention notice or affect the liability of a person to be prosecuted
in a court in respect of a contravention of section 252A in relation to
which a contravention notice has not been served.
Division 3—Transitional and savings provisions relating to the
regulation of self managed superannuation funds by the Commissioner of Taxation
252D
Definition
In this Division:
commencement day means the day on which
section 1 of the Superannuation Legislation Amendment Act (No. 3)
1999 commenced.
252E
Instruments made or issued by APRA or by the Commissioner of Taxation
Instruments made by APRA
(1) An instrument that:
(a) relates to a superannuation fund;
and
(b) was in force immediately before a
particular time (the switching time); and
(c) was made or issued (whether
before, on or after the commencement day) by APRA under a provision of this Act
that:
(i) immediately before the
switching time, was administered by APRA in relation to the fund; and
(ii) as at the switching
time, is administered by the Commissioner of Taxation in relation to the fund;
has effect, at and after the switching time (subject to
any later application of this section), as if it had been made or issued by the
Commissioner of Taxation.
Instruments made by Commissioner of Taxation
(2) An instrument that:
(a) relates to a superannuation fund;
and
(b) was in force immediately before a
particular time (the switching time); and
(c) was made or issued by the
Commissioner of Taxation under a provision of this Act that:
(i) immediately before the
switching time, was administered by the Commissioner of Taxation in relation to
the fund; and
(ii) as at the switching
time, is administered by APRA in relation to the fund;
has effect, at and after the switching time (subject to
any later application of this section), as if it had been made or issued by
APRA.
Instruments for a limited period
(3) If an instrument referred to in this
section was, when made, to have effect only for a limited period, it has effect
only for so much of the period as has not already expired before the switching
time.
Instruments not in operation
(4) A reference in this item to an instrument
in force includes a reference to an instrument that has been made but is not
yet in operation.
252F
Obligations owed by or to APRA or the Commissioner of Taxation
(1) Subject to section 252G, an
obligation that:
(a) relates to a superannuation fund;
and
(b) was owed by APRA, or to APRA,
immediately before a particular time (the switching time); and
(c) was owed (whether before, on or
after the commencement day) under a provision of this Act that:
(i) immediately before the
switching time, was administered by APRA in relation to the fund; and
(ii) as at the switching
time, is administered by the Commissioner of Taxation in relation to the fund;
has effect, at and after the switching time (subject to
any later application of this section), as if it had been owed by, or to, the
Commissioner of Taxation.
Rights and powers of APRA
(2) Subject to section 252G, a right or
power that:
(a) relates to a superannuation fund;
and
(b) was possessed by, or conferred on,
APRA immediately before a particular time (the switching time);
and
(c) was possessed or conferred
(whether before, on or after the commencement day) under a provision of this
Act that:
(i) immediately before the
switching time, was administered by APRA in relation to the fund; and
(ii) as at the switching
time, is administered by the Commissioner of Taxation in relation to the fund;
has effect, at and after the switching time (subject to
any later application of this section), as if it had been possessed by, or
conferred on, the Commissioner of Taxation.
Obligations owed by, or to, the Commissioner of
Taxation
(3) An obligation that:
(a) relates to a superannuation fund;
and
(b) was owed by the Commissioner of
Taxation, or to the Commissioner of Taxation, immediately before a particular
time (the switching time); and
(c) was owed under a provision of this
Act that:
(i) immediately before the
switching time, was administered by the Commissioner of Taxation in relation to
the fund; and
(ii) as at the switching
time, is administered by APRA in relation to the fund;
has effect, at and after the switching time (subject to
any later application of this section), as if it had been owed by, or to, APRA.
Rights and powers of the Commissioner of Taxation
(4) A right or power that:
(a) relates to a superannuation fund;
and
(b) was possessed by, or conferred on,
the Commissioner of Taxation immediately before a particular time (the switching
time); and
(c) was possessed or conferred under a
provision of this Act that:
(i) immediately before the
switching time, was administered by the Commissioner of Taxation in relation to
the fund; and
(ii) as at the switching
time, is administered by APRA in relation to the fund;
has effect, at and after the switching time (subject to
any later application of this section), as if it had been possessed by, or
conferred on, APRA.
252G
Outstanding annual returns and amounts
Outstanding annual returns etc.—self managed funds
(1) If:
(a) a superannuation fund was a self
managed superannuation fund at either of the following times:
(i) the end of the last
day of a designated year of income; or
(ii) if the fund ceased to
exist during a designated year of income—the time at which the fund ceased to
exist; and
(b) at that time, a trustee of the
fund was under an obligation to ensure that APRA is given an annual return in
respect of a previous year of income, or any other report or information under
this Act or the Financial Sector (Collection of Data) Act 2001;
each trustee of the fund is taken (subject to any later
application of this section) to be under an obligation, beginning immediately
after that time, to ensure that the annual return, report or information is
given to the Commissioner of Taxation. The annual return, report or information
is to be given in the approved form.
Note: This provision only affects annual returns
outstanding from years before the designated year of income. A trustee
will still be required to submit a return under section 36A for the
designated year of income (and also under the Financial Sector (Collection
of Data) Act 2001 if the fund changed status during the designated year of
income). Levy will be payable on lodgment of any such return.
Outstanding annual returns etc.—other funds
(2) If:
(a) a superannuation fund was a fund
other than a self managed superannuation fund at either of the following times:
(i) the end of the last
day of a designated year of income; or
(ii) if the fund ceased to
exist during a designated year of income—the time at which the fund ceased to
exist; and
(b) at that time, a trustee of the
fund was under an obligation to ensure that the Commissioner of Taxation is
given an annual return in respect of a previous year of income, or any other
report or information under this Act;
each trustee of the fund is taken (subject to any later
application of this section) to be under an obligation, beginning immediately
after that time, to ensure that the annual return, report or information is
given to APRA. The annual return, report or information is to be given in the
approved form.
Note: This provision only affects annual returns
outstanding from years before the designated year of income. A trustee
will still be required to submit a return under the Financial Sector
(Collection of Data) Act 2001 for the designated year of income (and also
under section 36A if the fund changed status during the designated year of
income). Levy will be payable on lodgment of any such return.
Outstanding levy—self managed funds
(3) If:
(a) a superannuation fund was a self
managed superannuation fund at either of the following times:
(i) the end of the last
day of a designated year of income; or
(ii) if the fund ceased to
exist during a designated year of income—the time at which the fund ceased to
exist; and
(b) at that time, an amount was
payable by the trustee, or the trustees, of the superannuation fund to APRA on
behalf of the Commonwealth under a prescribed Act in respect of a previous year
of income;
then:
(c) the amount is taken (subject to
any later application of this section) to be payable by the trustee, or the
trustees, of the superannuation fund, immediately after the that time, to the
Commissioner of Taxation on behalf of the Commonwealth; and
(d) the Commissioner of Taxation has
the same power to waive or remit the amount as APRA would have had if this
subsection had not been enacted.
Outstanding levy—other funds
(4) If:
(a) a superannuation fund was a fund
other than a self managed superannuation fund at either of the following times:
(i) the end of the last
day of a designated year of income; or
(ii) if the fund ceased to
exist during a designated year of income—the time at which the fund ceased to
exist; and
(b) at that time, an amount was
payable by the trustee, or the trustees, of the superannuation fund to the
Commissioner of Taxation under a prescribed Act in respect of a previous year
of income;
then:
(c) the amount is taken (subject to
any later application of this section) to be payable by the trustee, or the
trustees, of the superannuation fund, immediately after that time, to APRA on
behalf of the Commonwealth; and
(d) APRA has the same power to waive
or remit the amount as the Commissioner of Taxation would have had if this
subsection had not been enacted.
Regulations
(5) The regulations may prescribe exceptions
to the rules set out in subsections (1) to (4), including, but not limited
to the following:
(a) prescribing that, in specified
circumstances, a trustee of a superannuation fund is taken to be under an
obligation to give a return, report or information to APRA rather than to the
Commissioner of Taxation, or to the Commissioner of Taxation rather than to
APRA;
(b) prescribing that, in specified
circumstances, an amount is taken to be payable by a trustee of a
superannuation fund to APRA rather than to the Commissioner of Taxation, or to
the Commissioner of Taxation rather than to APRA.
Definitions
(6) In this section:
amount means an amount of levy or an amount
of late payment penalty.
designated year of income means the 1999‑2000
year of income or a later year of income.
prescribed Act means the following:
(a) the Superannuation (Self
Managed Superannuation Funds) Taxation Act 1987;
(b) the Financial Institutions
Supervisory Levies Collection Act 1998;
(c) any other Act prescribed by the
regulations for the purposes of this paragraph.
252H
Regulations
The regulations may deal with other
transitional matters arising from the enactment of the Superannuation
Legislation Amendment Act (No. 3) 1999.
Part 25—Monitoring and investigating superannuation entities
Division 1—Preliminary
253
Objects of Part
The objects of this Part are:
(a) to ensure that the Regulator has
sufficient power to monitor superannuation entities (Division 2); and
(b) to empower the Regulator to
require the trustee, or the trustees, of a superannuation entity to appoint an
individual, or a committee, to investigate the financial position of the entity
(Division 3); and
(c) to authorise the Regulator to
conduct an investigation of the whole or a part of the affairs of a
superannuation entity (Divisions 4, 5, 6, 7, 8 and 9); and
(d) to authorise the Regulator to
accept written undertakings and to apply to the Court for an order remedying
breaches of such undertakings.
253A
Notices may be given to former relevant persons
Any provision of this Part that empowers
a notice to be given to a relevant person in relation to a fund or trust also
empowers such a notice to be given to a person who has at any time been a
relevant person in relation to the fund or trust.
Division 2—Monitoring superannuation entities
254
Information to be given to Regulator
(1) Each trustee of a superannuation entity
established after the commencement of this section must ensure that, within the
prescribed period after the establishment of the entity, APRA, or such other
body or person as is specified in the regulations, is given such information as
is required by the approved form.
Note: The approved form for information required to
be given under this subsection may require the trustee to set out the tax file
number of the entity. See subsection 299U(8).
(1A) Without limiting subsection (1),
regulations for the purposes of that subsection may specify that information is
to be given to different persons or bodies in respect of different classes of
superannuation funds.
(2) For the purposes of this Act, the
Regulator or an authorised person may, by written notice to a trustee of a
superannuation entity, require each trustee of the entity to ensure that,
within a specified period, the Regulator or an authorised person is given, in
relation to a specified year of income of the entity, such information, or a
report on such matters, as is set out in the notice.
Note: The information may include the tax file
number of the entity. See subsection 299U(9).
(3) If a trustee of a superannuation entity
gives information to APRA or to another person or body as required by subsection (1),
APRA or the other person or body must give to the trustee a written statement
that the information has been received.
(4) A trustee is guilty of an offence if the
trustee contravenes subsection (1).
Penalty: 50 penalty units.
(5) A trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 25 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
255
Regulator may require production of books
(1) For the purposes of this Act, the
Regulator or an authorised person may by written notice to a relevant person in
relation to a superannuation entity, require the relevant person to produce to
the Regulator or an authorised person, at such reasonable time and reasonable
place as are specified in a notice, any books relating to the affairs of the
entity.
(2) If any book produced to the Regulator or
an authorised person under subsection (1) is not in writing in the English
language, the Regulator or an authorised person may require the relevant person
to produce to the Regulator or an authorised person a version of the book that
is in writing in the English language.
(3) The Regulator or an authorised person may
inspect, take extracts from and make copies of any book, or of any version of
any book, produced to the Regulator or an authorised person under this section.
(4) The powers of the Regulator or an
authorised person under this section may be exercised in relation to a
superannuation entity even though an investigation of the whole or a part of
the affairs of the entity is being conducted under section 263.
256
Access to premises
(1) For the purposes of this Act, an
authorised person may enter, at any reasonable time, any premises at which the
person has reason to believe books relating to the affairs of a superannuation
entity are kept and may:
(a) inspect any book found on the
premises that relates to those affairs or that the authorised person believes
on reasonable grounds to relate to those affairs; and
(b) make copies of, or take extracts
from, any such book.
(2) An authorised person may not, under subsection (1),
enter premises unless the occupier of the premises has consented to the entry.
Division 3—APRA may require trustee of superannuation entity to appoint
an individual, or a committee, to investigate the financial position of the
entity
257
Investigation of financial position of superannuation entity
(1) APRA may, by written notice given to a
trustee of a superannuation entity, require the trustee, or the trustees, of
the entity to appoint an individual, or a committee of individuals, to:
(a) carry out an investigation of the
whole or a specified part of the financial position of the entity as at a
specified time or in relation to a specified period; and
(b) make a report on that
investigation.
(2) Each trustee of the entity must ensure
that a copy of the notice is given to the individual or to each member of the
committee (whichever is relevant) within 3 days of the appointment of the
individual or member.
258
Qualifications of investigator or investigators
(1) If APRA’s notice requires the appointment
of a single person, the notice may specify qualifications (whether academic,
professional or by way of experience) that must be held by the person.
(2) If APRA’s notice requires the appointment
of a committee of persons, the notice may require that the committee consist of
persons holding such respective qualifications (whether academic, professional
or by way of experience) as are specified in the notice.
(3) If APRA’s notice includes a requirement
of a kind mentioned in subsection (1) or (2), the person or persons
appointed must hold the qualifications required by the notice.
259
APRA may veto appointment of investigator or investigators
(1) Each trustee of the entity must ensure
that, within 7 days after the date on which the notice was given, APRA is advised,
in writing, of the name of the person or persons appointed.
(2) If APRA notifies a trustee of the entity
that the person is, or any or all of the persons are, not acceptable to APRA,
the trustee, or trustees, of the entity must, within 7 days after the date on
which the notice was given:
(a) appoint a different individual or
individuals; and
(b) advise APRA, in writing, of the
name of the individual or individuals so appointed.
(3) APRA may, within 7 days after the advice
was given under subsection (1) or (2), notify a trustee of the entity, in
writing, that the person is, or that any or all of the persons are, not
acceptable to APRA.
260
Deadline for receipt of report
(1) APRA’s notice under section 257 must
specify a date as the deadline for the receipt of the report.
(2) A person appointed to investigate and
make a report under subsection 257(1) (whether as an individual or as a member
of a committee) is guilty of an offence if the report is not given to APRA:
(a) before the expiry of the deadline;
or
(b) within such further time as APRA,
by written notice, allows.
Penalty: 100 penalty units.
(3) A person appointed to investigate and
make a report under subsection 257(1) (whether as an individual or as a member
of a committee) is guilty of an offence if the report is not given to APRA:
(a) before the expiry of the deadline;
or
(b) within such further time as APRA,
by written notice, allows.
This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
261
Contents of report etc.
(1) APRA’s notice under section 257 may
require the report to contain a statement of the person’s opinion or the
committee’s opinion, as the case may be, about such matters as are specified in
the notice.
(2) Subject to subsection (3), if APRA’s
notice under section 257 includes a requirement of a kind mentioned in subsection (1)
of this section, the person’s report or the committee’s report must contain a
statement of the person’s opinion or the committee’s opinion, as the case may
be, about the matters specified in the notice.
(3) If the members of a committee are
divided:
(a) if the division relates to the
content of a statement of the committee’s opinion about a particular matter—the
committee’s report must contain statements of the respective members’ opinions
about that matter; or
(b) in any other case—the committee’s
report is to be divided accordingly.
(4) The report must be signed by the person
or persons appointed.
262
Trustee must comply with requirements
(1) A trustee is guilty of an offence if the
trustee contravenes a requirement imposed on the trustee by or under section 257,
258 or 259.
Penalty: 100 penalty units.
(2) A trustee is guilty of an offence if the
trustee contravenes a requirement imposed on the trustee by or under section 257,
258 or 259. This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
Division 3A—Regulator may accept and enforce undertakings
262A
Acceptance and enforcement of undertakings
(1) The Regulator may accept a written
undertaking given by a person in connection with a matter in relation to which
the Regulator has a function or power under this Act.
(2) The person may withdraw or vary the
undertaking at any time, but only with the Regulator’s consent.
(3) If the Regulator considers that the
person who gave the undertaking has breached any of its terms, the Regulator
may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person
has breached a term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the person to
comply with that term of the undertaking;
(b) an order directing the person to
pay to the Commonwealth an amount up to the amount of any financial benefit
that the person has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the Court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
Division 4—Investigations by Regulator
263
Investigation of superannuation entity
(1) If it appears to the Regulator that:
(a) a contravention of this Act or the
regulations or the Financial Sector (Collection of Data) Act 2001 may
have occurred or be occurring in relation to a superannuation entity; or
(b) the financial position of a
superannuation entity may be unsatisfactory; or
(c) the trustee, or the trustees, of a
regulated superannuation fund or an approved deposit fund have refused or
failed to give effect to a determination of the Superannuation Complaints
Tribunal under section 37 of the Superannuation (Resolution of
Complaints) Act 1993;
the Regulator may, by written notice to a trustee of the
entity, tell the trustee that the Regulator proposes to conduct an
investigation of the whole or a part of the affairs of the entity.
(2) If a notice is given under subsection (1)
to a trustee of a superannuation entity, the following provisions of this
Division apply in relation to the entity.
(3) To avoid doubt, this section applies to a
superannuation entity, in the same way as this section applies to any other
superannuation entity, if either of the following apply:
(a) the superannuation entity is wound
up, dissolved or terminated;
(b) the trustee of the superannuation
entity is or becomes:
(i) if the trustee is a
body corporate—an externally‑administered body corporate (within the meaning of
the Corporations Act 2001); or
(ii) if the trustee is an
individual—insolvent under administration.
264
Power of Regulator to obtain information or freeze assets
Regulator may act to preserve values of interests
(1) The Regulator may do any one or more of the
things set out in subsections (2) to (4) if it appears to the Regulator
that conduct that has been, is being, or is proposed to be, engaged in by a
trustee or an investment manager of a superannuation entity is likely to:
(a) if the Regulator intends to do a
thing set out in subsection (2)—adversely affect the values of the
interests of beneficiaries; or
(b) otherwise—significantly adversely
affect the values of the interests of the beneficiaries.
(2) The Regulator may, by written notice
given to a person who is a relevant person in relation to the entity, require
the person, within a stated period, to give to the Regulator or to an
authorised person such information, or a report on such matters, relating to
the affairs of the entity as are set out in the notice.
(3) The Regulator may, by written notice
given to a trustee, direct the trustee, or the trustees, of the entity, subject
to such conditions (if any) as are stated in the notice:
(a) not to acquire assets on behalf of
the entity; or
(b) not to dispose of, or otherwise
deal, or deal in a particular way, in:
(i) any of the assets of
the entity; or
(ii) any of the assets of
the entity included in a specified class of assets; or
(iii) a specified asset or
assets of the entity;
until the notice is revoked or for a period, or until the
occurrence of an event, referred to in the notice.
Note: For example, the Regulator may direct a
trustee not to make any withdrawals from a bank account without prohibiting the
making of deposits to the credit of the account.
(3A) The Regulator may, by written notice given
to an investment manager of the entity, direct that person, subject to such
conditions (if any) as are stated in the notice:
(a) not to acquire assets on behalf of
the entity; or
(b) not to dispose of, or otherwise
deal, or deal in a particular way, in:
(i) any of the assets of
the entity; or
(ii) any of the assets of
the entity included in a specified class of assets; or
(iii) a specified asset or
assets of the entity;
until the notice is revoked or for a period, or until the
occurrence of an event, referred to in the notice.
Note: For example, the Regulator may direct an
investment manager not to make any withdrawals from a bank account without
prohibiting the making of deposits to the credit of the account.
(4) The Regulator may, by written notice
given to a person (other than a trustee or an investment manager) who has
possession, custody or control of an asset or assets of the entity, direct the
person, subject to such conditions (if any) as are stated in the notice, not to
dispose of, or otherwise deal, or deal in a particular way, in:
(a) if the person has possession,
custody or control of a single asset—that asset; or
(b) if the person has possession,
custody or control of 2 or more assets:
(i) any of those assets;
or
(ii) any of those assets
that are included in a specified class of assets; or
(iii) such of those assets
as are identified in the notice;
until the notice is revoked or for a period, or until the
occurrence of an event, referred to in the notice.
Note: For example, the Regulator may direct a person
not to make any withdrawals from a bank account without prohibiting the making
of deposits to the credit of the account.
(4A) To avoid any doubt, the power of the
Regulator under subsection (3), (3A) or (4) to direct a person not to deal
in a particular way in assets of an entity includes power to direct a person
not to remove from Australia assets of the entity that are in Australia.
Effect of direction on validity of transactions
(5) Subsection (3), (3A) or (4) does not
affect the validity of a transaction entered into by a person in contravention
of a notice given under that subsection.
265
Inspectors
(1) The Regulator may, in writing, appoint a
member of the staff of the Regulator, or a member of the staff of the other
Regulator, to be an inspector for the purposes of the conduct of investigations
under this Division in relation to the affairs of superannuation entities.
(2) The Regulator must cause to be issued to
each person appointed under subsection (1) an identity card that sets out
the name and appointment of the person and to which is attached a recent
photograph of the person.
(3) A person who was appointed under subsection (1)
must not, upon ceasing to be an inspector, fail, without reasonable excuse, to
return to the Regulator the identity card issued to him or her under this
section.
Penalty for a contravention of this subsection: One penalty
unit.
(4) Subsection (3) is an offence of
strict liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
266
Delegation by inspector
(1) An inspector may, by signed writing,
delegate to a member of the staff of the Regulator any of the inspector’s
powers under this Part.
(2) A delegate must, on the request of a
person in relation to whom the delegated powers are exercisable or of a person
affected by the exercise of those powers, produce the instrument of delegation,
or a copy of the instrument, for inspection.
(3) A reference in this Part to an inspector
includes a reference to a delegate of an inspector.
267
Regulator may exercise powers of inspector
The Regulator may exercise any of the
powers of an inspector under this Part and, if he or she does so, then, for the
purposes of the exercise of those powers by the Regulator, a reference in this
Part to an inspector is taken to be a reference to the Regulator.
268
Inspector may enter premises for purposes of an investigation
If an inspector believes on reasonable
grounds that it is necessary to enter premises for the purposes of an
investigation of the whole or a part of the affairs of a superannuation entity,
the inspector may, at any reasonable time, enter the premises and:
(a) inspect any book found on the
premises that relates to the affairs of the entity or that he or she believes
on reasonable grounds to relate to those affairs; and
(b) make copies of, or take extracts
from, any such book.
269
Inspector may require production of books
For the purposes of an investigation of
the whole or a part of the affairs of a superannuation entity, an inspector
may, by written notice given to a person who:
(a) is a relevant person in relation
to the entity; or
(b) the inspector believes on
reasonable grounds has the custody or control of any books relating to those
affairs;
require the person to produce all or any of those books to
the inspector.
270
Powers of inspector to require assistance from, and examine, current and former
relevant persons and other persons
An inspector may, by written notice
given to a person:
(a) who is, or has been, a relevant
person in relation to a superannuation entity whose affairs or a part of whose
affairs the Regulator is investigating; or
(b) who the inspector, on reasonable
grounds, suspects or believes can give information relevant to the
investigation of that entity;
require the person to do either or both of the following:
(c) to give the inspector all reasonable
assistance in connection with the investigation;
(d) to appear before the inspector for
examination concerning matters relevant to the investigation.
271
Application for warrant to seize books not produced
(1) If an inspector has reasonable grounds to
suspect that there are, or may be within the next 3 days, on particular
premises, books:
(a) whose production has been required
under this Part; and
(b) that have not been produced in
compliance with that requirement;
he or she may:
(c) lay before a magistrate an
information or complaint on oath setting out those grounds; and
(d) apply for the issue of a warrant
to search the premises for those books.
(2) On an application under this section, the
magistrate may require further information to be given, either orally or by
affidavit, in connection with the application.
272
Grant of warrant
Section applies if magistrate satisfied of certain
things
(1) This section applies if, on an
application under section 271, the magistrate is satisfied that there are
reasonable grounds to suspect that there are, or may be within the next 3 days,
on particular premises, particular books:
(a) whose production has been required
under this Part; and
(b) that have not been produced in
compliance with that requirement.
Issue of warrant
(2) The magistrate may issue a warrant
authorising:
(a) a member of the Australian Federal
Police named in the warrant; or
(b) that member together with the
inspector who applied for the issue of the warrant;
with such assistance, and by such force, as is necessary
and reasonable, to do the acts set out in subsection (3).
Acts authorised by warrant
(3) The acts
are:
(a) entering on or into the premises;
and
(b) searching the premises; and
(c) breaking open and searching anything,
whether a fixture or not, in or on the premises; and
(d) taking possession of, or securing
against interference, books that appear to be any or all of those books.
Grounds for issuing warrant to be set out
(4) If the magistrate issues such a warrant,
he or she must set out on the information or complaint laid before him or her
under subsection 271(1) for the purposes of the application:
(a) which of the grounds set out in
the information; and
(b) particulars of any other grounds;
he or she has relied on to justify the issue of the
warrant.
Contents of warrant
(5) A warrant
under this section must:
(a) specify the premises and books
referred to in subsection (1); and
(b) state whether entry is authorised
to be made at any time of the day or night or only during specified hours; and
(c) state that the warrant ceases to
have effect on a specified day that is not more than 7 days after the day of
issue of the warrant.
273
Powers if books produced or seized
Section applies if books produced, seized etc.
(1) This section applies if:
(a) books are produced to a person
under a requirement made under this Part; or
(b) under a warrant issued under
section 272, a person:
(i) takes possession of
books; or
(ii) secures books against
interference; or
(c) because of a previous application
of subsection (8) of this section, books are delivered into a person’s
possession.
Possession in (1)(a) case
(2) If paragraph (1)(a) applies, the
person may take possession of any of the books.
Power to inspect etc.
(3) The person may inspect, and may make
copies of, or take extracts from, any of the books.
Power to use for proceedings
(4) The person may use, or permit the use of,
any of the books for the purposes of a proceeding.
Retaining possession
(5) The person may retain possession of any
of the books for so long as is necessary:
(a) for the purposes of exercising a
power conferred by this section (other than this subsection and subsection (7));
or
(b) for the purposes of the
investigation; or
(c) for a decision to be made about
whether or not a proceeding to which the books concerned would be relevant
should be begun; or
(d) for such a proceeding to be begun
and carried on.
Claims or liens
(6) No‑one is entitled, as against the
person, to claim a lien on any of the books, but such a lien is not otherwise
prejudiced.
Right of inspection
(7) While the books are in the person’s
possession, the person must permit another person to inspect at all reasonable
times such (if any) of the books as the other person would be entitled to
inspect if they were not in the first‑mentioned person’s possession.
Delivery into possession of Regulator etc.
(8) Unless subparagraph (1)(b)(ii)
applies, the person may deliver any of the books into the possession of the
Regulator or of a person authorised by the Regulator to receive them.
Explanation of matters relating to books
(9) If paragraph (1)(a) or (b) applies,
the person, or a person into whose possession the person delivers any of the
books under subsection (8), may require:
(a) if paragraph (1)(a) applies—a
person who so produced any of the books; or
(b) in any case—a person who was a
party to the compilation of any of the books;
to explain to the best of his or her knowledge and belief
any matter about the compilation of any of the books or to which any of the
books relate.
274
Powers if books not produced
If a person fails to produce particular
books in compliance with a requirement made by another person under this Part,
the other person may require the first‑mentioned person to state, to the best
of his or her knowledge and belief:
(a) where the books may be found; or
(b) who last had possession, custody
or control of the books and where that person may be found.
275
Power to require person to identify property of superannuation entity
A person who has power under this Part
to require another person to produce books relating to affairs of a
superannuation entity may, whether or not that power is exercised, require the
other person, so far as the other person can do so:
(a) to identify property of the
entity; and
(b) to explain how a trustee or an
investment manager of the entity has kept account of that property.
Division 5—Examinations
276
Application of Division
This Division applies if, pursuant to a
requirement made under paragraph 270(d), a person (the examinee)
appears before an inspector.
277
Requirements made of an examinee
(1) The inspector may examine the examinee on
oath or affirmation and may, for that purpose:
(a) require the examinee either to
take an oath or make an affirmation; and
(b) administer an oath or affirmation
to the examinee.
(2) The oath or affirmation to be taken or
made by the examinee for the purposes of the examination is an oath or
affirmation that the statements that the examinee will make will be true.
(3) The inspector may require the examinee to
answer a question that is put to the examinee at the examination and is
relevant to a matter that the Regulator is investigating, or is to investigate.
278
Examination to be in private
(1) The examination is to take place in
private and the inspector may give directions about who may be present during
it, or during a part of it.
(2) A person must not be present at the
examination unless he or she:
(a) is the inspector or the examinee;
or
(b) is a member of the staff of the
Regulator authorised by the Regulator to attend the examination; or
(c) is entitled to be present under:
(i) a direction under subsection (1);
or
(ii) subsection 279(1).
(3) A person
who contravenes subsection (2) is guilty of an offence punishable on
conviction by a fine not exceeding 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: A defendant bears an evidential burden in
relation to the matter in paragraphs (2)(a), (b) and (c) (see subsection
13.3(3) of the Criminal Code).
279
Examinee’s lawyer may attend
(1) The examinee’s lawyer may be present at
the examination and may, at such times during it as the inspector determines:
(a) address the inspector; and
(b) examine the examinee;
about matters about which the inspector has examined the
examinee.
(2) If, in the inspector’s opinion, a person
is trying to obstruct the examination by exercising rights under subsection (1),
the inspector may require the person to stop addressing the inspector, or
examining the examinee, as the case requires.
280
Record of examination
(1) The inspector must cause a written record
to be made of statements made at the examination.
(2) The inspector may require the examinee to
read the written record, or to have it read to him or her, and may require him
or her to sign it.
(3) The inspector must give to the examinee a
copy of the written record, without charge, but subject to such conditions (if
any) as the inspector imposes.
281
Giving copies of record to other persons
Copies for proceedings
(1) If a person’s lawyer satisfies the
Regulator that the person is carrying on, or is contemplating in good faith, a
proceeding in respect of a matter to which the examination related, the
Regulator may give the lawyer:
(a) a copy of a written record of the
examination; or
(b) a copy of that record together
with a copy of any related book.
Copies to be used only for proceedings
(2) If the Regulator gives a copy to a person
under subsection (1), the person, or any other person who has possession,
custody or control of the copy or a copy of it, must not, except in connection
with preparing, beginning or carrying on, or in the course of, a proceeding,
intentionally:
(a) use the copy or a copy of it; or
(b) publish, or communicate to a
person, the copy, a copy of it, or any part of the copy’s contents.
Penalty: Imprisonment for 6 months.
282
Copies given subject to conditions
(1) If a copy is given to a person under
subsection 280(3) subject to conditions, the person, and any other person who
has possession, custody or control of the copy or a copy of it, must comply
with the conditions.
(2) A person who intentionally or recklessly
contravenes this section is guilty of an offence punishable on conviction by
imprisonment for a period not exceeding 6 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
283
Record to accompany report
(1) When a report about the investigation is
prepared under section 284, each record (if any) of the examination is to
accompany the report.
(2) If:
(a) in the Regulator’s opinion, a
statement made at an examination is relevant to any other investigation under
Division 4; and
(b) a record of the statement was made
under section 280; and
(c) a report about the other
investigation is prepared under section 284;
a copy of the record must accompany the report.
Division 6—Reports
284
Report of inspector
(1) An inspector must, on completion or
termination of an investigation, prepare a report about the investigation.
(2) The report must set out:
(a) the inspector’s findings about the
matters investigated; and
(b) the evidence and other material on
which these findings were based; and
(c) such other matters relating to or
arising out of, the investigation as the inspector thinks fit.
(3) The Regulator:
(a) must give a copy of the report to each
trustee of the superannuation entity to which the investigation related; and
(b) if the report, or a part of the
report, relates to the affairs of another person to a material extent—may, on
the Regulator’s own initiative or at the request of that person, give a copy of
the report or part of that report, to that person; and
(c) if the report, or a part of the
report, relates to a contravention of a law of the Commonwealth, of a State or
of a Territory—may give a copy of the whole or a part of the report to:
(i) the Australian Federal
Police; or
(ii) the Chief Executive Officer
of the Australian Crime Commission; or
(iii) the Director of Public
Prosecutions; or
(iv) a prescribed agency.
(4) APRA and ASIC must give each other a copy
of any reports they prepare under this section.
(5) ASIC and the Commissioner of Taxation
must give each other a copy of any report they prepare under this section in
relation to a self managed superannuation fund.
Division 7—Offences
285
Compliance with requirements made under this Act
A person must not intentionally or
recklessly refuse or fail to comply with a requirement of the Regulator, an
authorised person or an inspector under this Act.
Penalty:
(a) in respect of a requirement under
subsection 264(3), (3A) or (4)—imprisonment for 2 years; or
(b) otherwise—30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
286
Concealing books relevant to investigation
A person who knows that the Regulator is
investigating, or is about to investigate, a matter must not, with intent to
delay or obstruct the investigation or proposed investigation:
(a) in any case—conceal, destroy,
mutilate or alter a book relating to that matter; or
(b) if a book relating to that matter
is in a particular State or Territory—take or send the book out of that State
or Territory or out of Australia.
Penalty: Imprisonment for 2 years.
287
Self‑incrimination
Self‑incrimination not a reasonable excuse
(1) For the purposes of this Part, it is not
a reasonable excuse for a person to refuse or fail:
(a) to give information; or
(b) to sign a record; or
(c) to produce a book;
in accordance with a requirement made of the person, that
the information, signing the record or production of the book, as the case may
be, might tend to incriminate the person or make the person liable to a
penalty.
Self‑incrimination as grounds for inadmissibility
(2) Subsection (3)
applies if:
(a) before:
(i) making an oral
statement giving information; or
(ii) signing a record;
as required under this Part, a
person claims that the statement or signing the record, as the case may be,
might tend to incriminate the person or make the person liable to a penalty;
and
(b) the statement or signing the
record, as the case may be, might in fact tend to incriminate the person or make
the person liable to a penalty.
(2A) Subsection (2) does not apply to a
person that is a body corporate if the claim relates to a requirement made
after the commencement of this subsection.
Inadmissibility of statements etc.
(3) Subject to subsection (4), none of
the following:
(a) the statement;
(b) the fact that the person has
signed the record;
is admissible in evidence against the person in a criminal
proceeding or a proceeding for the imposition of a penalty.
Exceptions
(4) Subsection (3) does not apply to
admissibility in proceedings in respect of:
(a) in the case of the making of a
statement—the falsity of the statement; or
(b) in the case of the signing of a
record—the falsity of any statement contained in the record.
288
Legal professional privilege
(1) This
section applies if:
(a) under
this Act, a person requires a lawyer:
(i) to give information;
or
(ii) to produce a book; and
(b) giving the information would
involve disclosing, or the book contains, as the case may be, a privileged
communication made by, on behalf of or to the lawyer in his or her capacity as
a lawyer.
(2) The lawyer
is entitled to refuse to comply with the requirement unless:
(a) if the person to whom, or by or on
behalf of whom, the communication was made is a body corporate that is under
administration or is being wound up—the administrator or the liquidator of the
body; or
(b) otherwise—the person to whom, or
by or on behalf of whom, the communication was made;
consents to the lawyer complying with the requirement.
(3) If the lawyer so refuses, he or she must,
as soon as practicable, give to the person who made the requirement a written
notice setting out:
(a) if the lawyer knows the name and
address of the person to whom, or by or on behalf of whom, the communication
was made—that name and address; and
(b) if subparagraph (1)(a)(i)
applies and the communication was made in writing—sufficient particulars to
identify the document containing the communication; and
(c) if subparagraph (1)(a)(ii)
applies—sufficient particulars to identify the book, or the part of the book,
containing the communication.
(4) A person who intentionally or recklessly
contravenes this section is guilty of an offence punishable on conviction by a
fine not exceeding 30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
289
Powers of Court where non‑compliance with this Act
(1) This section applies if the Regulator is
satisfied that a person has, without reasonable excuse, failed to comply with a
requirement made under this Act.
(2) The Regulator may by writing certify the
failure to the Court.
(3) If the Regulator does so, the Court may
inquire into the case and may order the person to comply with the requirement
as specified in the order.
Division 8—Evidentiary use of certain material
290
Statements made at an examination: proceedings against examinee
Admissibility of statements made at examination
(1) Subject to this section, a statement that
a person makes at an examination of the person is admissible in evidence
against the person in a proceeding.
Self‑incrimination exception
(2) The statement is not admissible if:
(a) the proceeding is:
(i) a criminal proceeding;
or
(ii) a proceeding for the
imposition of a penalty;
other than a proceeding in
respect of the falsity of the statement; and
(b) the person is an individual who,
before making the statement, claimed that it might tend to incriminate him or
her or make him or her liable to a penalty.
Irrelevant statement exception
(3) The statement is not admissible if it is
not relevant to the proceeding and the person objects to the admission of
evidence of the statement.
Related statement exception
(4) The statement (the subject
statement) is not admissible if:
(a) it is qualified or explained by
some other statement made at the examination; and
(b) evidence of the other statement is
not tendered in the proceeding; and
(c) the person objects to the
admission of evidence of the subject statement.
Legal professional privilege exception
(5) The statement is not admissible if:
(a) it discloses matter in respect of
which the person could claim legal professional privilege in the proceeding if subsection (1)
did not apply in relation to the statement; and
(b) the person objects to the
admission of evidence of the statement.
Joint proceedings
(6) Subsection (1) applies in relation
to a proceeding against a person even if it is heard together with a proceeding
against another person.
Record is prima facie evidence
(7) If a written record of an examination of
a person is signed by the person under subsection 280(2) or authenticated in
any other prescribed manner, the record is, in a proceeding, prima facie evidence
of the statements it records.
Admissibility of other evidence
(8) This Part does not limit or affect the
admissibility in the proceeding of other evidence to statements made at the
examination.
291
Statements made at an examination: other proceedings
Admissibility of absent witness evidence
(1) If direct evidence by a person (the absent
witness) of a matter would be admissible in a proceeding, a statement
that the absent witness made at an examination of the absent witness and that
tends to establish that matter is admissible in the proceeding as evidence of
that matter in accordance with subsection (2).
Requirement for admissibility
(2) The statement is admissible:
(a) if it appears to the court or
tribunal that:
(i) the absent witness is
dead or is unfit, because of physical or mental incapacity, to attend as a
witness; or
(ii) the absent witness is
outside the State or Territory in which the proceeding is being heard and it is
not reasonably practicable to secure his or her attendance; or
(iii) all reasonable steps
have been taken to find the absent witness but he or she cannot be found; or
(b) if it does not so appear to the
court or tribunal—unless another party to the proceeding requires the party
tendering evidence of the statement to call the absent witness as a witness in
the proceeding and the tendering party does not so call the absent witness.
292
Weight of evidence admitted under section 291
(1) This section applies if evidence of a
statement made by a person at an examination of the person is admitted under
section 291 in a proceeding.
(2) In deciding how much weight (if any) to
give to the statement as evidence of a matter, regard is to be had to:
(a) how long after the matters to
which it related the statement was made; and
(b) any reason the person may have had
for concealing or misrepresenting a material matter; and
(c) any other circumstances from which
it is reasonable to draw an inference about how accurate the statement is.
(3) If the person is not called as a witness
in the proceeding:
(a) evidence that would, if the person
had been so called, have been admissible in the proceeding for the purpose of
destroying or supporting his or her credibility is so admissible; and
(b) evidence is admissible to show
that the statement is inconsistent with another statement that the person has
made at any time.
(4) However, evidence of a matter is not
admissible under this section if, had the person been called as a witness in
the proceeding and denied the matter in cross‑examination, evidence of the
matter would not have been admissible if adduced by the cross‑examining party.
293
Objection to admission of statements made at examination
Notice of intention to apply to admit evidence and
statements
(1) A party (the adducing party)
to a proceeding may, not less than 14 days before the first day of the hearing
of the proceeding, give to another party to the proceeding written notice that
the adducing party:
(a) will apply to have admitted in
evidence in the proceeding specified statements made at an examination; and
(b) for that purpose, will apply to
have evidence of those statements admitted in the proceeding.
Notice to set out etc. statements
(2) A notice under subsection (1) must
set out, or be accompanied by writing that sets out, the specified statements.
Notice of objection
(3) Within 14 days after a notice is given
under subsection (1), the other party may give to the adducing party a
written notice:
(a) stating that the other party
objects to specified statements being admitted in evidence in the proceeding;
and
(b) specifying, in relation to each of
those statements, the grounds of objection.
Extension of objection period
(4) The period prescribed by subsection (3)
may be extended by the court or tribunal or by agreement between the parties
concerned.
Notice etc. to be given to court or tribunal
(5) On receiving a notice given under subsection (3),
the adducing party must give to the court or tribunal a copy of:
(a) the notice under subsection (1)
and any writing that subsection (2) requires to accompany that notice; and
(b) the notice under subsection (3).
Action by court or tribunal
(6) If subsection (5) is complied with,
the court or tribunal may either:
(a) determine the objections as a
preliminary point before the hearing of the proceeding begins; or
(b) defer determination of the
objections until the hearing.
Right to object to admission of statement
(7) If a notice has been given in accordance
with subsections (1) and (2), the other party is not entitled to object at
the hearing of the proceeding to a statement specified in the notice being
admitted in evidence in the proceeding unless:
(a) the other party has, in accordance
with subsection (3), objected to the statement being so admitted; or
(b) the court or tribunal gives the
other party leave to object to the statement being so admitted.
294
Copies of, or extracts from, certain books
(1) A copy of, or an extract from, a book
relating to affairs of a superannuation entity is admissible in evidence in a
proceeding as if the copy were the original book, or the extract were the
relevant part of the original book, as the case may be, whether or not the copy
or extract was made under section 273.
(2) A copy of, or an extract from, a book is
not admissible in evidence under subsection (1) unless it is proved that
the copy or extract is a true copy of the book, or of the relevant part of the
book, as the case may be.
(3) For the purposes of subsection (2),
a person who has compared:
(a) a copy of a book with the book; or
(b) an extract from a book with the
relevant part of the book;
may give evidence, either orally or by an affidavit or
statutory declaration, that the copy or extract is a true copy of the book or
relevant part, as the case may be.
295
Report under Division 6
Subject to section 296, if a copy
of a report under Division 6 purports to be certified by the Regulator as
a true copy of such a report, the copy is admissible in a proceeding (other
than a criminal proceeding) as prima facie evidence of any facts or
matters that the report states an inspector to have found to exist.
296
Exceptions to admissibility of report
(1) This section applies if a party to a
proceeding tenders a copy of a report as evidence against another party.
(2) The copy is not admissible under section 295
in the proceeding as evidence against the other party unless the court or
tribunal is satisfied that:
(a) a copy of the report has been
given to the other party; and
(b) the other party, and the other
party’s lawyer, have had a reasonable opportunity to examine that copy and to
take its contents into account in preparing the other party’s case.
(3) Before or after the copy referred to in subsection (1)
is admitted in evidence, the other party may apply to cross‑examine, in
relation to the report, a specified person who, or 2 or more specified persons
each of whom:
(a) was concerned in preparing the
report or making a finding about a fact or matter that the report states the
inspector to have found to exist; or
(b) whether or not pursuant to a
requirement made under this Part, gave information, or produced a book, on the
basis of which, or on the basis of matters including which, such a finding was
made.
(4) The court or tribunal must grant an
application made under subsection (3) unless it considers that, in all the
circumstances, it is not appropriate to do so.
(5) If:
(a) the court or tribunal grants an
application or applications made under subsection (3); and
(b) a person to whom the application
or any of the applications relates, or 2 or more such persons, is or are
unavailable, or does not or do not attend, to be cross‑examined in relation to
the report; and
(c) the court or tribunal is of the
opinion that to admit the copy under section 295 in the proceeding as
evidence against the other party without the other party having the opportunity
so to cross‑examine the person or persons would unfairly prejudice the other
party;
the court or tribunal must refuse so to admit the copy, or
must treat the copy as not having been so admitted, as the case requires.
297
Material otherwise admissible
Nothing in this Division renders
evidence inadmissible in a proceeding in circumstances where it would have been
admissible in that proceeding if this Division had not been enacted.
Division 9—Miscellaneous
298
Regulator may cause civil proceeding to be begun
If, as a result of an investigation or
from a record of an examination (being an investigation or examination
conducted under this Part), it appears to the Regulator to be in the public
interest for a person to begin and carry on a proceeding for:
(a) the recovery of damages for fraud,
negligence, default, breach of duty, or other misconduct, committed in
connection with a matter to which the investigation or examination related; or
(b) recovery of property of the
person;
the Regulator:
(c) if the person is a body
corporate—may cause; or
(d) otherwise—may, with the person’s
written consent, cause:
such a proceeding to be begun and carried on in the
person’s name.
298A
Authorisation of members of staff
(1) The Regulator may authorise in writing a
member of staff of the Regulator, or a member of staff of the other Regulator,
for the purposes of a specified provision of this Act.
(2) The authorisation may be restricted to a
particular function or power under the provision.
299
Person complying with requirement not to incur liability to another person
A person who complies with a requirement
made of the person under this Part does not incur any liability to any other
person merely because of that compliance.
Part 25A—Tax file numbers
Division 1—Quotation of employee’s tax file number
299A
Employee may quote to employer
An employee may quote his or her tax
file number to his or her employer in connection with the operation or the
possible future operation of this Act and the other Superannuation Acts.
Note: Section 299P sets out the method of
quoting.
299B
Employer may inform trustee of tax file number
If:
(a) either:
(i) before the
commencement of this section, an employer made a contribution to an eligible
superannuation entity or a regulated exempt public sector superannuation scheme
for the benefit of an employee; or
(ii) after the commencement
of this section, an employer makes such a contribution; and
(b) after the commencement of this
section, the employee quotes or first quotes his or her tax file number to the
employer in connection with the operation or the possible future operation of
this Act and the other Superannuation Acts;
the employer may inform a trustee of the entity or scheme,
as the case may be, of the employee’s tax file number.
299C
Employer must inform trustee of tax file number
(1) If:
(a) an employee:
(i) quotes or first quotes
his or her tax file number after the commencement of this section to his or her
employer in connection with the operation or the possible future operation of
this Act and the other Superannuation Acts; or
(ii) quotes or first quotes
his or her tax file number on or after 1 July 2007 to his or her employer
in connection with the operation of Division 3 of Part VA of the Income
Tax Assessment Act 1936; and
(b) after the employee quotes or first
quotes the tax file number, the employer makes a contribution to an eligible
superannuation entity for the benefit of the employee; and
(c) the
employer has not previously informed a trustee of the entity of the employee’s
tax file number;
the employer must inform a trustee of the entity of the
employee’s tax file number before the required time (see subsection (2)).
Note: Division 3 of Part VA of the Income
Tax Assessment Act 1936 deals with quotation of tax file numbers by
recipients of eligible PAYG payments.
(2) The required time is:
(a) if the quotation or first
quotation of the tax file number takes place more than 14 days before the
employer makes the contribution—the end of the day on which the employer makes
the contribution; or
(b) in any other case—the end of the
14th day after the day on which the quotation or first quotation of the tax
file number takes place.
(3) The employer is guilty of an offence if
the employer contravenes subsection (1). This is an offence of strict
liability.
Penalty: 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
Division 2—Quotation, use and transfer of beneficiary’s tax file number
299D
Eligible superannuation entity or regulated exempt public sector superannuation
scheme beneficiary, or applicant, may quote tax file number
A beneficiary, or an applicant to become
a beneficiary, of an eligible superannuation entity or of a regulated exempt
public sector superannuation scheme may quote his or her tax file number to a
trustee of the entity or scheme in connection with the operation or the
possible future operation of this Act and the other Superannuation Acts.
Note: Section 299P sets out the method of
quoting.
299E
Trustee may request beneficiary’s or applicant’s tax file number
(1) A trustee of an eligible superannuation
entity or of a regulated exempt public sector superannuation scheme may, at any
time, request, in a manner approved by the Regulator, a beneficiary, or
an applicant to become a beneficiary, of the entity or scheme to quote his or
her tax file number to a trustee of the entity or scheme in connection with the
operation or the possible future operation of this Act and the other
Superannuation Acts.
No obligation to quote tax file number
(2) If a trustee requests a beneficiary or
applicant to quote his or her tax file number to a trustee, the beneficiary or
applicant is not obliged to comply with the request.
299F
Trustee must request person who is beneficiary at commencement to quote tax
file number
(1) Subject to subsection (3), if:
(a) a person is a beneficiary of an
eligible superannuation entity at the commencement of this section; and
(b) the person is not taken by section 299S
or 299T to have quoted his or her tax file number to a trustee of the entity at
or before that commencement;
each trustee must ensure that, before the required time
(see subsection (2)) in relation to the beneficiary, a request is made, in
a manner approved by the Regulator, to the person to quote his or her tax file
number to a trustee of the entity in connection with the operation or the
possible future operation of this Act or, if the request was not made before
the commencement of Schedule 3 to the Superannuation Contributions Tax
(Consequential Amendments) Act 1997, the operation or the possible future
operation of this Act and the Surcharge Acts.
Required time
(2) The required time in
relation to a beneficiary is the end of the 7th day after the day that is the
starting day in relation to the beneficiary.
Exception
(3) A trustee of the entity is not required
to ensure that a request is made if the person has already quoted his or her
tax file number to a trustee of the entity in connection with the operation or
the possible future operation of:
(a) if the quotation was given before
the commencement of Schedule 3 to the Superannuation Contributions Tax
(Consequential Amendments) Act 1997—this Act; or
(b) otherwise—this Act and the
Surcharge Acts.
(4) A trustee is guilty of an offence if the
trustee contravenes subsection (1).
Penalty: 100 penalty units.
(4A) A trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
No obligation to quote tax file number
(5) If a person requests another person to
quote his or her tax file number under this section, the other person is not
obliged to comply with the request.
Starting day—trustee required to give information to
beneficiary
(6) The starting day, in relation to a
beneficiary of an eligible superannuation entity a trustee of which is required
under Subdivision 2.4.2 or 2.4.3 of Division 2.4 of Part 2 of
the Superannuation Industry (Supervision) Regulations to give information to
the beneficiary, is the earlier of:
(a) the day referred to in whichever
of the following subparagraphs is applicable:
(i) if the trustee chooses
to act under this subparagraph in relation to the beneficiary—the day on which
the information referred to in Subdivision 2.4.2 of Division 2.4 of
Part 2 of those Regulations is first given to the beneficiary on or after
the day on which this section commences;
(ii) if the trustee chooses
to act under this subparagraph in relation to the beneficiary—the day on which
the information referred to in Subdivision 2.4.3 of Division 2.4 of
Part 2 of those Regulations is first given to the beneficiary on or after
the day on which this section commences;
(iii) if the trustee does not
choose to act under subparagraph (i) or (ii) in relation to the
beneficiary—the day on which information referred to in either of those
Subdivisions is first given to the beneficiary on or after the day on which
this section commences; or
(b) the last day of the period of one
year beginning on the day on which this section commences.
Starting day—trustee not required to give information
to beneficiary
(7) The starting day, in relation to a
beneficiary of an eligible superannuation entity a trustee of which is not
required, under Subdivision 2.4.2 or 2.4.3 of Division 2.4 of Part 2
of the Superannuation Industry (Supervision) Regulations to give information to
the beneficiary, is the day on which this section commences.
299G
Trustee must request person becoming beneficiary after commencement to quote
tax file number
(1) Subject to subsection (3), if:
(a) a person becomes a beneficiary of
an eligible superannuation entity after the commencement of this section; and
(b) the person has not quoted his or her
tax file number to a trustee of the entity in connection with the operation or
the possible future operation of this Act, or of this Act and the other
Superannuation Acts, by the time he or she becomes a beneficiary;
each trustee must ensure that, before the required time
(see subsection (2)), a request is made, in a manner approved by the
Regulator, to the person to quote his or her tax file number to a trustee of
the entity in connection with the operation or the possible future operation of
this Act or, if the request was not made before the commencement of Schedule 3
to the Superannuation Contributions Tax (Consequential Amendments) Act 1997,
the operation or possible future operation of this Act and the other
Superannuation Acts.
Required time
(2) The required time is the
end of the 30th day after the day on which the person becomes a beneficiary.
Exception
(3) A trustee of the entity is not required
to ensure that a request is made if the person has already quoted his or her
tax file number to a trustee of the entity in connection with the operation or
the possible future operation of:
(a) if the quotation was given before
the commencement of Schedule 3 to the Superannuation Contributions Tax
(Consequential Amendments) Act 1997—this Act; or
(b) otherwise—this Act and the other
Superannuation Acts.
(4) A trustee is guilty of an offence if the
trustee contravenes subsection (1).
Penalty: 100 penalty units.
(4A) A trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
No obligation to quote tax file number
(5) If a person requests another person to
quote his or her tax file number under this section, the other person is not
obliged to comply with the request.
299H
Use of tax file number for certain purposes—beneficiaries of eligible
superannuation entities
(1) This section applies if a person who is a
beneficiary of an eligible superannuation entity quotes his or her tax file
number to a trustee of the entity in connection with the operation or the
possible future operation of this Act and the other Superannuation Acts.
Obligation to record tax file number
(2) If the trustee, or the trustees, of the
entity do not already have a record of the tax file number, as soon as is
reasonably practicable after the quotation, the trustee to whom the quotation is
made must make a record of the number.
Obligation to retain and later destroy tax file number
(3) Each trustee of the entity must ensure
that:
(a) the record is retained until the
person ceases to be a beneficiary of the entity; and
(b) the record is destroyed as soon as
is reasonably practicable after the person ceases to be a beneficiary of the
entity.
Offences
(6) A trustee of the entity commits an
offence if a requirement of subsection (2) or (3) is contravened by the
trustee of the entity.
Penalty: 100 penalty units.
(7) A trustee of the entity commits an
offence if a requirement of subsection (2) or (3) is contravened by the
trustee of the entity. This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
299J
Use of tax file number for certain purposes—beneficiaries of regulated exempt
public sector superannuation scheme
(1) This section applies if a person who is a
beneficiary of a regulated exempt public sector superannuation scheme quotes
his or her tax file number to a trustee of the scheme in connection with the
operation or the possible future operation of this Act and the other
Superannuation Acts.
Trustee may record tax file number
(2) If the trustee, or the trustees, do not
already have a record of the tax file number, a trustee of the scheme may make
a record of it.
Obligation to retain and later destroy tax file number
(3) Each trustee of the scheme must ensure
that:
(a) the record is retained until the
person ceases to be a beneficiary of the scheme; and
(b) the record is destroyed as soon as
is reasonably practicable after the person ceases to be a beneficiary of the
scheme.
Offences
(6) A trustee of the scheme commits an
offence if a requirement of subsection (3) is contravened by the trustee.
Penalty: 100 penalty units.
(7) A trustee of the scheme commits an
offence if a requirement of subsection (3) is contravened by the trustee.
This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
299K
Use of tax file number for certain purposes—applicants to become beneficiaries
of eligible superannuation entities
(1) This section applies if a person who is
an applicant to become a beneficiary of an eligible superannuation entity
quotes his or her tax file number to a trustee of the entity in connection with
the operation or the possible future operation of this Act and the other
Superannuation Acts.
Obligation to record tax file number
(2) If the trustee, or the trustees, of the
entity do not already have a record of the tax file number, as soon as is
reasonably practicable after the quotation, the trustee to whom the quotation
is made must make a record of the number.
Obligation to retain and later destroy tax file number
(3) Each trustee of the entity must ensure
that:
(a) the record is retained until the
time (the last retention time) at which:
(i) if the person becomes
a beneficiary of the entity—the person ceases to be a beneficiary of the
entity; or
(ii) if not—the person
ceases to be an applicant; and
(b) the record is destroyed as soon as
is reasonably practicable after the last retention time.
Offences
(6) A trustee of the entity commits an
offence if a requirement of subsection (2) or (3) is contravened by the
trustee.
Penalty: 100 penalty units.
(7) A trustee of the entity commits an
offence if a requirement of subsection (2) or (3) is contravened by the
trustee. This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
299L
Use of tax file number for certain purposes—applicants to become beneficiaries
of regulated exempt public sector superannuation schemes
(1) This section applies if a person who is
an applicant to become a beneficiary of a regulated exempt public sector
superannuation scheme quotes his or her tax file number to a trustee of the
scheme in connection with the operation or the possible future operation of
this Act and the other Superannuation Acts.
Trustee may record tax file number
(2) If the trustee, or the trustees, do not
already have a record of the tax file number, a trustee of the scheme may make
a record of it.
Obligation to retain and later destroy tax file number
(3) Each trustee of the scheme must ensure
that:
(a) the record is retained until the
time (the last retention time) at which:
(i) if the person becomes
a beneficiary of the scheme—the person ceases to be a beneficiary of the
scheme; or
(ii) if not—the person
ceases to be an applicant; and
(b) the record is destroyed as soon as
is reasonably practicable after the last retention time.
Offences
(6) A trustee of the scheme commits an
offence if a requirement of subsection (3) is contravened by the trustee.
Penalty: 100 penalty units.
(7) A trustee of the scheme commits an
offence if a requirement of subsection (3) is contravened by the trustee.
This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
299LA
Use of tax file number to locate amounts
(1) This section applies if:
(a) a beneficiary of an eligible
superannuation entity, or of a regulated exempt public sector superannuation
scheme; or
(b) an applicant to become such a
beneficiary;
quotes his or her tax file number to a trustee of the
entity or scheme in connection with the operation, or the possible future
operation, of this Act and the other Superannuation Acts.
(2) A trustee of an eligible superannuation
entity, or of a regulated exempt public sector superannuation scheme, may,
subject to any conditions contained in the regulations, use tax file numbers
quoted as mentioned in subsection (1) in order to locate, in the records
or accounts of the entity or scheme, amounts held for the benefit of persons.
Note: Sections 8WA and 8WB of the Taxation
Administration Act 1953 contain offences for unauthorised use etc. of tax
file numbers.
(3) This section does not affect the
operation of subclauses 7.1 and 7.1A of National Privacy Principle 7 in
Schedule 3 to the Privacy Act 1988.
Note 1: Subclause 7.1 prohibits a trustee adopting a
tax file number of an individual as the trustee’s own identifier of the
individual, such as by using the tax file number as an account or membership
number.
Note 2: See also Division 4 of Part III of
the Privacy Act 1988 and the guidelines issued under that Division
concerning the collection, storage, use and security of tax file number
information.
299M
Trustee of eligible superannuation entity must inform RSA provider or other
trustee of tax file number for certain purposes
(1) This section applies if:
(a) there is an amount in an eligible
superannuation entity for the benefit of a beneficiary; and
(b) the beneficiary has quoted
(whether as a beneficiary or applicant) his or her tax file number to a trustee
of the entity in connection with the operation or the possible future operation
of this Act and the other Superannuation Acts.
Transfer of benefits to an RSA, another eligible
superannuation entity or to a regulated exempt public sector superannuation
scheme
(2) Subject to subsection (3), if a
trustee of the entity transfers any of the amount to an RSA, to another
eligible superannuation entity or to a regulated exempt public sector
superannuation scheme for the benefit of the beneficiary, the trustee must, at
the time of the transfer and in the manner approved by the Regulator, inform
the RSA provider or a trustee of the other eligible superannuation entity or of
the regulated exempt public sector superannuation scheme of the beneficiary’s
tax file number.
Exception
(3) Subsection (2) does not apply where
an amount is transferred to an RSA, to another eligible superannuation entity
or to a regulated exempt public superannuation scheme if, before the transfer,
the beneficiary gives the trustee a written statement requesting the trustee
not to inform any RSA provider or any other trustee of the beneficiary’s tax
file number.
(4) A trustee is guilty of an offence if the
trustee contravenes subsection (2).
Penalty: 100 penalty units.
(5) A trustee is guilty of an offence if the
trustee contravenes subsection (2). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
299N
Trustee of regulated exempt public sector superannuation scheme may inform RSA
provider or other trustee of tax file number for certain purposes
(1) This section applies if:
(a) there is an amount in a regulated
exempt public sector superannuation scheme for the benefit of a beneficiary;
and
(b) the beneficiary has quoted
(whether as a beneficiary or applicant) his or her tax file number to a trustee
of the scheme in connection with the operation or the possible future operation
of this Act and the other Superannuation Acts.
Transfer of benefits to an RSA another regulated exempt
public sector superannuation scheme or to an eligible superannuation entity
(2) Subject to subsection (3), if a
trustee of the scheme transfers any of the amount to an RSA, to another regulated
exempt public sector superannuation scheme or to an eligible superannuation
entity for the benefit of the beneficiary, the trustee may inform the RSA
provider or a trustee of the other regulated exempt public sector
superannuation scheme or of the eligible superannuation entity in the manner
approved by the Regulator of the beneficiary’s tax file number.
Exception
(3) Subsection (2) does not apply where
an amount is transferred to an RSA to another regulated exempt public sector
superannuation scheme or to an eligible superannuation entity if, before the
transfer, the beneficiary gives the trustee a written statement requesting the
trustee not to inform any RSA provider or any other trustee of the
beneficiary’s tax file number.
Offence
(4) If:
(a) a trustee (the first trustee)
of a regulated exempt public sector superannuation scheme (the first
scheme) intentionally informs an RSA provider or a trustee (the
second trustee) of another regulated exempt public sector
superannuation scheme or of an eligible superannuation entity of the tax file
number of a beneficiary of the first scheme; and
(b) the
first trustee knows that, because of subsection (3), the trustee is not
empowered by subsection (2) to inform the second trustee or the RSA
provider of that number;
the first trustee is guilty of an offence punishable on
conviction by a fine not exceeding 100 penalty units.
Division 3—Method of quotation of tax file numbers, including deemed
quotation
299P
Method of quoting tax file number
A person quotes his or her tax file
number to another person in connection with the operation or the possible
future operation of this Act and the other Superannuation Acts if:
(a) the person informs the other
person of the number in a manner approved by the Regulator or in the approved
form (as defined by section 388‑50 in Schedule 1 to the Taxation
Administration Act 1953); or
(b) the person is taken to have quoted
the number to the other person in connection with the operation or the possible
future operation of this Act and the other Superannuation Acts under any of the
following provisions of this Division.
299Q
Employee taken to have quoted to trustee where trustee informed by employer
If:
(a) an employee is a beneficiary, or
an applicant to become a beneficiary, of an eligible superannuation entity or
of a regulated exempt public sector superannuation scheme; and
(b) the employer informs a trustee of
an eligible superannuation entity or of a regulated exempt public sector
superannuation scheme of the employee’s tax file number in accordance with
section 299B or 299C;
the employee is:
(c) taken to have quoted the tax file
number to the trustee in connection with the operation or the possible future
operation of this Act and the other Superannuation Acts; and
(d) taken to have quoted the tax file
number at the time when the employer informs the trustee.
299R
Beneficiary or applicant taken to have quoted to RSA provider or trustee
(1) If a
trustee (the first trustee) of an eligible superannuation entity
(the first entity) informs an RSA provider or a trustee (the second
trustee) of another eligible superannuation entity or of a regulated
exempt public sector superannuation scheme of the tax file number of a
beneficiary of the first entity in accordance with subsection 299M(2), the
beneficiary is:
(a) taken to have quoted the tax file
number to the RSA provider or the second trustee in connection with the
operation or the possible future operation of this Act and the other
Superannuation Acts or the Retirement Savings Accounts Act 1997; and
(b) taken to have quoted that tax file
number at the time when the first trustee informs the RSA provider or the
second trustee.
(2) If a trustee (the first trustee)
of a regulated exempt public sector superannuation scheme (the first
scheme) informs an RSA provider or a trustee (the second trustee)
of another regulated exempt public sector superannuation scheme or of an
eligible superannuation entity of the tax file number of a beneficiary of the
first scheme in accordance with subsection 299N(2), the beneficiary is:
(a) taken to have quoted the tax file
number to the RSA provider or the second trustee in connection with the
operation or the possible future operation of this Act and the other
Superannuation Acts or the Retirement Savings Accounts Act 1997; and
(b) taken to have quoted that tax file
number at the time when the first trustee informs the RSA provider or the
second trustee.
299S
Person claiming benefit taken to have quoted to trustee where he or she
provided tax file number in connection with claim
(1) This section applies if:
(a) before the commencement of this
section, a person who considered that he or she was entitled to a benefit
applied to a trustee of an eligible superannuation entity for payment of the
benefit under section 248 or 252 and set out his or her tax file number in
the application; or
(b) after the commencement of this
section, a person who considers that he or she is entitled to a benefit applies
to a trustee of an eligible superannuation entity or of a regulated exempt
public sector superannuation scheme for payment of the benefit and sets out in
a manner approved by APRA his or her tax file number in the application.
(2) The beneficiary is:
(a) taken to have quoted the tax file
number to the trustee in connection with the operation or the possible future
operation of this Act and the other Superannuation Acts; and
(b) taken to have quoted that tax file
number at the time when the trustee received or receives the application.
299SA
Beneficiary taken to have quoted where Commissioner gives notice
(1) A beneficiary, or an applicant to become
a beneficiary, of an eligible superannuation entity or of a regulated exempt
public sector superannuation scheme is taken to have quoted his or her tax file
number to a trustee of the entity or scheme in connection with the operation or
the possible future operation of this Act and the other Superannuation Acts if
the Commissioner of Taxation gives to the trustee notice of the person’s tax
file number.
(2) The beneficiary or applicant is taken to
have quoted that tax file number at the time when the Commissioner of Taxation
gave the notice.
299T
Beneficiary taken to have quoted if he or she quoted for other purposes
If a beneficiary, or an applicant to
become a beneficiary, of an eligible superannuation entity or of a regulated
exempt public sector superannuation scheme has quoted his or her tax file
number to a trustee of the entity or scheme under:
(a) subsection 225(4) or 245(2) of
this Act, as in force immediately before its amendment by the Taxation Laws
Amendment Act (No. 2) 1996; or
(b) a provision of the Income Tax
Assessment Act 1936; or
(c) a provision of the repealed Part IIIA
of the Occupational Superannuation Standards Act 1987 (including a
provision as it continues to apply because of the Taxation Laws Amendment
(Superannuation) Act 1992);
then, for the purposes of this Act, as in force after the
commencement of this section, the beneficiary is:
(d) taken to have quoted the tax file
number to the trustee in connection with the operation or the possible future
operation of this Act and the other Superannuation Acts; and
(e) taken to have quoted that tax file
number to the trustee at the later of the time at which the quotation took place
and the commencement of this section.
Division 3A—Incorrect quotation of tax file number
299TA
Effect of mistaken quotation of tax file number
(1) The Commissioner may give the trustee of
an eligible superannuation entity or a regulated exempt public sector
superannuation scheme notice of the tax file number of a beneficiary of the
entity or scheme if:
(a) the trustee has made a record of a
number (the recorded TFN) the trustee believes to be the
tax file number of the beneficiary; and
(b) the Commissioner is satisfied that
the recorded TFN:
(i) has been cancelled or
withdrawn since it was quoted; or
(ii) is otherwise wrong;
and
(c) the Commissioner is satisfied that
the beneficiary has a tax file number.
(2) The beneficiary is taken to have quoted
his or her tax file number to the trustee in connection with the operation or
the possible future operation of this Act and the other Superannuation Acts at
a time if:
(a) the Commissioner gives the trustee
of an eligible superannuation entity or a regulated exempt public sector
superannuation scheme a notice under subsection (1); and
(b) had the recorded TFN been the tax
file number of the beneficiary, the beneficiary would have quoted his or her
tax file number to the trustee in that way at the time.
299TB
Effect of invalid quotation of tax file number
(1) The Commissioner may give the trustee of
an eligible superannuation entity or a regulated exempt public sector
superannuation scheme a notice under subsection (2) if:
(a) the trustee has made a record of a
number (the recorded TFN) the trustee believes to be the
tax file number of the beneficiary; and
(b) the Commissioner is satisfied that
the recorded TFN:
(i) has been cancelled or
withdrawn since it was quoted; or
(ii) is otherwise wrong; and
(c) the Commissioner is not satisfied
that the beneficiary has a tax file number.
(2) The notice must identify the beneficiary
and state that the Commissioner is not satisfied that the beneficiary has a tax
file number.
(3) If the Commissioner gives a notice under
subsection (2), the Commissioner must give a copy of the notice to the
beneficiary.
Division 4—Provision of tax file numbers in forms etc.
299U
Forms etc. may require tax file number
Election notice
(1) The approved form of written notice by
the trustee, or the trustees, of a fund for the purposes of subsection 19(4)
may require the notice to contain the tax file number of the fund.
Financial return
(2) The form of a financial return a copy of
which is required to be given by a superannuation entity to APRA under section 13
of the Financial Sector (Collection of Data) Act 2001 may require
the return to contain the entity’s tax file number.
Particulars of notice
(3) Particulars of a notice to a trustee of
an entity that are required by subsection 40(3) to be given to the Commissioner
of Taxation may be accompanied by a statement of the tax file number of the
entity.
Claims for benefits from eligible rollover fund
(6) The approved form of application for the
purposes of subsection 248(2) may require the tax file number of the applicant
to be set out in the application.
Claims for benefits from eligible transitional fund
(7) The approved form of application for the
purposes of section 252 may require the tax file number of the
applicant to be set out in the application.
Information to be given after establishment of entity
(8) The approved form for information
required to be given under subsection 254(1) may require the tax file number of
the entity to be given.
Notice to give information
(9) Information that may be required to be
given in relation to a superannuation entity under subsection 254(2) may
include the tax file number of the entity.
299V
Failure to quote tax file number
For the purposes of section 137.1
of the Criminal Code, a person does not omit a matter or thing from a
statement made to a SIS officer (within the meaning of section 301) merely
because the person has, in making the statement, failed to quote his or her tax
file number.
Division 5—General
299W
Definitions
In this Part, unless the contrary
intention appears:
eligible superannuation entity means a
regulated superannuation fund or an approved deposit fund.
regulated exempt public sector superannuation scheme means
an exempt public sector superannuation scheme in respect of which either of the
following applies:
(a) the trustee of the scheme is a
constitutional corporation;
(b) the sole or primary purpose of the
scheme is the provision of old‑age pensions.
Superannuation Acts means the following:
(a) this Act;
(b) the Superannuation
Contributions Tax (Assessment And Collection) Act 1997;
(c) the Superannuation
Contributions Tax (Members of Constitutionally Protected Superannuation Funds)
Assessment and Collection Act 1997;
(d) the Superannuation (Unclaimed
Money and Lost Members) Act 1999;
(e) the Termination Payments Tax
(Assessment and Collection) Act 1997.
Surcharge Acts means:
(a) the Superannuation
Contributions Tax (Assessment and Collection) Act 1997; and
(b) the Superannuation
Contributions Tax (Members of Constitutionally Protected Superannuation Funds)
Assessment and Collection Act 1997; and
(c) the Termination Payments Tax
(Assessment and Collection) Act 1997.
tax file number has the meaning given by
section 202A of the Income Tax Assessment Act 1936.
299X
State insurance
This Part does not apply with respect to
State insurance that does not extend beyond the limits of the State concerned.
299Y
Trustee of former regulated exempt public sector superannuation scheme to
destroy records of tax file numbers
(1) If an exempt public sector superannuation
scheme ceases to be a regulated exempt public sector superannuation scheme and
does not become an eligible superannuation entity, each trustee of the scheme
must ensure that, as soon as is reasonably practicable, all records of tax file
numbers of beneficiaries, or of applicants to become beneficiaries, of the
scheme that are kept by the trustee are destroyed.
(2) A trustee is guilty of an offence if the
trustee contravenes subsection (1).
Penalty: 100 penalty units.
(3) A trustee is guilty of an offence if the
trustee contravenes subsection (1). This is an offence of strict
liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
299Z
Transitional provisions
(1) Despite the amendments made to this Part
by Schedule 3 to the Superannuation Contributions Tax (Consequential
Amendments) Act 1997, this Part as it applied immediately before the
commencement of that Schedule continues to apply to:
(a) an employee who, before that
commencement, quoted his or her tax file number to his or her employer in
connection with the operation or the possible future operation of this Act; or
(b) a beneficiary, or an applicant to
become a beneficiary, of an eligible superannuation entity or of a regulated
exempt public sector superannuation scheme who, before that commencement,
quoted his or her tax file number to the trustee of the entity or scheme in
connection with the operation or the possible future operation of this Act;
as if those amendments had not been made.
(2) If:
(a) before the commencement of
Schedule 3 to the Superannuation Contributions Tax (Consequential
Amendments) Act 1997, or after that commencement but before 5 June
1998, an employee quoted his or her tax file number to his or her employer in
connection with the operation or the possible future operation of this Act; and
(b) the employer notifies the employee
in writing that the employer intends to inform the trustee of an eligible
superannuation entity or of a regulated exempt public sector superannuation
scheme of the employee’s tax file number unless the employee tells the
employer, within 30 days after the day on which the notification is received,
that the employee objects to the employer informing the trustee of the tax file
number; and
(c) the employee does not tell the
employer within that period that the employee objects to the employer informing
the trustee of the tax file number;
subsection (1) does not apply to the employee, and
the employee is taken to have quoted the tax file number to the employer in
connection with the operation or the possible future operation of this Act and
the other Superannuation Acts.
(3) If:
(a) before the commencement of
Schedule 3 to the Superannuation Contributions Tax (Consequential
Amendments) Act 1997, or after that commencement but before 5 June
1998, a beneficiary, or an applicant to become a beneficiary, of an eligible
superannuation entity or of a regulated exempt public sector superannuation
scheme has quoted his or her tax file number to the trustee of the entity or
scheme in connection with the operation or the possible future operation of
this Act; and
(b) the trustee notifies the
beneficiary or applicant in writing that the trustee intends to inform the
Commissioner of Taxation, the trustee of another such entity or scheme or an
RSA provider of the tax file number unless the beneficiary or applicant tells
the trustee, within 30 days after the day on which the notification is
received, that the beneficiary or applicant objects to the trustee informing
the Commissioner of Taxation, the trustee of the other entity or scheme or the
RSA provider, as the case may be, of the tax file number; and
(c) the beneficiary or applicant does
not tell the trustee within that period that the beneficiary or applicant
objects to the trustee informing the Commissioner of Taxation, the trustee of
the other entity or scheme or the RSA provider, as the case may be, of the tax
file number;
subsection (1) does not apply to
the beneficiary or applicant, and the beneficiary or applicant is taken to have
quoted the tax file number to the trustee in connection with the operation or
the possible future operation of this Act and the other Superannuation Acts.
Part 26—Offences relating to statements, records etc.
300
Object of Part
The object of this Part is to protect
the integrity of the system of supervision provided for by this Act by
penalising the making of false or misleading statements, the keeping of
incorrect records and the falsification or concealment of identity.
301
Interpretation
In this Part:
SIS officer means a person exercising powers
or performing functions under or in relation to this Act or the regulations.
statement made to an SIS officer means a
statement made to an SIS officer orally, in writing, in a data processing
device or in any other form and, without limiting the generality of the
foregoing, includes a statement:
(a) made in an application,
notification, return or other document made, prepared, given or purporting to
be made, prepared or given, under this Act or the regulations; or
(b) made in answer to a question asked
of a person under this Act or the regulations; or
(c) made in any information given, or
purporting to be given, under this Act or the regulations; or
(d) made in a document given to an SIS
officer otherwise than under this Act or the regulations;
but does not include a statement made in a document
produced under subsection 255(1) or 260(2) or section 269.
303
Incorrectly keeping records etc.
(1) Where:
(a) a person who is required under
this Act or the regulations to keep any accounts, accounting records or other
records keeps them in such a way that they do not correctly record and explain
the matters, transactions, acts or operations to which they relate; or
(b) a person who is required under
this Act or the regulations to make a record of any matter, transaction, act or
operation makes it in such a way that it does not correctly record the matter,
transaction, act or operation;
the person is guilty of an offence punishable on
conviction by a fine not exceeding 40 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(2) In a prosecution of a person for an
offence against subsection (1), it is a defence if the person proves that
the person:
(a) did not know; and
(b) could not reasonably be expected
to have known;
that:
(c) in the case of a prosecution for
an offence against subsection (1) by virtue of paragraph (a)—the
accounts, accounting records or other records to which the prosecution relates
did not correctly record and explain the matters, transactions, acts or
operations to which they relate; or
(d) in the case of a prosecution for
an offence against subsection (1) by virtue of paragraph (b)—the
record to which the prosecution relates did not correctly record the matter,
transaction, act or operation to which the record relates.
Note: A defendant bears a legal burden in relation
to the matters in subsection (2) (see section 13.4 of the Criminal
Code).
306
Incorrectly keeping or making records etc.
(1) If:
(a) a person is required under this
Act or the regulations to keep any accounts, accounting records or other
records; and
(b) the person keeps those accounts or
records in such a way that they do not correctly record and explain the
matters, transactions, acts or operations to which they relate;
the person is guilty of an offence punishable on
conviction by imprisonment for not longer than 12 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) If:
(a) a person is required under this
Act or the regulations to make a record of any matter, transaction, act or
operation; and
(b) the person makes such a record in
such a way that it does not correctly record the matter, transaction, act or
operation;
the person is guilty of an offence punishable on
conviction by imprisonment for not longer than 12 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
307
Incorrectly keeping records with intention of deceiving or misleading etc.
(1) A person is guilty of an offence if the
person:
(a) keeps any accounts, accounting
records or other records in such a way that they:
(i) do not correctly
record and explain the matters, transactions, acts or operations to which they
relate; or
(ii) are (whether in whole
or in part) illegible, indecipherable, incapable of identification or, if they
are kept in the form of a data processing device, incapable of being used to
reproduce information; or
(b) makes a record of any matter,
transaction, act or operation in such a way that it does not correctly record
the matter, transaction, act or operation; or
(c) alters, defaces, multilates,
falsifies, damages, removes, conceals or destroys any accounts, accounting
records or other records (whether in whole or in part); or
(d) does or omits to do any other act
or thing to any accounts, accounting records or other records;
with any of the following intentions (whether or not the
person had any other intention):
(e) deceiving or misleading the
Regulator or a particular SIS officer;
(f) hindering or obstructing the
Regulator or a particular SIS officer (otherwise than in the investigation of
an offence against, or arising out of, this Act or the regulations);
(g) hindering or obstructing the
investigation of an offence against, or arising out of, this Act or the
regulations;
(h) hindering, obstructing or
defeating the administration, execution or enforcement of this Act or the
regulations;
(i) defeating the purposes of this
Act or the regulations.
(2) The offence is punishable on conviction
by imprisonment for a term not exceeding 2 years.
308
Falsifying or concealing identity with intention of deceiving or misleading
etc.
(1) A person is guilty of an offence if the
person:
(a) falsifies or conceals the identity
of, or the address or location of a place of residence or business of, the
person or another person; or
(b) does or omits to do any act or
thing the doing or omission of which facilitates the falsification or
concealment of the identity of, or the address or location of a place of
residence or business of, the person or another person;
with any of the following intentions (whether or not the
person had any other intention):
(c) deceiving or misleading the
Regulator or a particular SIS officer;
(d) hindering or obstructing the
Regulator or a particular SIS officer (otherwise than in the investigation of
an offence against, or arising out of, this Act or the regulations);
(e) hindering or obstructing the
investigation of an offence against, or arising out of, this Act or the
regulations;
(f) hindering, obstructing or
defeating the administration, execution or enforcement of this Act or the regulations;
(g) defeating the purposes of this Act
or the regulations.
(2) The offence is punishable on conviction
by imprisonment for a term not exceeding 2 years.
Part 27—Powers of Court
309
Object of Part
The object of this Part is to set out rules
about the power of the courts to deal with matters arising under this Act.
310
Power to grant relief
Court may relieve liability for misconduct
(1) If, in a civil proceeding against a
superannuation official for official misconduct in a capacity as such a person,
it appears to the court that the official is or may be liable in respect of the
official misconduct, the court may, if subsection (2) is satisfied,
relieve the official either wholly or partly from the liability, on such terms
as the court thinks fit.
Basis for granting relief
(2) The court may only relieve the official
from the liability if it appears to the court that:
(a) the official has acted honestly;
and
(b) having regard to all the
circumstances of the case, including those connected with the official’s
appointment, he or she ought fairly to be excused for the official misconduct.
Withdrawal of case from jury
(3) If:
(a) the case is being tried by a judge
with a jury; and
(b) after hearing the evidence, the
judge is satisfied that relief ought to be given under subsection (1);
the judge may withdraw the case in whole or in part from
the jury and immediately direct judgement to be entered for the superannuation
official on such terms as to costs or otherwise as the judge thinks proper.
Where claim yet to be made
(4) If a superannuation official has reason
to believe that a claim will or might be made against the official in respect
of any official misconduct in a capacity as such a person:
(a) the official may apply to the Court
for relief; and
(b) the Court has the same power to
grant relief as it would have under subsection (1) if it had been a court
before which proceedings against the official for official misconduct had been
brought.
Definitions
(5) In this section:
officer, in relation to a corporate trustee,
means:
(a) a responsible officer or employee
of the corporate trustee; or
(b) a receiver, or receiver and
manager, of property of the body, where the property is beneficially owned by
the corporate trustee; or
(c) an administrator of the corporate
trustee; or
(d) a liquidator or provisional
liquidator of the corporate trustee; or
(e) a trustee or other person
administering a compromise or arrangement made between the corporate trustee
and another person or other persons.
official misconduct means negligence,
default, breach of trust or breach of duty.
superannuation official means:
(a) a trustee of a superannuation
entity; or
(b) an officer of a corporate trustee
of a superannuation entity; or
(c) an auditor of a superannuation
entity; or
(d) an actuary of a superannuation
entity.
Special meaning of employee
(6) The meaning of the expression employee,
when used in this section, is to be determined as if subsections 12(3) and (8)
of the Superannuation Guarantee (Administration) Act 1992 had not been
enacted. (Those subsections deem certain contractors to be employees.)
311
Power of Court to give directions with respect to meetings ordered by the Court
If, under this Act, the Court orders a
meeting to be convened, the Court may, subject to this Act, give such
directions with respect to the convening, holding or conduct of the meeting,
and such ancillary or consequential directions in relation to the meeting, as
it thinks fit.
312
Irregularities
Definitions
(1) In this section:
procedural irregularity includes:
(a) the absence of a quorum at a
meeting of:
(i) trustees of a
superannuation entity; or
(ii) directors of a
corporate trustee of a superannuation entity; or
(iii) beneficiaries in a
superannuation entity; or
(iv) members of a policy
committee of an employer‑sponsored fund; or
(b) a defect, irregularity or
deficiency of notice or time.
proceeding under this Act means any
proceeding, whether a legal proceeding or not, under this Act.
Effect of irregularities on proceedings
(2) A proceeding under this Act is not
invalidated because of any procedural irregularity unless the Court:
(a) is of the opinion that the
irregularity has caused or may cause substantial injustice that cannot be
remedied by any order of the Court; and
(b) by order declares the proceeding
to be invalid.
Effect of failure to give notice etc. on meetings
(3) Subject to subsection (4), none of
the following:
(a) a meeting held for the purposes of
this Act;
(b) a meeting of which notice is
required to be given in accordance with this Act;
(c) any proceeding at such a meeting;
is invalidated only because of the accidental omission to
give notice of the meeting or the non‑receipt by any person of notice of the
meeting.
Court may declare proceedings at meeting void
(4) In spite of subsection (3), the
Court may declare proceedings at the meeting to be void on application of:
(a) the person concerned; or
(b) a person entitled to attend the
meeting; or
(c) the Regulator.
Court may make certain orders
(5) Subject to the remainder of this section,
but without limiting any other provision of this Act, the Court may, on
application by any interested person, make all or any of the following orders
(either unconditionally or subject to any conditions imposed by the Court):
(a) an order declaring that:
(i) any act, matter or
thing purporting to have been done; or
(ii) any proceeding
purporting to have been instituted or taken;
under this Act or in relation to
a superannuation entity is not invalid because of any contravention of a
provision of:
(iii) this Act; or
(iv) the governing rules of
a superannuation entity;
(b) an order relieving a person in
whole or in part from any civil liability in respect of a contravention mentioned
in paragraph (a);
(c) an order:
(i) extending the period
for doing any act, matter or thing or for instituting or taking any proceeding
under this Act or in relation to a superannuation entity (including extending a
period if it ended before the application for the order was made); or
(ii) shortening the period
for doing such an act, matter or thing or for instituting or taking such a
proceeding.
Consequential and ancillary orders
(6) The Court may also make any consequential
or ancillary order that it thinks fit.
Orders where offence
(7) An order may be made under paragraph (5)(a)
or (b) even though the contravention referred to in the paragraph concerned
resulted in the commission of an offence.
Restrictions on making orders
(8) The Court must not make an order under
this section unless it is satisfied:
(a) in the case of an order referred
to in paragraph (5)(a):
(i) that the act, matter
or thing, or the proceeding, referred to in that paragraph is essentially of a
procedural nature; or
(ii) that the person or
persons concerned in or party to the contravention or failure acted honestly;
or
(iii) that it is in the
public interest that the order be made; and
(b) in the case of an order referred
to in paragraph (5)(b)—that the person subject to the civil liability
concerned acted honestly; and
(c) in every case—that no substantial
injustice has been or is likely to be caused to any person.
313
Power of Court to prohibit payment or transfer of money or property
Court’s power to protect interests of certain creditors
etc.
(1) If:
(a) any of the following applies:
(i) an investigation is
being carried out under this Act in relation to an act or omission by a person
(the contravening person), being an act or omission that
constitutes or may constitute a contravention of this Act; or
(ii) a prosecution has
begun against a person (also the contravening person) for a
contravention of this Act or under the Financial Sector (Collection of Data)
Act 2001 in connection with a superannuation entity; or
(iii) a civil proceeding has
begun against a person (also the contravening person) under this
Act; and
(b) the
Regulator or a person (an aggrieved person) to whom the
contravening person is liable, or may become liable:
(i) to pay money (whether
in respect of a debt, by way of damages or compensation or otherwise); or
(ii) to account for
property;
applies to the Court; and
(c) the Court considers it necessary
or desirable to do so for the purpose of protecting the interests of an
aggrieved person;
the Court may make one or more of the orders specified in subsection (2).
Court’s power to protect the interests of beneficiaries
(1A) If:
(a) the Regulator is of the opinion
that it is necessary for the Court to make one or more of the orders specified in
subsection (2) to protect the interests of any or all of the beneficiaries
of a superannuation entity; and
(b) the Regulator applies to the Court
for such an order in relation to a trustee of the entity; and
(c) the Court considers it necessary
or desirable to protect the interests of any or all of the beneficiaries;
the Court may make one or more of the orders specified in subsection (2).
Any reference to the contravening person is a reference
to the trustee
(1B) For the purposes of subsection (1A), subsection (2)
has effect as if any reference to the contravening person were a reference to
the trustee.
Orders that Court may make
(2) The orders that the Court may make are:
(a) an order prohibiting a person who
is indebted to the contravening person or to an associate of the contravening
person from making a payment in total or partial discharge of the debt to:
(i) the contravening
person or associate; or
(ii) another person at the
direction or request of the contravening person or associate;
(b) an
order prohibiting a person holding money or property on behalf of the
contravening person or of an associate of the contravening person from:
(i) paying all or any of
the money; or
(ii) transferring or
otherwise parting with possession of the property;
to:
(iii) the contravening
person or associate; or
(iv) another person at the
direction or request of the contravening person or associate;
(c) an order prohibiting the taking or
sending out of Australia by a person of money of the contravening person or of
an associate of the contravening person;
(d) an order prohibiting the taking,
sending or transfer by a person of property of the contravening person, or of
an associate of the contravening person from a place in Australia to a place
outside Australia (including the transfer of interests from a register in
Australia to a register outside Australia);
(e) an order appointing:
(i) if the contravening
person is an individual—a receiver or trustee, having such powers as the Court
orders, of the property or of part of the property of that person; or
(ii) if the contravening
person is a body corporate—a receiver or receiver and manager, having such
powers as the Court orders, of the property or of part of the property of that
person;
(f) if the contravening person is an
individual—an order requiring that person to deliver up to the Court his or her
passport and such other documents as the Court thinks fit;
(g) if the contravening person is an
individual—an order prohibiting that person from leaving Australia without the consent of the Court.
Property in (2)(d) or (e)
(3) A reference in paragraph (2)(d) or
(e) to property of a person includes a reference to property that the person
holds otherwise than as sole beneficial owner, for example:
(a) as trustee for, as nominee for, or
otherwise on behalf of or on account of, another person; or
(b) in a fiduciary capacity.
Purpose of subsection (3)
(4) Subsection (3) is to avoid doubt, is
not to limit the generality of anything in subsection (1) and is not to
affect by implication the interpretation of any other provision of this Act.
Absolute or conditional orders
(5) An order made under subsection (1)
or (1A) prohibiting conduct may prohibit the conduct either absolutely or
subject to conditions.
Interim orders
(6) If an application is made to the Court
for an order under subsection (1) or (1A), the Court may, if in the
opinion of the Court it is desirable to do so, before considering the
application, grant an interim order (being an order of the kind applied for
that is expressed to have effect pending the determination of the application).
Damages undertakings
(7) On an application under subsection (1)
or (1A), the Court must not require the applicant or any other person, as a
condition of granting an interim order under subsection (6), to give an
undertaking as to damages.
Further orders
(8) If the Court has made an order under this
section on a person’s application, the Court may, on application by that person
or by any person affected by the order, make a further order discharging or
varying the first‑mentioned order.
Period of order
(9) An order made under subsection (1),
(1A) or (6) may be expressed to operate for a specified period or until the
order is discharged by a further order under this section.
Court’s other powers not affected
(10) This section does not affect the powers
that the Court has apart from this section.
Section subject to Bankruptcy Act
(11) This section has effect subject to the
Bankruptcy Act 1966.
Offence to contravene orders
(12) A person who intentionally or recklessly
contravenes an order by the Court under this section that is applicable to the
person is guilty of an offence punishable on conviction by imprisonment for a
term of not more than 6 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
314
Court may order the disclosure of information or the publication of
advertisements—contravention of provisions relating to issue of superannuation
interests etc.
(1) If a person (the alleged offender)
has engaged, is engaging or is proposing to engage in conduct in contravention
of Part 19, the Court may, on the Regulator’s application, make an order
or orders under either or both of subsections (2) and (3).
(2) The Court may make an order:
(a) requiring the alleged offender, or
a person involved in the contravention, to disclose information to:
(i) the public; or
(ii) a specified person; or
(iii) persons included in a
specified class of persons; and
(b) specifying the information, or the
kind of information, that is to be disclosed, being information:
(i) in the possession of
the person to whom the order is directed; or
(ii) to which that person
has access; and
(c) specifying the way in which it is
to be disclosed.
(3) The Court may make an order:
(a) requiring the alleged offender, or
a person involved in the contravention, to publish advertisements and pay the
expenses; and
(b) specifying the terms of the
advertisements, or the way in which the terms of the advertisements are to be
determined; and
(c) specifying the way in which, and
times at which, the advertisements are to be published.
(4) A person who intentionally or recklessly
contravenes an order under subsection (2) or (3) is guilty of an offence
punishable on conviction by imprisonment for a term of not more than 6 months.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
315
Injunctions
Restraining injunctions
(1) If a person (the perpetrator)
has engaged, is engaging or is proposing to engage, in conduct that
constituted, constitutes or would constitute:
(a) a contravention of this Act, a
condition imposed on an RSE licence or a direction given under this Act by APRA
or the Regulator; or
(b) attempting to contravene this Act,
a condition imposed on an RSE licence or a direction given under this Act by
APRA or the Regulator; or
(c) aiding, abetting, counselling or
procuring a person to contravene this Act, a condition imposed on an RSE licence
or a direction given under this Act by APRA or the Regulator; or
(d) inducing or attempting to induce,
whether by threats, promises or otherwise, a person to contravene this Act, a
condition imposed on an RSE licence or a direction given under this Act by APRA
or the Regulator; or
(e) being in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of this Act, a condition imposed on an RSE licence or a direction given under
this Act by APRA or the Regulator; or
(f) conspiring
with others to contravene this Act, a condition imposed on an RSE licence or a
direction given under this Act by APRA or the Regulator;
the Court may grant an injunction in accordance with subsection (2).
Nature of injunction
(2) If granted, the injunction:
(a) is to restrain the perpetrator
from engaging in the conduct; and
(b) if in the opinion of the Court it
is desirable to do so, may also require that person to do any act or thing.
The Court may only grant the injunction on the application
of the Regulator, or of a person whose interests have been, are, or would be,
affected by the conduct and may grant it on such terms as the Court thinks
appropriate.
Performance injunctions
(3) If a person (the unwilling person)
has refused or failed, is refusing or failing, or is proposing to refuse or
fail, to do an act or thing that the person is required by this Act, a
condition imposed on an RSE licence or a direction given under this Act by APRA
or the Regulator to do, the Court may, on the application of:
(a) the Regulator; or
(b) any
person whose interests have been, are or would be affected by the refusal or
failure to do that act or thing;
grant an injunction, on such terms as the Court thinks
appropriate, requiring the unwilling person to do that act or thing.
Consent injunctions
(4) If an application for an injunction under
subsection (1) or (3) has been made, the Court may, if the Court
determines it to be appropriate, grant an injunction by consent of all the
parties to the proceedings, whether or not the Court is satisfied that that
subsection applies.
Interim injunctions
(5) If in the opinion of the Court it is
desirable to do so, the Court may grant an interim injunction pending
determination of an application under subsection (1).
Variation or discharge of injunctions
(6) The Court may discharge or vary an
injunction granted under this section.
Restraining injunctions
(7) The power of the Court to grant an
injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
Court that the person intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the first‑mentioned
person engages in conduct of that kind.
Performance injunctions
(8) The power
of the Court to grant an injunction requiring a person to do an act or thing
may be exercised:
(a) whether or not it appears to the
Court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that act or thing; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the first‑mentioned
person refuses or fails to do that act or thing.
Damages undertakings
(9) If the Regulator applies to the Court for
the grant of an injunction under this section, the Court must not require the
applicant or any other person, as a condition of granting an interim
injunction, to give an undertaking as to damages.
Section 313 orders
(10) In proceedings under this section against
a person the Court may make an order under section 313 in respect of the
person.
Damages orders
(11) If the Court has power under this section
to grant an injunction restraining a person from engaging in particular
conduct, or requiring a person to do a particular act or thing, the Court may,
either in addition to or in substitution for the grant of the injunction, order
that person to pay damages to any other person.
This section extends Federal Court’s powers
(11A) The powers this section gives the Court are
additional to (and do not limit) it’s other powers.
Definition
(12) In this section:
do an act or thing includes:
(a) give effect to a determination
made by the Superannuation Complaints Tribunal; or
(b) reconsider a matter in accordance
with the directions of the Superannuation Complaints Tribunal.
316
Effect of sections 313, 314 and 315
Nothing in any one of section 313,
314 or 315 limits the generality of anything else in any other of those
sections.
317
Power of Court to punish for contempt of court
Nothing in a provision of this Act that
provides:
(a) that a person must not contravene
an order of the Court; or
(b) that
a person who contravenes an order of the Court contravenes a provision of this
Act or is guilty of an offence;
affects the powers of the Court in relation to the
punishment of contempts of the Court.
318
Court may resolve transitional difficulties
(1) If any difficulty:
(a) arises in applying a provision of
this Act in relation to a particular case in relation to which, if this Act had
not been enacted, a provision of another law corresponding to the first‑mentioned
provision would have applied; or
(b) arises, because of a provision of
this Act, in applying, in relation to a particular case, another provision of
this Act or a provision of another law corresponding to another provision of
this Act;
the Court may, on the application of an interested person,
make such order as it thinks proper to remove the difficulty.
(2) An order under this section has effect
despite anything in a provision of this Act.
(3) This section has effect subject to the
Constitution.
Part 28—Proceedings
319
Object of Part
The object of this Part is to set out
various rules about court proceedings.
320
Power of Regulator to intervene in proceedings
(1) The Regulator may intervene in any
proceeding relating to a matter arising under this Act.
(2) If the Regulator intervenes in a
proceeding referred to in subsection (1), the Regulator is taken to be a
party to the proceeding and, subject to this Act, has all the rights, duties
and liabilities of such a party.
(3) Without limiting the generality of subsection (2),
the Regulator may appear and be represented in any proceeding in which he or
she wishes to intervene under subsection (1):
(a) by a member of the staff of the
Regulator; or
(b) by an individual to whom, or by an
officer or employee of a person or body to whom or to which, the Regulator has
delegated its functions and powers under this Act or such of those functions
and powers as relate to a matter to which the proceeding relates; or
(c) by solicitor or counsel.
321
Civil proceedings not to be stayed
No civil proceedings under this Act are
to be stayed merely because the proceeding discloses, or arises out of, the
commission of an offence.
322
Standard of proof
Where subsection (2) applies
(1) Subsection (2) applies if, in
proceedings other than proceedings for an offence, it is necessary to
establish, or for the Court to be satisfied, for any purpose relating to a
matter arising under this Act, that:
(a) a person has contravened a
provision of this Act; or
(b) default has been made in complying
with a provision of this Act; or
(c) an act or omission was unlawful
under a provision of this Act; or
(d) a person has been in any way, by
act or omission, directly or indirectly, knowingly concerned in or party to a
contravention of, or a default in complying with, a provision of this Act.
Matters to be established etc. on balance of
probabilities
(2) It is sufficient if the matter referred
to in paragraph (1)(a), (b), (c) or (d) is established, or the Court is so
satisfied, as the case may be, on the balance of probabilities.
323
Relief from civil liability for contravention of certain provisions
Proceedings to which this section applies
(1) This section applies to:
(a) eligible proceedings (within the
meaning of section 221); and
(b) proceedings under subsection
55(3).
Defences
(2) Subject to subsection (4), in
proceedings against a person (the defendant) in respect of a
contravention, it is a defence if the defendant establishes:
(a) that the contravention was due to
reasonable mistake; or
(b) that the contravention was due to
reasonable reliance on information supplied by another person; or
(c) that:
(i) the contravention was
due to:
(A) the act
or default of another person; or
(B) an
accident; or
(C) some
other cause beyond the defendant’s control; and
(ii) the defendant took
reasonable precautions and exercised due diligence to avoid the contravention.
Meaning of another person
(3) For the purposes of the application of subsection (2)
to the defendant, a reference to another person does not include a person who
was, at the time when the contravention occurred:
(a) in any case—a servant or agent of
the defendant; or
(b) if the defendant is a body
corporate—a director, servant or agent of the defendant.
Notice to be given about reliance on defence
(4) If a defence provided by subsection (2)
involves an allegation that a contravention was due to:
(a) reliance on information supplied
by another person; or
(b) the act or default of another
person;
the defendant is not entitled to rely on that defence
unless:
(c) the court grants leave; or
(d) both:
(i) the defendant has
served on the person by whom the proceedings were instituted a written notice
giving such information:
(A) that
would identify, or assist in the identification of, the other person; and
(B) as was
then in the defendant’s possession; and
(ii) that notice is served
not later than 7 days before the day on which the hearing of the proceedings
begins.
324
Evidence of contravention
For the
purposes of this Act, a certificate that:
(a) purports to be signed by the
Registrar or other proper officer of an Australian court; and
(b) states that:
(i) a person was convicted
by that court on a specified day of a specified offence; or
(ii) a person charged
before that court with a specified offence was, on a specified day, found in
that court to have committed the offence but that the court did not proceed to
convict the person of the offence;
is, unless it is proved that the conviction was quashed or
set aside, or that the finding was set aside or reversed, as the case may be,
conclusive evidence:
(c) if subparagraph (b)(i)
applies—that the person was convicted of the offence on that day; and
(d) if the offence was constituted by
a contravention of a provision of a law—that the person contravened that
provision.
324A
Time for instituting criminal proceedings
Despite anything in any other law,
proceedings for an offence against a provision of this Act may be instituted
within the period of 5 years after the act or omission alleged to constitute
the offence or, with the Minister’s consent, at any later time.
325
Vesting of property
(1) If an order is made by a court under this
Act vesting property in a person:
(a) subject to subsections (2)
and (3), the property immediately vests in law and in equity in the person
named in the order by force of this Act; and
(b) if the order is made by a
court—the person who applied for the order must, within 7 days after the
entering of the order, lodge an office copy of the order with such person (if
any) as is specified in the order.
(2) If:
(a) the property is of a kind whose
transfer or transmission may be registered under a law of the Commonwealth, of
a State or of a Territory; and
(b) that
law enables the registration of such an order;
the property does not vest in that person at law until the
requirements of the law referred to in paragraph (a) have been complied
with.
(3) If:
(a) the property is of a kind whose
transfer or transmission may be registered under a law of the Commonwealth, of
a State or of a Territory; and
(b) that law enables the person named
in the order to be registered as the owner of that property;
the property does not vest in that person at law until the
requirements of the law referred to in paragraph (b) have been complied
with.
Part 29—Exemptions and modifications
326
Object of Part
(1) The object of this Part is to empower the
Regulator to grant exemptions from, and make modifications of, certain
provisions of this Act and the regulations.
327
Interpretation
In this Part:
modifiable provision means any of the
following:
(a) a provision of Part 2A, 2B or
3;
(aa) section 35C (except so far as
it applies in relation to self‑managed superannuation funds);
(b) section 36;
(c) section 54;
(d) subsection 63(7B), (7C) or (7D);
(e) a provision of Part 9;
(g) a provision of Part 19 or 24;
(h) a provision of any regulations
made for the purposes of a provision referred to in paragraphs (a) to (g).
328
Regulator’s powers of exemption—modifiable provisions
(1) The Regulator may, in writing, exempt
from compliance with any or all of the modifiable provisions:
(a) a particular person or a class of
persons; or
(b) a particular group of individual
trustees or a class of groups of individual trustees.
(2) An exemption that applies to a particular
person or group is not a legislative instrument.
(3) Otherwise, an exemption is a legislative
instrument.
330
Regulator’s powers of exemption—general issues
(1) An exemption under this Part may be made
either generally or as otherwise provided in the exemption.
(2) An exemption under this Part may be
unconditional or subject to conditions specified in the exemption.
(3) Without limiting this section, an
exemption under this Part may relate to a particular superannuation entity or
class of superannuation entities.
331
Enforcement of conditions to which exemption is subject
(1) A person must not, without reasonable
excuse, contravene a condition of an exemption under this Part.
Penalty: 5 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
(2) If a person has contravened a condition
of an exemption under this Part, the Court may, on the application of the
Regulator, order the person to comply with the condition.
332
Regulator’s powers of modification—modifiable provisions
(1) The Regulator may, in writing, declare
that a modifiable provision is to have effect, as if it were modified as
specified in the declaration, in relation to:
(a) a particular person or class of
persons; or
(b) a particular group of individual
trustees or a class of groups of individual trustees.
(2) A declaration that applies to a
particular person or group is not a legislative instrument.
(3) Otherwise, a declaration is a legislative
instrument.
334
Regulator’s powers of modification—general issues
(1) A declaration under this Part may have
effect either generally or as otherwise provided in the declaration.
(2) Without limiting this section, a
declaration under this Part may relate to a particular superannuation entity or
class of superannuation entities.
335
Variation and revocation of exemptions and modifications
The Regulator may, in writing, vary or
revoke an exemption or declaration under this Part.
336
Notice of exemptions and modifications
If the Regulator:
(a) makes an exemption or modification
under this Part that applies to a particular person or a particular group of
individual trustees; or
(b) varies or revokes such an
exemption or modification;
the Regulator must also notify the person or group in
writing of the making, variation or revocation.
Part 29A—Protections in relation to information
Division 1—Protection for whistleblowers
336A
Disclosures qualifying for whistleblower protection
(1) This section applies to a disclosure of
information by a person (the discloser) who is, in relation to a
superannuation entity, any of the following:
(a) a trustee of the superannuation
entity;
(b) an officer of a body corporate
that is a trustee, custodian or investment manager of the superannuation
entity;
(c) an employee of an individual
referred to in paragraph (a) or a body corporate referred to in
paragraph (b);
(d) a person who has a contract for
the supply of services or goods to an individual referred to in
paragraph (a) or a body corporate referred to in paragraph (b);
(e) an employee of a person referred
to in paragraph (d).
(2) The disclosure of the information by the
discloser qualifies for protection under this Division if:
(a) the disclosure is made to any of
the following:
(i) the Regulator;
(ii) the actuary or auditor
of the superannuation entity;
(iii) an individual who is a
trustee of the superannuation entity;
(iv) a director of a body
corporate that is the trustee of the superannuation entity;
(v) a person authorised by
the trustee or trustees of the superannuation entity to receive disclosures of
that kind; and
(b) the discloser informs the person
to whom the disclosure is made of the discloser’s name before making the
disclosure; and
(c) both:
(i) the information
concerns misconduct, or an improper state of affairs or circumstances, in
relation to the superannuation entity or a trustee of the entity; and
(ii) the discloser
considers that the information may assist a person referred to in
paragraph (a) to perform the person’s functions in relation to the
superannuation entity or trustee; and
(d) the discloser makes the disclosure
in good faith.
(3) In this section, officer
has the same meaning as it has in the Corporations Act 2001.
336B
Whistleblower protection for disclosures that qualify
(1) If a person makes a disclosure that
qualifies for protection under this Division:
(a) the person is not subject to any
civil or criminal liability for making the disclosure; and
(b) no contractual or other remedy may
be enforced, and no contractual or other right may be exercised, against the
person on the basis of the disclosure.
(2) Without limiting subsection (1):
(a) the person has qualified privilege
in respect of the disclosure; and
(b) a contract to which the person is
a party must not be terminated on the basis that the disclosure constitutes a
breach of the contract.
(3) Without limiting paragraphs (1)(b)
and (2)(b), if a court is satisfied that:
(a) a person (the employee)
is employed in a particular position under a contract of employment with
another person (the employer); and
(b) the employee makes a disclosure
that qualifies for protection under this Division; and
(c) the employer purports to terminate
the contract of employment on the basis of the disclosure;
the court may order that the employee be reinstated in
that position or a position at a comparable level.
(4) If an individual makes a disclosure of
information that qualifies for protection under this Division, the information
is not admissible in evidence against the individual in criminal proceedings or
in proceedings for the imposition of a penalty, other than proceedings in
respect of the falsity of the information.
336C
Victimisation of whistleblowers prohibited
Actually causing detriment to another person
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct causes any
detriment to another person; and
(c) the person intends that his or her
conduct cause detriment to the other person; and
(d) the person engages in his or her
conduct because the other person made a disclosure that qualifies for
protection under this Division.
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
Threatening to cause detriment to another person
(2) A person (the first person)
commits an offence if:
(a) the first person makes a threat to
another person (the second person) to cause any detriment to the
second person or to a third person; and
(b) the first person:
(i) intends the second
person to fear that the threat will be carried out; or
(ii) is reckless as to
causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat
because a person:
(i) made a disclosure that
qualifies for protection under this Division; or
(ii) may make a disclosure
that would qualify for protection under this Division.
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
Threats
(3) For the
purposes of subsection (2), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In a prosecution for an offence under
subsection (2), it is not necessary to prove that the person threatened
actually feared that the threat would be carried out.
Definition
(5) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to do an act.
336D
Right to compensation
If:
(a) a person:
(i) commits an offence
under subsection 336C(1) or (2); or
(ii) commits an offence
under Part 2.4 of the Criminal Code in relation to subsection
336C(1) or (2); and
(b) another person suffers damage
because of the conduct constituting the offence or because of the
contravention;
the person is liable to compensate the other person for
the damage.
336E
Confidentiality requirement for company, company officers and employees and
auditors
(1) A person (the offender)
commits an offence under this subsection if:
(a) a person (the discloser)
makes a disclosure of information that qualifies for protection under this
Division; and
(b) the disclosure is made to:
(i) the auditor of, or a
member of an audit team conducting an audit of, the superannuation entity; or
(ii) an individual who is a
trustee of the superannuation entity; or
(iii) a director of a body
corporate that is the trustee, custodian or investment manager of the
superannuation entity; or
(iv) a person authorised by
the trustee or trustees of the superannuation entity to receive disclosures of
that kind; and
(c) the offender is:
(i) the auditor of, or a
member of an audit team conducting an audit of, the superannuation entity; or
(ii) an individual who is
the trustee of the superannuation entity; or
(iii) a director of a body
corporate that is the trustee, custodian or investment manager of the
superannuation entity; or
(iv) a person authorised by
the trustee or trustees of the superannuation entity to receive disclosures of
that kind; or
(v) an officer or employee
of a body corporate that is the trustee, custodian or investment manager of the
superannuation entity; and
(d) the offender discloses any of the
following information (the confidential information):
(i) the information
referred to in paragraph (a);
(ii) the identity of the
discloser;
(iii) information that is
likely to lead to the identification of the discloser; and
(e) the confidential information is
information that the offender obtained directly or indirectly because of the
disclosure referred to in paragraph (a); and
(f) either:
(i) the offender is the
person to whom the disclosure referred to in paragraph (a) is made; or
(ii) the offender is a
person to whom the confidential information is disclosed in contravention of
this section and the offender knows that the disclosure of the confidential
information to the offender was unlawful or made in breach of confidence; and
(g) the disclosure referred to in
paragraph (d) is not authorised under subsection (2).
Penalty: 25 penalty units.
(2) The disclosure referred to in
paragraph (1)(d) is authorised under this subsection if:
(a) it is made to APRA; or
(b) it is made to a member of the
Australian Federal Police (within the meaning of the Australian Federal
Police Act 1979); or
(c) it is made to someone else with
the consent of the discloser.
(3) In this section, officer
has the same meaning as it has in the Corporations Act 2001.
Division 2—Self‑incrimination
336F
Self‑incrimination
(1) A person is not excused from complying
with a requirement under this Act or the Financial Sector (Collection of
Data) Act 2001 to give information to APRA on the ground that doing so
would tend to incriminate the person or make the person liable to a penalty.
(2) However, if the person is an individual,
the information given by the individual in compliance with the requirement is
not admissible in evidence against the individual in criminal proceedings or in
proceedings for the imposition of a penalty, other than proceedings in respect
of the falsity of the information, if:
(a) before giving the information, the
individual claims that giving the information might tend to incriminate the
individual or make the individual liable to a penalty; and
(b) giving the information might in
fact tend to incriminate the individual or make the individual liable to a
penalty.
(3) This section does not apply in relation
to a requirement under section 129 or 130 or under Part 25.
Note 1: See section 130B in relation to
requirements under section 129 or 130.
Note 2: See section 287 in relation to
requirements under Part 25.
Part 30—Miscellaneous
337
Object of Part
The object of this Part is to set out
miscellaneous rules about various matters relating to the operation of this
Act.
337A
Trustee may give effect to award made under arbitration agreement
If:
(a) the Superannuation Complaints
Tribunal made an award in an arbitration conducted under an arbitration
agreement entered into under the former Part 7A of the Superannuation
(Resolution of Complaints) Act 1993; and
(b) the award is still in force;
nothing in this Act or any other law of the Commonwealth,
in any law of a State or Territory (whether written or unwritten) or in the
governing rules of a fund, scheme or trust prevents a trustee of a fund, scheme
or trust from giving effect to the award.
338
Conduct by directors, servants and agents
State of mind of body corporate
(1) If, in proceedings for an offence against
this Act, it is necessary to establish the state of mind of a body corporate in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a director, servant or agent of the body corporate within the scope of actual
or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
Conduct of director, servant or agent
(2) Subject to subsection (3), any
conduct engaged in on behalf of a body corporate by a director, servant or
agent of the body corporate within the scope of his or her actual or apparent
authority is taken, for the purposes of a prosecution for an offence against
this Act, to have been engaged in also by the body corporate.
Exception to (2)
(3) Subsection (2) does not apply if the
body corporate establishes that it took reasonable precautions and exercised
due diligence to avoid the conduct.
State of mind of individual
(4) If, in proceedings for an offence against
this Act, it is necessary to establish the state of mind of an individual in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a servant or agent of the individual within the scope of actual or apparent
authority; and
(b) that the servant or agent had the
state of mind.
Conduct of servant or agent
(5) Subject to subsection (6), any
conduct engaged in on behalf of an individual by a servant or agent of the
individual within the scope of his or her actual or apparent authority is
taken, for the purposes of a prosecution for an offence against this Act, to
have been engaged in also by the individual.
Exception to (5)
(6) Subsection (5) does not apply if the
individual establishes that he or she took reasonable precautions and exercised
due diligence to avoid the conduct.
No imprisonment in (4) or (5) cases
(7) If:
(a) an individual is convicted of an
offence; and
(b) the individual would not have been
convicted of the offence if subsections (4) and (5) had not been enacted;
the individual is not liable to imprisonment for that
offence.
Reference to state of mind
(8) A reference in subsection (1) or (4)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
Reference to director
(9) A reference in this section to a director
of a body corporate includes a reference to a constituent member of, or to a
member of a board or other group of persons administering or managing the
affairs of, a body corporate incorporated for a public purpose by a law of the
Commonwealth, of a State or of a Territory.
Reference to engaging in conduct
(10) A reference in this section to engaging in
conduct includes a reference to failing or refusing to engage in conduct.
Reference to offence against this Act
(11) A reference in this section to an offence
against this Act includes a reference to:
(a) an offence created by the
regulations; and
(b) an offence created by section 6
of the Crimes Act 1914, being an offence that relates to this Act or the
regulations.
Part 2.5 of the Criminal Code not to apply
(12) Part 2.5 of the Criminal Code
does not apply in relation to an offence against this Act.
338A
Liability of trustees required to ensure thing occurs
A person who is a member of a group of
individual trustees is not liable under any offence of strict liability or
civil penalty provision of this Act or the regulations in respect of any contravention
resulting from a failure by the person to ensure that a particular thing occurs
if the person proves that he or she:
(a) made all inquiries (if any) that
were reasonable in the circumstances; and
(b) after doing so, believed on
reasonable grounds that his or her obligations were being complied with.
Note: In a prosecution for an offence of strict
liability against a provision of this Act or the regulations, a defendant bears
a legal burden in relation to the matters in this section (see section 13.4
of the Criminal Code).
339
Conviction does not relieve defendant from civil liability
(1) A person is not relieved from any
liability to any other person merely because the person has been convicted of
an offence against this Act.
(2) This section does not apply in relation
to a contravention of a civil penalty provision.
(3) In this section:
offence against this Act has the same meaning
as in section 338.
341
Civil immunity where defendant was complying with this Act
A person is not liable in a civil action
or civil proceeding in relation to an act done in fulfilment of an obligation
imposed by this Act or the regulations.
342
Pre‑1 July 88 funding credits and debits
(1) A trustee of a fund may apply to APRA for
a pre‑1 July 88 funding credit.
(2) If an application is made for a pre‑1 July
88 funding credit, APRA must give a written notice to the applicant granting a
pre‑1 July 88 funding credit of a specified amount if APRA is satisfied
that:
(a) the amount consists of, or is the
total of, amounts that, under the regulations, are treated as pre‑1 July
88 funding amounts; and
(b) paragraph 23(jaa) or section 23FC
of the Income Tax Assessment Act, as in force immediately before the
commencement of the Taxation Laws Amendment Act (No. 2) 1989, would
have applied to the fund in relation to the 1987‑88 year of income, if the
amendments made by that last‑mentioned Act had not been made.
(3) An application:
(a) must be in the approved form; and
(b) must be made on or before the day
ascertained in accordance with the regulations; and
(c) must contain such information
relating to the fund as is required by the form to be provided; and
(d) must be accompanied by:
(i) such certificates and
other documents as the form requires; and
(ii) the prescribed
application fee.
(4) If:
(a) a prescribed event has occurred
(whether before or after the commencement of this section) in relation to a
fund, being an event that relates to:
(i) the membership of the
fund; or
(ii) benefits provided by
the fund; and
(b) a trustee of the fund fails to
notify APRA of the event within the time and in the manner prescribed;
APRA must give written notice to a trustee of the fund
accordingly.
(5) Regulations made for the purposes of paragraph (4)(b)
may:
(a) require a notification to be
accompanied by such information as is prescribed; and
(b) enable APRA to grant an extension
of time for lodging a notification.
(6) If:
(a) an event prescribed for the
purposes of paragraph (4)(a) has occurred (whether before or after the
commencement of this section) in relation to a fund; and
(b) a trustee of the fund notifies
APRA of the event as and when required by regulations made for the purposes of paragraph (4)(b);
and
(c) APRA is satisfied that, in
accordance with the regulations, a pre‑1 July 88 funding debit of a
particular amount should arise in relation to the fund;
APRA may give to a trustee of the fund a written notice
granting the trustee of the fund a pre‑1 July 88 funding debit of that
amount.
(7) The regulations may make provision for
and in relation to the transfer of pre‑1 July 88 funding credits between
funds.
(8) Without limiting the generality of subsection (7),
the regulations made for the purposes of that subsection must make provision
for:
(a) the giving by APRA of a notice
approving the transfer of a pre‑1 July 88 funding credit of a fund to
another fund; and
(b) the revocation of such a notice;
and
(c) requiring notification of such a
revocation and of the reasons for the revocation.
(9) If:
(a) APRA has, under subsection (2)
or (6), given a notice to a trustee of a fund; and
(b) APRA, after considering
information that was not previously considered by APRA, ceases to be satisfied
as mentioned in the subsection concerned;
APRA must give written notice to a trustee of the fund
revoking the notice.
(10) If APRA refuses an application under subsection (1),
APRA must give written notice to the applicant of the refusal.
(11) A notice under subsection (9) or (10)
must set out the reasons for the revocation or refusal, as the case requires.
(12) APRA must give to the Commissioner of
Taxation particulars of all notices given under this section or under
regulations made for the purposes of subsection (7).
(13) In this section:
fund means a superannuation fund.
343
Rules against perpetuities not to apply to superannuation entity
The rules of law relating to
perpetuities do not apply, and are taken never to have applied, to the trusts
of any superannuation entity, whether the entity was established before, or is
established after, the commencement of this section.
344
Review of certain decisions
Request for review
(1) A person who is affected by a reviewable
decision of the Regulator may, if dissatisfied with the decision, request the
Regulator to reconsider the decision.
How request must be made
(2) The request must be made by written
notice given to the Regulator within the period of 21 days after the day on
which the person first receives notice of the decision, or within such further
period as the Regulator allows.
Request must set out reasons
(3) The request must set out the reasons for
making the request.
Regulator to reconsider decision
(4) Upon receipt of the request, the
Regulator must reconsider the decision and may, subject to subsection (5),
confirm or revoke the decision or vary the decision in such manner as the
Regulator thinks fit.
Deemed confirmation of decision if delay
(5) If the Regulator does not confirm, revoke
or vary a decision before the end of the period of 60 days after the day on
which the Regulator received the request under subsection (1) to
reconsider the decision, the Regulator is taken, at the end of that period, to
have confirmed the decision under subsection (4).
Notice of Regulator’s action
(6) If the Regulator confirms, revokes or
varies a decision before the end of the period referred to in subsection (5),
the Regulator must give written notice to the person telling the person:
(a) the result of the reconsideration
of the decision; and
(b) the reasons for confirming,
varying or revoking the decision, as the case may be.
Notice to Commissioner of Taxation
(7) If the Regulator gives a notice to a
person under subsection (6) telling the person that a decision under
section 40 has been revoked or varied, the Regulator must give to the
Commissioner of Taxation particulars of the notice.
AAT review of Regulator’s decisions
(8) Applications may be made to the
Administrative Appeals Tribunal for review of decisions of the Regulator that
have been confirmed or varied under subsection (4).
Period for making certain AAT applications
(9) If a decision is taken to be confirmed
because of subsection (5), section 29 of the Administrative
Appeals Tribunal Act 1975 applies as if the prescribed time for making
application for review of the decision were the period of 28 days beginning on
the day on which the decision is taken to be confirmed.
Section 41 of AAT Act
(10) If a request is made under subsection (1)
in respect of a reviewable decision, section 41 of the Administrative
Appeals Tribunal Act 1975 applies as if the making of the request were the
making of an application to the Administrative Appeals Tribunal for a review of
that decision.
Only trustees affected by certain reviewable decisions
(12) For the purposes of this section and
section 345, a person is taken not to be affected by a reviewable decision
(other than a reviewable decision covered by paragraph (dd), (de), (df),
(dg), (dl), (dm), (dn), (q), (qa), (qb), (r), (ra), (rb), (s) or (t) of the
definition of reviewable decision in section 10) unless the
person is a trustee of a superannuation entity that is affected by the
decision.
345
Statements to accompany notification of decisions
(1) If a written notice is given to a person
affected by a reviewable decision telling the person that the reviewable
decision has been made, that notice is to include a statement to the effect
that:
(a) the person may, if dissatisfied
with the decision, seek a reconsideration of the decision by the Regulator in
accordance with subsection 344(1); and
(b) the person may, subject to the Administrative
Appeals Tribunal Act 1975, if dissatisfied with a decision made by the
Regulator upon that reconsideration confirming or varying the first‑mentioned
decision, make application to the Administrative Appeals Tribunal for review of
the decision so confirmed or varied.
(2) If the Regulator confirms or varies a
reviewable decision under subsection 344(4) and gives to the person written
notice of the confirmation or variation of the decision, that notice is to
include a statement to the effect that the person may, subject to the Administrative
Appeals Tribunal Act 1975, if dissatisfied with the decision so confirmed
or varied, make application to the Administrative Appeals Tribunal for review
of the decision.
(3) A failure to comply with the requirements
of subsections (1) and (2) in relation to a reviewable decision or a
decision under subsection 344(4) does not affect the validity of that decision.
347
How information may be given to the Commissioner of Taxation
If a provision of this Act requires or
authorises the Regulator to give information to the Commissioner of Taxation,
the information may be given by means of a data processing device.
347A
The Regulator may collect statistical information
Collection
(1) The Regulator may collect such
statistical information about superannuation entities as the Regulator
considers appropriate.
Survey forms
(2) For the purposes of subsection (1),
the Regulator may, by writing, approve one or more forms (the survey
forms).
Instructions in survey forms
(3) A survey form must contain instructions
about the following matters:
(a) filling up and supply of the
particulars specified in the form;
(b) giving
the filled‑up form to a person (the authorised recipient)
specified in the instructions.
The authorised recipient must be the Regulator or a
delegate of the Regulator.
Notice to trustee about participation in the
Regulator’s statistics program
(4) The Regulator may, by written notice
given to a trustee of a superannuation entity, determine that the trustee is a
participant, or trustees of the entity are participants in the Regulator’s
statistics program. The notice must set out the effect of subsections (5)
and (6).
Obligations of participants in the Regulator’s
statistics program
(5) At any time when a determination under subsection (4)
is in force in relation to a trustee of a superannuation entity, the Regulator
may give the trustee a survey form. In that event, the trustee must:
(a) fill up and supply, in accordance
with the instructions contained in the form, the particulars specified in the
form; and
(b) give the filled‑up form to the
authorised recipient in accordance with those instructions.
(6) A trustee is guilty of an offence if the
trustee contravenes subsection (5).
Penalty: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Survey form and determination may be given at the same
time
(7) For the purposes of subsection (5),
if a determination under subsection (4) is given to a trustee of a
superannuation entity at the same time as a survey form, the determination is
taken to have been in force at the time when the survey form was given to the
trustee.
Survey period
(8) The particulars specified in a survey
form must relate to one or more specified periods (the survey periods).
The instructions contained in a survey form must not require a trustee to give
the filled‑up form to the authorised recipient before the 28th day after:
(a) the end of the survey period; or
(b) if there is more than one survey
period—the end of the most recent survey period.
Extension of lodgment period—particular survey forms
(9) The Regulator may extend the period
within which a particular filled‑up form is to be given to the authorised
recipient.
Extension of lodgment period—general
(10) The Regulator may, by notice published in
the Gazette, extend the period within which a specified class of filled‑up
survey forms is to be given to the authorised recipient.
Delegation
(11) The Regulator may, by writing, delegate to
a person any or all of the Commissioner’s powers under this section.
Section does not limit other powers
(12) This
section does not, by implication, limit:
(a) any other provision of this Act;
or
(b) anything in the Census and
Statistics Act 1905.
(13) In this section:
Regulator means the Commissioner of Taxation.
348
The Regulator may publish statistical information
(1) Subject to subsection (2), the
Regulator may arrange for the publication of statistical information relating
to superannuation entities or relating to payments made to persons.
(2) The Regulator must not arrange for the
publication of statistical information in a manner that enables the
identification of:
(a) a superannuation entity; or
(b) a person.
(3) The Regulator may determine that fees are
to be paid in respect of the supply of publications in accordance with this
section.
(4) In this section:
Regulator means the Commissioner of Taxation.
349
This Act and the regulations to be subject to certain superannuation orders
This Act and the regulations apply in
relation to a regulated superannuation fund subject to the effect of any
superannuation order within the meaning of the Australian Federal Police Act
1979 or the Crimes (Superannuation Benefits) Act 1989 that is made
in respect of any member of the fund.
349A
Payment out of a fund in accordance with the Bankruptcy Act 1966
If a member of an approved deposit fund
or of a regulated superannuation fund becomes a bankrupt, within the meaning of
subsection 5(1) of the Bankruptcy Act 1966, nothing in this Act or the
regulations prevents a trustee of the fund from paying to the trustee in
bankruptcy an amount out of the fund that is property divisible amongst the
member’s creditors, within the meaning of section 116 of the Bankruptcy
Act 1966.
350
Concurrent operation of State/Territory laws
It is the intention of the Parliament
that this Act is not to apply to the exclusion of a law of a State or Territory
to the extent that that law is capable of operating concurrently with this Act.
353
Regulations
(1) The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act;
and without limiting the generality of the above, may make
regulations:
(c) prescribing fees in respect of any
matter under this Act; and
(d) prescribing penalties not
exceeding 10 penalty units in respect of offences against the regulations.
(2) Without limiting the generality of subsection (1),
the regulations may make provision for and in relation to the keeping of one or
more registers by the Regulator, where the registers relate to matters arising
under this Act or the regulations. In particular, the regulations may make
provision for the following:
(a) a register to be kept in such form
and manner as the Regulator directs;
(b) persons to inspect a register;
(c) persons to obtain information
contained in a register;
(d) fees to be charged for such an
inspection or for providing such information.
Part 32—Additional transitional provisions—tax file numbers
381
Object of Part
The object of this Part is to allow a
member of a fund, scheme or trust to quote his or her tax file number to the
trustee before the commencement of Parts 22 and 24. Those Parts commence
on 1 July 1994.
Note: Part 22 was repealed by the Superannuation
(Unclaimed Money and Lost Members) Consequential and Transitional Act 1999.
382
Quotation of tax file number
(1) A member or beneficiary of a fund, scheme
or trust may quote his or her tax file number to the trustee of the fund,
scheme or trust in connection with the possibility of the future operation of
section 225 or Part 24, or both.
(2) Subsection (1) ceases to have effect
on 1 July 1994.
383
Pre‑1 July 1994 quotation of tax file number to be treated as if made
under provisions commencing on 1 July 1994
(1) This section applies if a beneficiary or
member of a fund, scheme or trust quotes his or her tax file number to the
trustee under section 382.
(2) This Act has effect, after 30 June 1994, as if the beneficiary or member had quoted that tax file number to the
trustee under subsections 225(4) and 245(2), as in force immediately before
their repeal by the Taxation Laws Amendment Act (No. 2) 1996,
immediately after the beginning of 1 July 1994.
384
Pre‑1 July 1994 quotation of tax file number—request for quotation, or
recording, of number not prohibited by the Taxation Administration Act 1953
(1) Section 8WA of the Taxation
Administration Act 1953 does not prohibit a person from requesting another
person to quote the other person’s tax file number if provision is made by
section 382 of this Act for the quotation of the number.
(2) If a beneficiary or member of a fund,
scheme or trust quotes his or her tax file number to the trustee under section 382
of this Act, section 8WB of the Taxation Administration Act 1953 does
not prohibit the trustee from:
(a) recording that tax file number or
maintaining such a record; or
(b) using that tax file number in a
manner connecting it with the identity of the beneficiary or member;
in connection with the possibility that the trustee may be
required to exercise powers or perform functions under or in relation to Part 22
or 24, or both, of this Act on or after 1 July 1994.
(3) Subsections (1) and (2) cease to
have effect on 1 July 1994.
385
Pre‑1 July 1994 quotation of tax file number—objects of tax file number
system
(1) Section 202 of the Income Tax
Assessment Act 1936 has effect as if the facilitation of the future
administration of Parts 22 and 24 of this Act were an object of Part VA of that Act.
(2) Subsection (1) ceases to have effect
on 1 July 1994.