An Act to make provision for the supervision of certain entities engaged in the superannuation industry, and for related purposes
This Act may be cited as the Superannuation Industry (Supervision) Act 1993.
(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.
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.
The Act contains provisions dealing with the following matters:
Part No. | Matter dealt with |
1 | interpretation |
2 | approval of trustees |
2A | licensing of trustees and groups of individual trustees |
2B | registrable superannuation entities |
3 | operating standards for funds and trusts |
4 | lodgment of annual returns by trustees of superannuation entities |
5 | notices about complying fund status |
6 | governing rules of funds and trusts |
7 | rules applying only to regulated superannuation funds |
8 | in‑house asset rules applying to regulated superannuation funds |
9 | equal representation of employers and members in relation to employer‑sponsored funds |
10 | rules applying only to approved deposit funds |
11 | rules applying only to pooled superannuation trusts |
12 | statutory duties of trustees of superannuation entities |
13 | accounts of superannuation entities |
14 | other provisions relating to funds and trusts |
15 | standards for trustees, custodians and investment managers of superannuation entities |
16 | actuaries and auditors of superannuation entities |
17 | suspension or removal of trustees of superannuation entities |
18 | amalgamation of funds |
19 | rules about dealing with superannuation interests in public offer entities |
21 | civil and criminal consequences of serious breaches of the Act |
23 | financial assistance to funds that suffer loss as a result of fraud or theft |
24 | facility to pay benefits to eligible rollover funds |
24A | transitional provisions relating to pre‑1 July 1995 automatic rollovers of benefits between funds |
25 | monitoring and investigating superannuation entities |
25A | tax file numbers |
26 | offences relating to statements and records |
27 | powers of courts |
28 | judicial and other proceedings under the Act |
29 | exemption and modification provisions |
30 | miscellaneous provisions |
31 | transition to scheme provided for in the Act |
32 | additional transitional provisions relating to tax file numbers |
(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):
(i) Parts 2 to 2B;
(ii) Parts 4 to 5;
(iii) section 60A;
(iv) Part 7 (other than section 64A);
(v) Parts 8 to 11;
(vi) Part 12 (other than sections 101, 103 and 105);
(vii) Parts 13 to 16;
(viii) Part 17;
(ix) Part 21;
(x) Parts 23 to 24A;
(xi) Division 3 of Part 25;
(xii) Part 25A;
(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) section 64A; 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 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, 24 and 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).
(2) Powers and duties are also conferred by Parts 1, 25 (other than Division 3) and 26 27, 28, 29 (other than section 332), 30 and 31 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.
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.
This Act extends to all the external Territories.
(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.
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
(1) In this Act, unless the contrary intention appears:
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 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:
(i) an approved trustee; or
(ii) 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 that will be taken by section 27D of the Income Tax Assessment Act to be expended out of eligible termination payments within the meaning of that section; 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.
approved trustee means a constitutional corporation in relation to which an approval under section 26 is in force.
APRA means the Australian Prudential Regulation Authority.
asset means any form of property and, to avoid doubt, includes money (whether Australian currency or currency of another country).
ASIC means the Australian Securities and Investments Commission.
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 an adopted child, a step‑child or an ex‑nuptial child of the person.
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 (within the meaning of subsection 66(5)) (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.
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 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.
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 under Schedule 1B to the Workplace Relations Act 1996.
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.
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 a resident superannuation fund within the meaning of subsection 6E(1) of the Income Tax Assessment Act 1936.
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
(ba) a decision of APRA under subsection 24(2) to treat an application as having been withdrawn; or
(c) a decision of APRA under subsection 26(2) refusing an application for approval; or
(d) a decision of APRA under subsection 26(3) to specify conditions in an instrument of approval; or
(da) a decision of APRA under subsection 27A(4) to treat an application as having been withdrawn; or
(db) a decision of APRA under section 27B or 27C to vary the approval of a trustee; or
(dc) a decision of APRA under section 27B to refuse to vary the approval of a trustee; 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
(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
(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
(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 a trustee’s subsection 92(5) approval; or
(n) a decision of APRA under section 92 revoking an arrangement approval or a trustee’s subsection 92(5) 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
(pa) a decision of the Regulator under subsection 120A(1), (2) or (3) to disqualify an individual; or
(pb) a decision of the Regulator under subsection 120A(5) refusing to revoke the disqualification of an individual; or
(q) a decision of APRA under subparagraph 123(2)(b)(ii) or (3)(c)(ii); 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
(u) a decision of the Regulator under section 141; or
(z) a decision of the Regulator under section 328 to make an exemption; or
(za) a decision of the Regulator under section 329 to make an exemption; or
(zb) a decision of the Regulator under section 332 to make a declaration; or
(zc) a decision of the Regulator under section 333 to make a declaration; or
(zd) a decision of the Regulator under section 335 to revoke an exemption or declaration; 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.
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, in relation to a person, includes another person who, although not legally married to the person, lives with the person on a genuine domestic basis as the husband or wife of the person.
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 has the same meaning as in Part IX of the Income Tax Assessment Act.
value means market value, and includes amount.
written custody requirements means the written requirements referred to in subparagraph 26(1)(b)(iii).
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.
(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.
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.
(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.
(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.
Maximum 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.
Maximum 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.
(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.
Maximum 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.
Maximum 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.
Maximum 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.
(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).
(1) 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 determines in writing.
(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(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.
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.
(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).
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.
(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.
(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.
(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.
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.
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.
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.
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 approved trustee of the fund or 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) another individual having such a relationship to the individual or to his or her spouse or former spouse because of adoption or remarriage; or
(c) the spouse or former spouse of the individual, or of an individual referred to in paragraph (a) or (b).
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.
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.
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.
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.
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.
(1) The object of this Part is to provide for constitutional corporations to be approved as trustees for the purposes of this Act.
(2) This Part operates concurrently with Part 2A (which is about licensing of trustees and groups of individual trustees). The significance of the approval or licensing of trustees, or groups of individual trustees, is as follows:
(a) a fund cannot be an approved deposit fund unless it is maintained by an approved trustee or an RSE licensee that is a constitutional corporation (the other requirements of the definition of approved deposit fund in section 10 must also be satisfied);
(b) the trustee of a public offer entity must not engage in conduct to which section 152 applies unless the trustee is an approved trustee or an RSE licensee that is a constitutional corporation (other requirements also apply before that conduct may be engaged in);
(c) a person must not be, or act as, the trustee of a superannuation fund with fewer than 5 members (other than a self managed superannuation fund) if the person is required by subsection 121A(1) to be, but is not, an approved trustee or an RSE licensee that is a constitutional corporation;
(d) APRA may suspend or remove a trustee of a superannuation fund with fewer than 5 members (other than a self managed superannuation fund) if the trustee is required by subsection 121A(1) to be, but is not, an approved trustee or an RSE licensee that is a constitutional corporation;
(e) a person may contravene subsection 29J(1) if the person is not an approved trustee or does not hold an RSE licence.
Note: See Part 2A for information about RSE licences.
(1) In this Part:
relevant entity means:
(a) a public offer entity; or
(b) an approved deposit fund.
(2) A reference in section 27A, 27B, 27C, 27D, 27E, 28 or 29 to an approval includes a reference to an approval as varied under section 27B or 27C.
(1) A constitutional corporation may apply to APRA for an approval as a trustee for the purposes of this Act.
(1A) However, an application must not be made during the licensing transition period.
(2) An application must:
(a) be in the approved form; and
(b) contain the information required by the form; and
(c) be accompanied by an application fee of the prescribed amount.
(1) If APRA needs further information to decide the application for approval, APRA may request the applicant, in writing, to supply APRA with such further information as is specified in the request within such time as is specified in the request.
(2) If, without reasonable excuse, the applicant refuses or fails to comply with the request, APRA may decide to treat the application as having been withdrawn.
(3) If APRA decides, under subsection (2), to treat the application as having been withdrawn, APRA must, as soon as practicable after so deciding, inform the applicant in writing to that effect.
(1) Subject to this section, APRA must decide an application for approval within 60 days after receiving it.
(2) If APRA thinks that it will take longer to decide the application, APRA may extend, by up to 60 days, the period for deciding it.
(3) An extension must be made by written notice given to the applicant within 60 days after APRA receives the application.
(4) If APRA makes an extension, APRA must decide the application within the extended period.
(5) If APRA has not decided the application by the end of the day by which APRA is required to decide it, APRA is taken to have decided, at the end of that day, to refuse the application.
(1) APRA must, in writing, approve an applicant as a trustee for the purposes of this Act if, and only if:
(a) APRA is satisfied that the applicant can be relied on to perform, in a proper manner, the duties of trustee of any relevant entity of which the applicant is or becomes the trustee; and
(b) at least one of the following subparagraphs applies:
(i) APRA is satisfied that the value of the net tangible assets of the applicant is not less than the amount prescribed by the regulations;
(ii) APRA is satisfied that the applicant is entitled to the benefit of an approved guarantee of an amount not less than the amount prescribed by the regulations, being a guarantee in respect of the applicant’s duties as trustee of each relevant entity of which the applicant is, or is proposing to become, the trustee;
(iia) APRA is satisfied that the applicant passes the test set out in subsection (1A);
(iii) the applicant has agreed to comply with the written requirements given to the applicant by APRA before the granting of the approval, being requirements relating to the custody of the assets of a relevant entity or relevant entities of which the applicant is or becomes the trustee; and
(c) the applicant’s application was made before the start of the licensing transition period.
(1A) For the purposes of subparagraph (1)(b)(iia), the applicant passes the test set out in this subsection if:
(a) the applicant is entitled to the benefit of an approved guarantee, being a guarantee in respect of the applicant’s duties as trustee of each relevant entity of which the applicant is, or is proposing to become, the trustee; and
(b) the sum of the amount of the approved guarantee and the value of the net tangible assets of the applicant is not less than the amount prescribed by the regulations.
(2) Otherwise, APRA must, in writing, refuse the application.
(3) The approval is subject to any conditions specified in the instrument of approval.
(4) If APRA refuses the application, APRA must set out the reasons for the refusal in the instrument of refusal.
(5) APRA must cause the applicant to be given a copy of the instrument of approval or refusal.
(6) An instrument of approval must designate a particular subparagraph of paragraph (1)(b) as the subparagraph on the basis of which the applicant is approved.
(7) In this section:
net tangible assets has the meaning given by the regulations.
An approval under section 26:
(a) comes into force when it is granted, or, if a later time is specified in the instrument of approval as the time when the approval comes into force, at that later time; and
(b) remains in force, subject to any variation under section 27B or 27C, until:
(i) it is revoked under section 28; or
(ii) the trustee is granted an RSE licence under section 29D.
(1) An approved trustee may apply to APRA for variation of the approval of the trustee by requesting a variation of:
(a) the designation of the subparagraph of paragraph 26(1)(b) as the subparagraph on the basis of which the trustee is approved; or
(b) any written custody requirements with which the trustee is required to comply; or
(c) any conditions to which the approval is subject.
(2) An application must:
(a) be made in writing; and
(b) specify the variation requested by the trustee; and
(c) set out the reasons for the application; and
(d) be signed by a responsible officer of the trustee.
(3) If APRA needs further information to decide an application, APRA may request the trustee, in writing, to supply APRA with such further information as is specified in the request within such time as is specified in the request.
(4) If, without reasonable excuse, the trustee refuses or fails to comply with the request, APRA may decide to treat the application as having been withdrawn.
(5) If APRA decides, under subsection (4), to treat the application as having been withdrawn, APRA must, as soon as practicable after so deciding, inform the applicant in writing to that effect.
(1) Subject to this section, APRA must decide an application for variation of the approval of a trustee within 60 days after receiving it.
(2) APRA is not required to vary the approval of a trustee in the terms requested by the trustee.
(3) If APRA thinks that it will take longer than 60 days to decide the application, APRA may extend the period for deciding it by no more than 60 days.
(4) An extension must be notified in writing to the trustee within 60 days after APRA receives the application.
(5) If APRA makes an extension, APRA must decide the application within the extended period.
(6) If APRA has not decided the application by the end of the day by which APRA is required to decide it, APRA is taken to have decided, at the end of that day, to refuse the application.
APRA may, on its own initiative, vary the approval of a trustee by varying:
(a) any written custody requirements with which the trustee is required to comply; or
(b) any conditions to which the approval is subject.
(1) If, under section 27B or 27C, APRA decides to vary the approval of a trustee, APRA must:
(a) by notice in writing, vary the approval; and
(b) give a copy of that notice, and a statement of the reasons for the variation, to the trustee.
(2) A notice varying an approval must:
(a) identify the approval being varied; and
(b) specify the day, not earlier than the day on which the notice of variation is made, when the variation begins; and
(c) designate a particular subparagraph of paragraph 26(1)(b) as the subparagraph on the basis of which the trustee is approved after the variation begins; and
(d) specify any written custody requirements with which the trustee is required to comply after the variation begins; and
(e) specify any conditions to which the approval of the trustee is subject after the variation begins.
(3) If, under section 27B, APRA decides to refuse to vary the approval of a trustee, APRA must:
(a) by notice in writing, record that it has so decided; and
(b) give a copy of that notice, and a statement of the reasons for the refusal to vary the approval, to the trustee.
If, under section 27B or 27C, APRA decides to vary an approval of a trustee:
(a) that variation comes into force on the day specified in the notice under paragraph 27D(2)(b); and
(b) the variation remains in force until:
(i) the revocation of the approval to which it relates; or
(ii) the coming into force of a later variation of that approval; or
(iii) the trustee is granted an RSE licence under section 29D.
(1) APRA may revoke the approval of an approved trustee by written notice given to the trustee.
(2) Without limiting subsection (1), APRA may revoke an approval under that subsection if APRA is satisfied, on reasonable grounds, that:
(aa) the trustee has requested in writing that the approval be revoked; or
(a) there has been a contravention of any condition to which the approval is subject; or
(b) the trustee can no longer be relied on to perform, in a proper manner, the duties of trustee of each relevant entity of which the trustee is the trustee; or
(c) if subparagraph 26(1)(b)(i) is designated as the subparagraph on the basis of which the trustee is approved—that subparagraph has ceased to apply to the trustee; or
(d) if subparagraph 26(1)(b)(ii) is designated as the subparagraph on the basis of which the trustee is approved—that subparagraph has ceased to apply to the trustee; or
(da) if subparagraph 26(1)(b)(iia) is designated as the subparagraph on the basis of which the trustee is approved—that subparagraph has ceased to apply to the trustee; or
(e) if subparagraph 26(1)(b)(iii) is designated as the subparagraph on the basis of which the trustee is approved—the trustee has failed to comply with a requirement of APRA under that subparagraph.
(3) Except in a case covered by paragraph (2)(aa), APRA must not make a decision under subsection (1) without the written consent of the Minister.
(1) An approved trustee must, as soon as practicable, and in any event within 30 days, after becoming aware of an event referred to in subsection (2), give APRA a written notice setting out particulars of the event.
(2) These are the events:
(a) a contravention of a condition to which the approval of the trustee is subject;
(b) if subparagraph 26(1)(b)(i) is designated as the subparagraph on the basis of which the trustee is approved—that subparagraph ceasing to apply to the trustee;
(c) if subparagraph 26(1)(b)(ii) is designated as the subparagraph on the basis of which the trustee is approved—that subparagraph ceasing to apply to the trustee;
(ca) if subparagraph 26(1)(b)(iia) is designated as the subparagraph on the basis of which the trustee is approved—that subparagraph ceasing to apply to the trustee;
(d) if subparagraph 26(1)(b)(iii) is designated as the subparagraph on the basis of which the trustee is approved—the trustee failing to comply with a requirement of APRA under that subparagraph.
(3) An approved trustee must not, without reasonable excuse, contravene subsection (1).
Penalty: 250 penalty units.
(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.
(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.
(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.
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).
(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.
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.
(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.
(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.
(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.
If APRA decides to grant an RSE licence to a body corporate or group of individual trustees, APRA must give the body or group an RSE licence that specifies:
(a) a unique licence number; and
(b) the class of licence.
(1) An RSE licensee must ensure that the number of its RSE licence 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 the number is included in that document or in a class of documents that includes that document.
(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.
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.
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;
(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;
(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).
(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.
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).
(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.
(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.
(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.
(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.
(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.
(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.
(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).
(1) Subject to subsection (3), APRA may, in writing, cancel an RSE licence.
Note: In some circumstances, APRA needs the consent of the Minister (see subsection (3)) or 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.
(3) APRA must not cancel an RSE licence under subsection (1) without the Minister’s written consent, unless paragraph (2)(a) or (b) applies to the cancellation.
(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.
(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.
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.
(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.
(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.
(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.
(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.
(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).
(1) A person who was not a trustee of a registrable superannuation entity at the start of the licensing transition period must not be a trustee, or act as a trustee, of a registrable superannuation entity at a time during that period, unless at that time 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;
(c) the person has been a trustee of the entity for less than 30 days and that entity has at least one other trustee who has been a trustee of it from immediately before the start of the licensing transition period until that time;
(d) the person, and at least one other trustee of the entity who has been a trustee of it from immediately before the start of the licensing transition period until that time, have applied for an RSE licence that would enable them to be a trustee of that entity and the application has not been finally determined or disposed of;
(e) the person is an approved trustee.
(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.
(1) An RSE licensee must give APRA a notice setting out the particulars of a breach by the RSE licensee of a condition imposed on its RSE licence as soon as practicable after, and in any event within 14 days after:
(a) if the RSE licensee is a body corporate—the body corporate; or
(b) if the RSE licensee is a group of individual trustees—a member of the group;
becomes aware that the breach has occurred.
(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.
(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.
(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.
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.
(1) An individual is not excused from complying with a requirement under section 29CA, 29FA or 29HD 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.
(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).
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
(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.
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).
(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.
(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.
If APRA registers a registrable superannuation entity, APRA must:
(a) allocate the entity a unique registration number; and
(b) notify the RSE licensee of the entity in writing of the registration and of the entity’s registration number.
(1) After a registrable superannuation entity is registered, the RSE licensee of the entity must ensure that the entity’s registration number 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 number is included in that document or in a class of documents that includes that document.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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).
(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.
A breach of section 29Q does not affect the validity of the issue of a superannuation interest or of any other act.
(1) An individual is not excused from complying with a requirement under section 29LA or 29PE 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.
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.
(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.
(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.
(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.
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.
The object of this Part is to require certain reports and returns relating to superannuation entities to be given to the Regulator.
Lodgment
(1) Each trustee of a 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 Part 13 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 financial documents to be given by trustees to APRA.
(2) A trustee is guilty of an offence if the trustee contravenes subsection (1).
Maximum penalty: 50 penalty units.
(2A) A trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.
Maximum 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.
Endorsement of report on return
(4) If the return given under the Financial Sector (Collection of Data) Act 2001 is not given on a data processing device, or by way of electronic transmission, the report referred to in subsection (1) may be endorsed on the return.
Self managed superannuation funds
(5) A superannuation entity is not required to lodge a return under the Financial Sector (Collection of Data) Act 2001 in respect of a year of income if the superannuation entity was, at all times during the year of income, a self managed superannuation fund.
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 for the purposes of this paragraph by the Commissioner of Taxation by notice in the Gazette.
Form of return
(3) The return must:
(a) be in the approved form; and
(b) contain such information as is 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).
(7) A person is guilty of an offence if the person contravenes this section.
Maximum penalty: 50 penalty units.
(7A) A person is guilty of an offence if the person contravenes this section. This is an offence of strict liability.
Maximum 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.
(8) A notice under paragraph (2)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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).
In this Part:
entity means a fund, scheme or trust.
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
(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.
(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.
(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.
(2) For the purposes of this Division, it is sufficient if a contravention is established on the balance of probabilities.
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.
(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.
(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 Part IX of the Income Tax Assessment Act 1936 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 Part IX of the Income Tax Assessment Act 1936 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 Part IX of the Income Tax Assessment Act 1936 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.
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 Part IX of the Income Tax Assessment Act 1936 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.
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.
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.
(1) A fund is a complying superannuation fund for the purposes of Part IX 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 Part IX of the Income Tax Assessment Act.
An exempt public sector superannuation scheme is taken to be a complying superannuation scheme for the purposes of the Superannuation Guarantee (Administration) Act 1992.
(1) A fund is a complying approved deposit fund for the purposes of Part IX 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.
(1) A unit trust is a pooled superannuation trust for the purposes of Part IX 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.
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.
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 49A of the Acts Interpretation Act 1901
(6) Subsection (5) of this section does not limit the application of section 49A of the Acts Interpretation Act 1901 to regulations made for the purposes of this section.
The object of this Part is to set out rules about the content of the governing rules of superannuation entities.
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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
The object of this Part is to set out special rules which apply only to regulated superannuation funds.
(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.
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.
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.
(3) The employer is guilty of an offence if the employer contravenes subsection (2).
Maximum 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.
Maximum 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.
(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.
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.
Definition
(6) In this section:
relative, in relation to an individual, means the following:
(a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of that individual or of his or her spouse;
(b) the spouse of that individual or of any other individual specified in paragraph (a).
Effect of Part 8
(7) Nothing in Part 8 limits the operation of this section.
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 written determination, 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.
Disallowable instrument
(2B) A determination under paragraph (2)(d) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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 section 470 of the Income Tax Assessment Act 1936; 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.
Prohibition
(1) Subject to this section, a trustee of a regulated superannuation fund must not:
(a) borrow money; or
(b) maintain an existing borrowing of money.
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 written determination made 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.
(4) A determination made by the Regulator under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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.
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.)
The object of this Part is to set out rules about the level of the in‑house assets of regulated superannuation 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.
(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.
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.
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.
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.
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.
relative, in relation to an individual, means the following:
(a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of that individual or of his or her spouse;
(b) the spouse of that individual or of any other individual specified in paragraph (a).
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 written determination, 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 (within the meaning of subsection 66(5)); 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), (ba), (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.
Paragraph (1)(f) determinations to be disallowable instruments
(6) A determination under paragraph (1)(f) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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.
(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.
(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.
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.
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.
(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.
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.
(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.
(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.
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:
(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:
(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%.
(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).
(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%.
(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).
(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%.
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.
(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%.
(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.
(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.
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.
(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.
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.
(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.
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.
(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.
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.
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.
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)).
This Part does not apply to a fund if the fund has an acting trustee appointed under Part 17.
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.
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.
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.
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 approved trustee (under section 26) or an RSE licensee; and
(ca) either:
(i) the trustee’s approval specifies that the trustee is also approved for the purposes of this subsection, either generally or in relation to the fund or a class of funds to which the fund belongs; or
(ii) 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.
Trustee’s subsection 92(5) approval
(6) When deciding whether or not to specify in a trustee’s approval (under section 26) that the trustee is also approved for the purposes of subsection 92(5), APRA must have regard to any written guidelines determined by APRA under this subsection.
(7) The approval of the trustee for the purposes of subsection 92(5) (the trustee’s subsection 92(5) 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 the trustee.
(8) Without limiting paragraph (7)(b), APRA may revoke a trustee’s subsection 92(5) approval if:
(a) APRA is satisfied that there has been a contravention of a condition to which the approval is subject; or
(b) the trustee applies in writing for its revocation.
(9) For the purposes of sections 27A, 27B, 27C, 27D, 27E and 29, if the trustee is an approved trustee, the trustee’s subsection 92(5) approval and any conditions to which it is subject are to be treated as conditions to which the trustee’s approval under section 26 is subject.
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.
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).
(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.
The object of this Part is to set out rules about borrowing by the trustees of approved deposit funds.
(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 written determination made 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.
(4) A determination made by APRA under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(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.
The object of this Part is to set out special rules applying only to pooled superannuation trusts.
(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 written determination made 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.
(4) A determination made by APRA under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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.
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.
The object of this Part is to impose special duties on the trustees and investment managers of superannuation entities.
(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.
(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.
(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.
Maximum 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.
(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.
Maximum 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.
(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.
Maximum 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.
(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 gives written notice to the Regulator setting out particulars of the event, no later than the third business day after the first‑mentioned trustee becomes aware 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.
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.
(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).
Maximum 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.
Maximum 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.
(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).
Maximum 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.
Maximum 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.
(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.
The object of this Part is to set out rules about the accounts, statements and audits of superannuation entities.
(1) Each trustee of a superannuation entity must ensure that:
(a) such accounting records as correctly record and explain the transactions and financial position of the entity are kept; and
(aa) if the entity is not a self managed superannuation fund—its accounts are so kept as to enable the preparation of reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001; and
(b) if the entity is a self managed superannuation fund—its accounting records are kept so as to enable the following to be prepared:
(i) the accounts and statements of the entity mentioned in section 112;
(ii) the returns of the entity mentioned in section 36A; and
(c) its accounting records are kept so as to enable 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 in Australia; 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.
(3) A trustee is guilty of an offence if the trustee contravenes subsection (1) or (2).
Maximum penalty: 100 penalty units.
(4) A trustee is guilty of an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.
Maximum 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.
(1) Each trustee of a superannuation entity that is a self managed superannuation fund must, in respect of each year of income of the entity, 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;
(ba) except where the regulations provide that this paragraph does not apply—a statement of cash flows;
(c) such accounts and statements as are specified in the regulations.
(2) The regulations may make provision for or in relation to the preparation of accounts and statements covered by subsection (1). If the regulations make such provision, 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 at least 2 directors of the corporate trustee;
(b) if there is a single individual trustee—by that trustee;
(c) 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 is guilty of an offence if the person contravenes this section.
Maximum penalty: 100 penalty units.
(6) A person is guilty of an offence if the person contravenes this section. This is an offence of strict liability.
Maximum 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.
(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 the 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 that apply to the entity.
(1A) 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.
(2) A trustee is guilty of an offence if the trustee contravenes subsection (1) or (1A).
Maximum penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(2A) A trustee is guilty of an offence if the trustee contravenes subsection (1) or (1A). This is an offence of strict liability.
Maximum 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) Without limiting the generality of subsection (1), an approved form:
(aa) must, if it is approved for a superannuation entity that is not a self managed superannuation fund, 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 not only to the audit of those statements, but also to the audit of such other accounts and statements, prepared in respect of a year of income, as are identified in the form; and
(a) 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 112(1) and prepared in respect of a year of income; or
(ii) relate not only to the audit of those accounts and statements, but also to the audit of such other accounts and statements, prepared in respect of a year of income, as are identified in the form; and
(b) must include a statement by the auditor as to whether, in the opinion of the auditor, each trustee of the entity and the RSE licensee (if any) of the entity has complied with the provisions of this Act and the regulations and the Financial Sector (Collection of Data) Act 2001, identified in the form, during that year of income; and
(c) 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.
(4) The auditor must give the report to each trustee of the entity within the specified period after the end of the year of income. The period is specified in the regulations.
(5) The auditor is guilty of an offence if the auditor contravenes subsection (4).
Maximum penalty: Imprisonment for 6 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(6) The auditor is guilty of an offence if the auditor contravenes subsection (4). This is an offence of strict liability.
Maximum 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.
The object of this Part is to set out various rules applying to superannuation entities.
(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.
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.
Application—21 October 1992 to Royal Assent
(1) This section does not apply to a standard employer‑sponsored fund during the period:
(a) beginning on 21 October 1992; and
(b) ending immediately before the day on which this Act received the Royal Assent;
unless the fund is a complying superannuation fund in relation to each year of income of the fund any part of which occurred during that period.
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:
complying superannuation fund means a complying superannuation fund within the meaning of Part IX of the Income Tax Assessment Act, as in force immediately before the day on which this Act received the Royal Assent.
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.
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.
The object of this Part is to set out rules about the eligibility of trustees, custodians and investment managers of superannuation entities.
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) the Regulator has disqualified the individual under section 120A.
Bodies corporate
(2) For the purposes of this Part, a body corporate is a disqualified person if:
(a) subsection (2A) applies; or
(b) a receiver, or a receiver and manager, has been appointed in respect of property beneficially owned by the body; or
(c) an official manager, deputy official manager or 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
(2A) This subsection applies 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 a disqualified person; and
(b) the body corporate knows, or has reasonable grounds to suspect, that:
(i) the person is not eligible under subsection 126B(1) to apply to APRA for a declaration waiving his or her status as a disqualified person; or
(ii) the person is so eligible but will not make an application under subsection 126B(3) within the period allowed for the purpose.
(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.
(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 (whether before or after the commencement of this section); and
(b) the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.
(2) The Regulator may disqualify an individual who is, or was (including before the commencement of this section), 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 (whether before or after the commencement of this section); 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 120A(6) or 344(6) (result of internal review) to be published in the Gazette as soon as practicable.
(1) A person must not intentionally be, or act as, a trustee of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is a trustee of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
(3) If a trustee of a superannuation entity is or becomes a disqualified person, the trustee must immediately tell the Regulator in writing.
Penalty for a contravention of this subsection: 50 penalty units.
(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.
(1) Subject to subsection (1A), a person must not be, or act as, a trustee of a superannuation entity that is a superannuation fund with fewer than 5 members (other than a self managed superannuation fund) unless the person is an approved trustee or an RSE licensee that is a constitutional corporation.
(1A) Subsection (1) does not apply in respect of a superannuation fund at a particular time (the relevant time) if:
(a) at the relevant time the fund is being wound up; and
(b) immediately before the commencement of the winding up, the fund had at least 5 members; and
(c) the relevant time is not more than one year (or such longer period, if any, as APRA allows in respect of the fund) after the time, or the first time, at which the number of members falls below 5.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
(3) An offence under subsection (2) is an offence of strict liability.
(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.
Maximum 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.
(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.
(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.
Maximum 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.
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.
(1) A person must not intentionally be, or act as, an investment manager of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is an investment manager of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
Basic prohibition
(1) A person must not intentionally be, or act as, a custodian of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
Prohibition—responsible officer of body corporate
(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is a custodian of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
(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.
(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).
(1) If APRA is satisfied, 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;
that the applicant is highly unlikely to be a prudential risk to any superannuation entity, APRA 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.
Note: APRA’s power under this subsection does not extend to self managed superannuation funds, see subsection 6(1).
(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 Commissioner of Taxation 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 Commissioner 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.
Note: The Commissioner’s power under this subsection only extends to self managed superannuation funds, see subsection 6(1).
(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.
(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.
(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.
A failure to comply with a provision of this Part does not affect the validity of an appointment or transaction.
The object of this Part is to set out special rules about actuaries and auditors of superannuation entities.
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 this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 may have occurred, may be occurring, or may occur, in relation to the entity; 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, as soon as practicable 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 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.
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.
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, as soon as practicable 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.
(1) 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;
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.
(2) A person who, in good faith, gives information to the Regulator in accordance with this section is not subject to any action, claim or demand by, or any liability to, any other person in respect of the information.
(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.
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.
Disqualification order
(1) The Regulator may make a written order (disqualification order) disqualifying a person from being an approved auditor 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 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
(iii) any functions that an auditor 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 for the purposes of this Act.
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 under this Act or the regulations; and
(b) is otherwise a fit and proper person to be an approved auditor 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.
(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 section 252C of this Act (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 those sections.
(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, the power of the Regulator under subsection (1) may be exercised whether or not the Regulator has made a written order disqualifying the auditor under subsection 131(1).
(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.
(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.
Maximum 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.
Maximum 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.
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.
Suspension or removal
(1) The Regulator may suspend or remove a trustee of a superannuation entity if:
(a) 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) the Regulator:
(i) under section 28, revokes the approval of the trustee; or
(ii) under section 29G, cancels the RSE licence that enables the trustee to be a trustee of that entity; or
(d) if the superannuation entity is a superannuation fund with fewer than 5 members (other than a self managed superannuation fund)—the trustee is required by subsection 121A(1) to be, but is not, an approved trustee or an RSE licensee that is a constitutional corporation; 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.
Written consent of the Minister
(5) The Regulator must not make either of the following decisions without the written consent of the Minister:
(a) a decision to suspend or remove a trustee;
(b) a decision to extend the suspension of a trustee.
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.
(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.
The Regulator may terminate the appointment of the acting trustee at any time.
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.)
(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.
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.
(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.
(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.
(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.
Maximum 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.
Maximum 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.
Schemes
(1) If a person is appointed under this Part to act as trustee of a superannuation entity, the Regulator may, by writing, 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.
Disallowance
(8) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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.
(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 approved trustee or 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.
(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 approved trustee or 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.
(1) 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 approved trustee or an RSE licensee.
(2) APRA must not approve the transfer without the Minister’s written consent.
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.
A contravention of this Part does not affect the validity of the issue of a superannuation interest or of any other act.
(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:
(i) is the only trustee of the entity and is an approved trustee; or
(ii) 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.
(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).
Maximum 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.
Maximum 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.
(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.
(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.
The object of this Part is to specify the consequences of contravening a civil penalty provision.
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).
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.
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.
(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.
(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.
An application for a civil penalty order may be made within 6 years after the contravention.
(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.
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.
(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).
(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.
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.
This Division applies if criminal proceedings are begun against a person for an offence constituted by a contravention of a civil penalty provision.
(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.
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.
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.
(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.
(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.
(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.
(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.
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.
(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.
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.
(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.
(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.
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.
(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.
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.
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.
(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.
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.
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.
In this Part:
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) that has at least one defined benefit member.
defined benefit member means:
(a) 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 one or more of the following:
(i) the amount of 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;
(ii) the amount of the member’s salary averaged over a period before retirement;
(iii) a specified amount; or
(b) a member who is being paid a defined benefit pension.
defined benefit pension means a pension other than:
(a) a pension wholly determined by reference to policies of life assurance purchased or obtained by a trustee of a regulated superannuation fund solely for the purposes of providing benefits to members of that fund; or
(b) an allocated pension (as defined in subregulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994).
eligible loss:
(a) in relation to a fund that is not a defined benefit fund—means a loss suffered by the fund as a result of fraudulent conduct, or theft; and
(b) in relation to a fund that is a defined benefit fund—means so much of a loss suffered by the fund as a result of fraudulent conduct, or theft, that a standard employer‑sponsor of the fund:
(i) is required to pay to the fund; but
(ii) cannot pay to the fund while remaining able to pay all debts incurred by the standard employer‑sponsor, as and when the debts become due and payable.
fund means a regulated superannuation fund or an approved deposit fund but does not include a self managed superannuation fund.
levy means the levy imposed by the Superannuation (Financial Assistance Funding) Levy Act 1993.
(1) If:
(a) a fund suffers an eligible loss after the commencement of this Part; 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.
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.
(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).
(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 the fund; 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.
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.
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 beneficiaries in the fund; or
(ii) for the benefit of the beneficiaries 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.
(1) This subsection establishes a reserve called the Superannuation Protection Reserve.
(2) The Reserve is a component of the Reserved Money Fund.
(3) So far as practicable, money in the Reserve that is not required for the purpose of making payments out of the Reserve must be invested under section 39 of the Financial Management and Accountability Act 1997.
(4) If income is received by the Commonwealth from the investment of money from the Reserve, an amount equal to the income must be transferred to the Reserve from the Consolidated Revenue Fund.
(1) If the Minister determines that a grant of financial assistance is to be made to a trustee of a fund, the Minister is also to determine in writing whether:
(a) the assistance is to be paid out of the Consolidated Revenue Fund; or
(b) the assistance is to be paid out of the Reserve.
(2) If the Minister determines that the assistance is to be paid out of the Consolidated Revenue Fund, the Consolidated Revenue Fund is appropriated accordingly.
The purposes of the Reserve are to make payments of financial assistance that are payable out of the Reserve pursuant to a determination by the Minister under paragraph 235(1)(b) and to apply any excess referred to in subsection 237(2) in accordance with that subsection.
(1) A separate notional account is to be kept within the Reserve in respect of each levy.
(2) If the total of the amounts paid by funds into the Reserve in respect of a levy that was imposed because of one or more determinations made by the Minister to grant financial assistance exceeds the total amount of that financial assistance, the excess is to be applied in such manner as the Minister determines.
(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.
The Minister may remit the whole or a part of the liability of a trustee of a fund under section 238.
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).
The object of this Part is to provide for a facility for the payment of benefits to eligible rollover funds.
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.
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.
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.
(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).
The object of this Part is to provide for certain transitional measures relating to pre‑1 July 1995 automatic rollovers of benefits between funds.
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.
(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.
(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).
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.
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.
(1) In this section:
Act covered by this section means any of the following Acts:
(a) the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987;
(b) the Superannuation (Self Managed Superannuation Funds) Supervisory Levy Imposition Act 1991;
(c) any other Act prescribed by the regulations for the purposes of this paragraph.
court includes a tribunal, authority or person having the power to require the production of documents or the answering of questions.
financial sector supervisory agency means a person or body having the function, in Australia or in a foreign country, of supervising or regulating financial institutions.
officer means:
(a) the Commissioner of Taxation; or
(b) a taxation officer; or
(c) any other person who, because of his or her employment, or in the course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents;
other than an employee of the body to which the information or document relates.
protected document means a document given or produced (whether before or after the commencement of this section) under, or for the purposes of, this Act or an Act covered by this section and containing information relating to the affairs of:
(a) a self managed superannuation fund; or
(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related to a body corporate that is the trustee of a self managed superannuation fund; or
(c) a person who has been, is, or proposes to be, a member of a self managed superannuation fund;
other than information that has already been lawfully made available to the public from other sources.
protected information means information disclosed or obtained (whether before or after the commencement of this section) under, or for the purposes of, this Act or an Act covered by this section and relating to the affairs of:
(a) a self managed superannuation fund; or
(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related to a body corporate that is the trustee of a self managed superannuation fund; or
(c) a person who has been, is, or proposes to be, a member of a self managed superannuation fund;
other than information that has already been lawfully made available to the public from other sources.
(2) A person who is or has been an officer is guilty of an offence if:
(a) the person directly or indirectly:
(i) discloses information acquired in the course of his or her duties as an officer to any person or to a court; or
(ii) produces a document to any person or to a court; and
(b) the information is protected information, or the document is a protected document; and
(c) the disclosure or production is not in accordance with subsection (3), (4), (5), (6), (7), (7A) or (7B).
Maximum penalty: Imprisonment for 2 years.
(3) It is not an offence if the disclosure of protected information or the production of a protected document by a person is for the purposes of this Act or an Act covered by this section.
(4) It is not an offence if the disclosure of protected information or the production of a protected document by a person:
(a) is by an employee of the person to whose affairs the information or document relates; or
(b) occurs after the person to whose affairs the information or document relates has agreed in writing to the disclosure or production.
(5) It is not an offence if the disclosure of protected information or the production of a protected document by a person:
(a) occurs when the person is satisfied that the disclosure of the information, or the production of the document, will assist a financial sector supervisory agency, or any other agency (including foreign agencies), specified in the regulations, to perform its functions or exercise its powers and the disclosure or production is to that agency; or
(b) is to another person and is approved by the Commissioner of Taxation by instrument in writing.
Note: See subsection (9) for conditions that may be imposed on people making disclosures under this subsection.
(6) It is not an offence if the disclosure of protected information or the production of a protected document is to:
(a) the Commissioner of Taxation; or
(b) a taxation officer;
for the purposes of the performance of the functions or the exercise of the powers of the Commissioner of Taxation under a law of the Commonwealth or of a State or Territory.
(7) It is not an offence if the information, or the information contained in the document, as the case may be, is in the form of a summary or collection of information that is prepared so that information relating to any particular person cannot be found out from it.
(7A) It is not an offence if the information, or the information contained in the document, as the case may be, is all or any of the following:
(a) information identifying a particular self‑managed superannuation fund (other than information disclosing the tax file number of the fund);
(b) information that is reasonably necessary to enable members of the public to contact persons who perform functions in relation to a particular self‑managed superannuation fund;
(c) a statement of the Commissioner’s opinion as to whether or not a particular self‑managed superannuation fund is a complying superannuation fund in relation to a particular year of income for the purposes of Division 2 of Part 5;
(d) a description of:
(i) court proceedings in relation to a breach or suspected breach by a person of a provision of this Act or a provision of an Act covered by this section; or
(ii) activity engaged in, or proposed to be engaged in, by the Commissioner in relation to such a breach or suspected breach.
Note: A defendant bears an evidential burden in relation to the matters in subsection (7A) (see subsection 13.3(3) of the Criminal Code).
(7B) If information referred to in subsection (7A) is disclosed to the Registrar of the Australian Business Register established under section 24 of the A New Tax System (Australian Business Number) Act 1999, the Registrar may enter the information in that Register.
Note: A defendant bears an evidential burden in relation to the matters in subsection (7B) (see subsection 13.3(3) of the Criminal Code).
(8) A person who is, or has been, an officer cannot be required to disclose to a court any protected information or to produce in a court a protected document, except when it is necessary to do so for the purposes of this Act or an Act covered by this section.
(9) The regulations may impose conditions in relation to the disclosure of information or the production of a document under this section, with which a person who discloses the information or produces the document must comply.
(10) A person is guilty of an offence if the person fails to comply with a condition imposed under subsection (9).
Maximum penalty: Imprisonment for 2 years.
(11) A document that:
(a) is a protected document; or
(b) contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of Information Act 1982.
Note: The Privacy Act 1988 also contains provisions relevant to the disclosure of information.
In this Division:
commencement day means the day on which section 1 of the Superannuation Legislation Amendment Act (No. 3) 1999 commenced.
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.
(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.
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.
The regulations may deal with other transitional matters arising from the enactment of the Superannuation Legislation Amendment Act (No. 3) 1999.
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.
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.
(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).
Maximum 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.
Maximum 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.
(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.
(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.
(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.
(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.
(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.
(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.
Maximum 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.
Maximum 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.
(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.
(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.
Maximum 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.
Maximum 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.
(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.
(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.
Regulator may act to preserve values of interests
(1) 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 affect adversely the values of the interests of beneficiaries, the Regulator may do any one or more of the things set out in subsections (2) to (4).
(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.
Written consent of the Minister
(6) The Regulator must not give a notice under subsection (3), (3A) or (4) without the written consent of the Minister.
(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.
(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.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
This Division applies if, pursuant to a requirement made under paragraph 270(d), a person (the examinee) appears before an inspector.
(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.
(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).
(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.
(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.
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.
(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.
(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.
(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.
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.
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.
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.
(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 official management or administration or is being wound up—the official manager or 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.
(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.
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.
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.
(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.
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.
(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.
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.
(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.
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.
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.
(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.
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.
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.
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.
(1) If:
(a) after the commencement of this section, an employee quotes or first quotes 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; 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)).
(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.
Maximum 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.
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.
(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.
(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).
Maximum 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.
Maximum 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.
(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).
Maximum 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.
Maximum 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.
(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.
Use of tax file numbers to locate amounts
(4) Subject to subsection (5), a trustee may use tax file numbers quoted to a trustee as mentioned in subsection (1) in order to locate, in the records or accounts of the entity, amounts held for the benefit of persons.
Use of tax file number to identify amounts held for the benefit of a particular person
(5) If a trustee of the entity needs to identify the amounts held for the benefit of a particular person:
(a) the trustee must first use information (other than tax file numbers) to identify the amounts; and
(b) the trustee may only use the tax file number quoted by the person to a trustee of the entity:
(i) if the information referred to in paragraph (a) is insufficient to identify the amounts; or
(ii) to confirm the identification of the amounts resulting from the use of the other information.
(6) A trustee of the entity commits an offence if a requirement of subsection (2), (3) or (5) is contravened by the trustee of the entity.
Maximum penalty: 100 penalty units.
(7) A trustee of the entity commits an offence if a requirement of (2), (3) or (5) is contravened by the trustee of the entity. This is an offence of strict liability.
Maximum 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.
(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.
Use of tax file numbers to locate amounts
(4) Subject to subsection (5), a trustee may use tax file numbers quoted to a trustee as mentioned in subsection (1) in order to locate, in the records or accounts of the scheme, amounts held for the benefit of persons.
Use of tax file numbers to identify amounts held for the benefit of a particular person
(5) If a trustee of the scheme needs to identify the amounts held for the benefit of a particular person:
(a) the trustee must first use information (other than tax file numbers) to identify the amounts; and
(b) the trustee may only use the tax file number quoted by the person to a trustee of the scheme:
(i) if the information referred to in paragraph (a) is insufficient to identify the amounts; or
(ii) to confirm the identification of the amounts resulting from the use of the other information.
(6) A trustee of the scheme commits an offence if a requirement of subsection (3) or (5) is contravened by the trustee.
Maximum penalty: 100 penalty units.
(7) A trustee of the scheme commits an offence if a requirement of subsection (3) or (5) is contravened by the trustee. This is an offence of strict liability.
Maximum 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.
(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.
Use of tax file numbers to locate amounts
(4) Subject to subsection (5), a trustee may use tax file numbers quoted to a trustee as mentioned in subsection (1) in order to locate, in the records or accounts of the entity, amounts held for the benefit of persons.
Use of tax file numbers to identify amounts held for the benefit of a particular person
(5) If a trustee needs to identify the amounts held for the benefit of a particular person:
(a) the trustee must first use information (other than tax file numbers) to identify the amounts; and
(b) the trustee may only use the tax file number quoted by the person to a trustee of the entity:
(i) if the information referred to in paragraph (a) is insufficient to identify the amounts; or
(ii) to confirm the identification of the amounts resulting from the use of the other information.
(6) A trustee of the entity commits an offence if a requirement of subsection (2), (3) or (5) is contravened by the trustee.
Maximum penalty: 100 penalty units.
(7) A trustee of the entity commits an offence if a requirement of subsection (2), (3) or (5) is contravened by the trustee. This is an offence of strict liability.
Maximum 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.
(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.
Use of tax file numbers to locate amounts
(4) Subject to subsection (5), a trustee may use tax file numbers quoted to a trustee as mentioned in subsection (1) in order to locate, in the records or accounts of the scheme, amounts held for the benefit of persons.
Use of tax file numbers to identify amounts held for the benefit of a particular person
(5) If a trustee of the scheme needs to identify the amounts held for the benefit of a particular person:
(a) the trustee must first use information (other than tax file numbers) to identify the amounts; and
(b) the trustee may only use the tax file number quoted by the person to a trustee of the scheme:
(i) if the information referred to in paragraph (a) is insufficient to identify the amounts; or
(ii) to confirm the identification of the amounts resulting from the use of the other information.
(6) A trustee of the scheme commits an offence if a requirement of subsection (3) or (5) is contravened by the trustee.
Maximum penalty: 100 penalty units.
(7) A trustee of the scheme commits an offence if a requirement of subsection (3) or (5) is contravened by the trustee. This is an offence of strict liability.
Maximum 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.
(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).
Maximum 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.
Maximum 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.
(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.
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
(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.
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.
(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.
(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.
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.
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.
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.
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.
This Part does not apply with respect to State insurance that does not extend beyond the limits of the State concerned.
(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).
Maximum 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.
Maximum 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.
(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.
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.
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.
(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).
(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.
(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.
(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.
The object of this Part is to set out rules about the power of the courts to deal with matters arising under this Act.
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 official manager, deputy official manager or 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.)
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.
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.
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.
(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.
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; or
(b) attempting to contravene this Act; or
(c) aiding, abetting, counselling or procuring a person to contravene this Act; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or
(f) conspiring with others to contravene this Act;
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 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 subsection (1), (3) or (5).
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.
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.
Nothing in any one of section 313, 314 or 315 limits the generality of anything else in any other of those sections.
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.
(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.
The object of this Part is to set out various rules about court 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.
No civil proceedings under this Act are to be stayed merely because the proceeding discloses, or arises out of, the commission of an offence.
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.
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.
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.
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.
(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.
(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.
In this Part:
modifiable provision means a provision of:
(a) section 54; or
(b) Part 3, 9, 19 or 24; or
(c) regulations made for the purposes of that section or of a provision of any of those Parts; or
(d) subsection 63(7B), (7C) or (7D).
The Regulator may, in writing, exempt a particular person or class of persons from compliance with any or all of the modifiable provisions.
(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.
(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.
The Regulator may, in writing, declare that a modifiable provision is to have effect, in relation to a particular person or class of persons, as if it were modified as specified in the declaration.
(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.
The Regulator may, in writing, revoke an exemption or declaration under this Part.
The Regulator must cause a copy of an exemption or declaration under this Part, or a revocation of such an exemption or declaration, to be published in the Gazette.
The object of this Part is to set out miscellaneous rules about various matters relating to the operation of this Act.
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.
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.
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).
(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.
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.
(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.
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.
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.
Hearings in private
(11) The hearing of a proceeding relating to a reviewable decision is to take place in private and the Administrative Appeals Tribunal may, by order:
(a) give directions as to the persons who may be present; and
(b) give directions of a kind referred to in paragraph 35(2)(b) or (c) of the Administrative Appeals Tribunal Act 1975.
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 (ba), (c), (d), (dd), (de), (df), (dg), (dl), (dm), (dn), (pa), (pb), (q), (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.
(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.
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.
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 RegulatorA 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 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).
Maximum 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.
(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.
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.
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.
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.
(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) subject to subsection 376(6), 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.
The object of this Part is to make provisions relating to the transition to the scheme provided for in this Act.
(1) This Division applies to a fund or trust in relation to which the conditions specified in subsection (2):
(a) are satisfied on the commencement of this Part; or
(b) become satisfied after that commencement and before 1 July 1994.
(2) These are the conditions:
(a) the fund or trust is:
(i) a complying superannuation fund within the meaning of Part IX of the Income Tax Assessment Act; or
(ii) an approved deposit fund within the meaning of the Occupational Superannuation Standards Act 1987; or
(iii) a pooled superannuation trust within the meaning of the Occupational Superannuation Standards Act 1987;
(b) interests in the fund or trust are prescribed interests, within the meaning of the Corporations Law of a State or internal Territory, to which Division 5 of Part 7.12 of that Law applies;
(c) there is a trustee of the fund or trust;
(d) there is a management company, within the meaning of the Corporations Law referred to in paragraph (b), in relation to the prescribed interests referred to in that paragraph;
(e) the trustee and the management company are constitutional corporations.
(3) For the purposes of the application of this Division in relation to the fund or trust, the fund or trust is called the Part 31 entity.
(4) The fact that the fund or trust is the Part 31 entity for the purposes of the application of this Division in relation to it does not prevent another fund or trust from being the Part 31 entity for the purposes of the application of this Division in relation to the other fund or trust.
In this Division:
existing management company means the constitutional corporation that is the management company of the Part 31 entity on the starting day.
existing trustee means the constitutional corporation that is the trustee of the Part 31 entity on the starting day.
management company means a body corporate:
(a) that is, within the meaning of the Corporations Law of a State or internal Territory, the management company in relation to interests in the Part 31 entity that are prescribed interests within the meaning of that Law; or
(b) that would, if interests in the Part 31 entity were prescribed interests within the meaning of the Corporations Law of a State or internal Territory, be the management company in relation to those interests within the meaning of that Law.
Part 31 entity has the meaning given by subsection 355(3).
starting day means:
(a) if paragraph 355(1)(a) applies—the day on which this Part commences; or
(b) if paragraph 355(1)(b) applies—the day on which the conditions specified in subsection 355(2) become satisfied.
(1) Subject to section 358, the existing management company may retire from the office of management company of the Part 31 entity by giving written notice to the existing trustee in accordance with this section.
(2) A notice must specify a date of effect that is:
(a) a least 3 months after it is given to the existing trustee; and
(b) after 30 June 1994.
(3) The existing management company cannot give a notice if the existing trustee has already given the existing management company a notice under section 363.
(4) If the existing management company gives the existing trustee a notice, the existing management company must give a copy of the notice to APRA.
(5) The existing management company must not intentionally or recklessly contravene subsection (4).
Penalty: 250 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(6) A notice cannot be revoked.
(1) If:
(a) the existing management company gives the existing trustee a notice under section 357; and
(b) the Part 31 entity is a superannuation entity on the date of effect specified in the notice;
the retirement of the existing management company takes effect on that date.
(2) If the retirement of the existing management company so takes effect, the following provisions apply for so long as the Part 31 entity remains a superannuation entity:
(a) no new management company of the entity can be appointed;
(b) the governing rules of the entity have effect as if references in them to the management company of the entity were instead references to the trustee of the entity;
(c) subject to subsections (4) and (5), the trustee of the entity has power to amend any trust instrument that constitutes, or is part of, those governing rules for the purposes of removing references to the management company of the entity and making other changes consequential on the removal of those references.
(3) An appointment in contravention of paragraph (2)(a) is ineffective.
(4) An amendment under paragraph (2)(c) must be one that the trustee of the Part 31 entity reasonably believes will not adversely affect the rights of the members of the entity.
(5) The regulations may do either or both of the following:
(a) require the trustee of the Part 31 entity to comply with specified formal requirements when making amendments under paragraph (2)(c);
(b) require the trustee of the Part 31 entity to notify specified persons of amendments made under paragraph (2)(c).
(6) A notice under section 357 has no effect except as provided in this Division.
(1) If the existing trustee receives a notice under section 357, the existing trustee must take action under subsection (2) or (3) within 2 months after receiving the notice.
(2) Subject to section 361, the existing trustee may retire from the office of trustee of the Part 31 entity by giving written notice to APRA.
(3) The existing trustee may give written notice to APRA to the effect that it is not going to retire.
(4) If the existing trustee gives APRA a notice under subsection (3), the existing trustee must give a copy of the notice to each member of the Part 31 entity.
(5) The existing trustee must not intentionally or recklessly contravene subsection (1) or (4).
Penalty: 250 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) If APRA receives a notice under subsection 359(2) from the existing trustee, APRA must appoint a constitutional corporation as the new trustee of the Part 31 entity.
(2) The appointment of the new trustee does not take effect except as provided in subsection 361(2).
(1) If:
(a) the existing trustee gives APRA a notice under subsection 359(2); and
(b) the Part 31 entity is a superannuation entity on the date of effect specified in the notice given by the existing management company under section 357;
the retirement of the existing trustee takes effect on that date.
(2) If the retirement of the existing trustee so takes effect:
(a) the appointment under section 360 of the new trustee of the Part 31 entity takes effect at the time (the retirement time) when the retirement takes effect; and
(b) property of the entity vests in the new trustee in accordance with subsections (3), (4) and (5).
(3) Subject to subsection (5), property of the Part 31 entity that was vested in law in the existing trustee immediately before the retirement time vests in law in the new trustee at that time.
(4) Property of the Part 31 entity that was vested in equity in the existing trustee immediately before the retirement time vests in equity in the new trustee at that time.
(5) If:
(a) property to which subsection (3) applies is of a kind whose transfer or transmission may be registered under a law (the transfer law) of the Commonwealth, of a State or of a Territory; and
(b) the transfer law enables the new trustee to be registered as the owner of the property;
the property does not vest in law in the new trustee until the requirements of the transfer law have been complied with.
(6) The former trustee (being the body corporate that was the existing trustee before its retirement) must do all things within its power, in relation to property to which subsection (5) applies, that are necessary to enable the registration of the new trustee as the owner of the property under the transfer law.
(7) The former trustee must not intentionally or recklessly contravene subsection (6).
Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(8) A notice under subsection 359(2) has no effect except as provided in this section.
(1) If the existing trustee fails to take action as required by subsection 359(1), the existing trustee is taken to have given APRA a notice under subsection 359(3).
(2) Subsection (1) does not have effect for the purposes of a prosecution for an offence against subsection 359(5) that relates to a contravention of subsection 359(1).
(3) If the existing trustee is taken by subsection (1) to have given APRA a notice, subsection 359(4) does not apply in relation to the notice.
(1) Subject to section 366, the existing trustee may retire from the office of trustee of the Part 31 entity by giving written notice to the existing management company in accordance with this section.
(2) A notice must specify a date of effect that is:
(a) at least 3 months after it is given to the existing management company; and
(b) after 30 June 1994.
(2A) The provisions of the governing rules of the fund or trust concerned have no effect to the extent to which they require the holding of a meeting of beneficiaries before the existing trustee may give a notice.
(3) The existing trustee cannot give a notice if the existing management company has already given the existing trustee a notice under section 357.
(4) If the existing trustee gives a notice to the existing management company at the same time as the existing management company gives the existing trustee a notice under section 357, the notice given by the existing trustee has no effect.
(5) If the existing trustee gives the existing management company a notice, the existing trustee must give a copy of the notice to APRA.
(6) The existing trustee must not intentionally or recklessly contravene subsection (5).
Penalty: 250 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(7) A notice cannot be revoked.
(1) If the existing management company receives a notice under section 363, the existing management company must take action under subsection (2) or (3) within 2 months after receiving the notice.
(2) Subject to section 367, the existing management company may retire from the office of management company of the Part 31 entity, and refuse to be appointed as its trustee, by giving written notice to APRA.
(3) Subject to section 367, the existing management company may retire from the office of management company of the Part 31 entity, and agree to being appointed as its trustee, by giving written notice to APRA.
(4) The existing management company must not intentionally or recklessly contravene subsection (1).
Penalty: 250 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) Subject to subsections (2) and (3), if APRA receives a notice under section 363, APRA must appoint a constitutional corporation as the new trustee of the Part 31 entity.
(2) If APRA also receives a notice under subsection 364(2), APRA must not appoint the existing management company as the new trustee.
(3) If APRA also receives a notice under subsection 364(3), APRA must appoint the existing management company as the new trustee.
(4) The appointment of the new trustee does not take effect except as provided in section 366.
(1) This section applies if:
(a) the existing trustee gives the existing management company a notice under section 363; and
(b) the Part 31 entity is a superannuation entity on the date of effect specified in the notice.
(2) The retirement of the existing trustee takes effect on the specified date.
(3) If the retirement of the existing trustee so takes effect:
(a) the appointment under section 365 of the new trustee of the Part 31 entity takes effect at the time (the retirement time) when the retirement takes effect; and
(b) property of the entity vests in the new trustee in accordance with subsections (4), (5) and (6).
(4) Subject to subsection (6), property of the Part 31 entity that was vested in law in the existing trustee immediately before the retirement time vests in law in the new trustee at that time.
(5) Property of the Part 31 entity that was vested in equity in the existing trustee immediately before the retirement time vests in equity in the new trustee at that time.
(6) If:
(a) property to which subsection (4) applies is of a kind whose transfer or transmission may be registered under a law (the transfer law) of the Commonwealth, of a State or of a Territory; and
(b) the transfer law enables the new trustee to be registered as the owner of the property;
the property does not vest in law in the new trustee until the requirements of the transfer law have been complied with.
(7) The former trustee (being the body corporate that was the existing trustee before its retirement) must do all things within its power, in relation to property to which subsection (6) applies, that are necessary to enable the registration of the new trustee as the owner of the property under the transfer law.
(8) The former trustee must not intentionally or recklessly contravene subsection (7).
Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) If the retirement of the existing trustee takes effect under section 366 and the existing management company has given APRA a notice under subsection 364(2) or (3), the existing management company’s retirement from the office of management company of the Part 31 entity takes effect at the same time as the retirement of the existing trustee.
(2) If the existing management company’s retirement takes effect, the following provisions apply for so long as the entity remains a superannuation entity:
(a) no new management company of the entity can be appointed;
(b) the governing rules of the entity have effect as if references in them to the management company of the entity were instead references to the trustee of the entity;
(c) subject to subsections (4) and (5), the trustee of the entity has power to amend any trust instrument that constitutes, or is part of, those governing rules for the purposes of removing references to the management company of the entity and making other changes consequential on the removal of those references.
(3) An appointment in contravention of paragraph (2)(a) is ineffective.
(4) An amendment under paragraph (2)(c) must be one that the trustee of the Part 31 entity reasonably believes will not adversely affect the rights of the members of the entity.
(5) The regulations may do either or both of the following:
(a) require the trustee of the Part 31 entity to comply with specified formal requirements when making amendments under paragraph (2)(c);
(b) require the trustee of the Part 31 entity to notify specified persons of amendments made under paragraph (2)(c).
A notice under section 363 or 364 has no effect except as provided in this Division.
(1) If the existing management company fails to take action as required by subsection 364(1), the existing management company is taken to have given APRA a notice under subsection 364(3).
(2) Subsection (1) does not have effect for the purposes of a prosecution for an offence against subsection 364(4).
(1) This section applies if:
(a) the existing management company, on or after 1 July 1994, ceases to hold office as the management company of the Part 31 entity otherwise than because of this Division; and
(b) at the time (the cessation time) when the existing management company ceases to hold office:
(i) the existing trustee still holds office (otherwise than because of section 372) as the trustee of the entity; and
(ii) the entity is a superannuation entity.
(2) This Division applies as if:
(a) the existing management company had given the existing trustee a notice under section 357 that specified as the date of effect the day in which the cessation time occurs; and
(b) the existing trustee had given APRA a notice under subsection 359(3).
(3) Subsection 359(4) does not apply for the purposes of this Division as it applies because of subsection (2) of this section.
(4) Any notices:
(a) actually given under Subdivision B or C by the existing management company or the existing trustee; or
(b) taken by subsection 362(1) or 369(1) to have been given by the existing trustee or the existing management company;
have no effect.
(1) This section applies if:
(a) the existing trustee, on or after 1 July 1994, ceases to hold office as the trustee of the Part 31 entity otherwise than because of this Division; and
(b) at the time (the cessation time) when the existing trustee ceases to hold office:
(i) the existing management company still holds office as the management company of the entity; and
(ii) the entity is a superannuation entity.
(2) This Division applies as if:
(a) the existing trustee had given the existing management company a notice under subsection 363(1) that specified as the date of effect the day in which the cessation time occurs; and
(b) the existing management company had given APRA a notice under subsection 364(3); and
(c) APRA had, under section 365, appointed the existing management company as the new trustee of the Part 31 entity.
(3) Any notices:
(a) actually given under Subdivision B or C by the existing management company or the existing trustee; or
(b) taken by subsection 362(1) or 369(1) to have been given by the existing trustee or the existing management company;
have no effect.
(1) This section applies if:
(a) the existing trustee and the existing management company, on or after 1 July 1994, would, but for this section, cease, at the same time (the cessation time), to hold office as the trustee and management company, respectively, of the Part 31 entity otherwise than because of this Division; and
(b) the entity is a superannuation entity at the cessation time.
(2) By force of this section, the existing trustee does not cease, at the cessation time, to hold office as the trustee of the Part 31 entity.
(3) This Division applies as if:
(a) the existing management company had given the existing trustee a notice under section 357 that specified as the date of effect the day in which the cessation time occurs; and
(b) the existing trustee had given APRA a notice under subsection 359(3).
(4) Subsection 359(4) does not apply for the purposes of this Division as it applies because of subsection (3) of this section.
(5) Any notices:
(a) actually given under Subdivision B or C by the existing management company or the existing trustee; or
(b) taken by subsection 362(1) or 369(1) to have been given by the existing trustee or the existing management company;
have no effect.
In this Subdivision:
transitional period means the period after 30 June 1994 when:
(a) the Part 31 entity is a superannuation entity; and
(b) the existing trustee and existing management company continue to hold office as the trustee, and management company, respectively, of the entity.
For the purposes of this Act as it applies to the Part 31 entity during the transitional period, the existing trustee is taken to have been approved as a trustee under section 26 on 1 July 1994.
(1) The regulations may modify:
(a) this Act (other than this Part); and
(b) the regulations made under this Act (other than this Part);
as they apply in relation to the Part 31 entity during the transitional period.
(2) A modification under subsection (1) must not change the penalty for an offence.
(3) The regulations may provide that some or all of the provisions of:
(a) Division 5 of Part 7.12 of the Corporations Law of the Australian Capital Territory as in force at the commencement of this Part; and
(b) Part 7.12 of the Corporations Regulations of the Australian Capital Territory as then in force;
apply, with such modifications as are prescribed, in relation to the Part 31 entity during the transitional period.
(4) The provisions so applied (the applied provisions) have effect as if:
(a) they were provisions of this Act; and
(b) interests in the Part 31 entity were prescribed interests for the purposes of the applied provisions.
(5) Subject to subsection (6), the regulations may provide penalties for offences against the applied provisions not exceeding 10 penalty units.
(6) If:
(a) the regulations create an offence against an applied provision; and
(b) the maximum pecuniary penalty for an offence against the corresponding provision of the Corporations Law or Corporations Regulations of the Australian Capital Territory exceeds the penalty that, by subsection (5), could be imposed for an offence against the applied provision;
the regulations may provide a maximum penalty for an offence against the applied provision not exceeding the maximum pecuniary penalty referred to in paragraph (b), but nothing in this subsection enables the regulations to provide penalties of imprisonment.
(7) Regulations made for the purposes of this section may be expressed to apply to any fund or trust that is, for the purposes of the application of this Division in relation to the fund or trust, the Part 31 entity.
(8) In this section:
modifications includes additions, omissions and substitutions.
(1) If a body corporate becomes the trustee of the Part 31 entity under this Division, the body corporate must, as soon as practicable, give each member of the entity a notice about the appointment.
(2) The notice is to be in a form approved by ASIC.
(3) The body corporate must not, without reasonable excuse, contravene this section.
Penalty: 250 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.
A person is not liable in a civil action or civil proceeding in relation to an act done under this Division.
This Division (including regulations made for the purposes of section 376) has effect despite anything in:
(a) any other Part of this Act; or
(b) the Corporations Law or Corporations Regulations of a State or internal Territory; or
(c) any other law; or
(d) the governing rules of the Part 31 entity.
The regulations may make provisions, not inconsistent with Division 2, relating to the transition to the scheme provided for in this Act.
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.
(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.
(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.
(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.
(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.
