Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Chapter 8 - Miscellaneous
Overview
8.1 Part8 of this Bill contains miscellaneous provisions. [Clauses 42to50]
8.2 The purpose of the provisions is to provide for:
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- publication of information in the Commonwealth unclaimed money register and the Commonwealth lost members register for the purpose of alerting people to their superannuation benefits;
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- access and information provisions consistent with access and information provisions in other Acts administered by the Commissioner of Taxation (the Commissioner);
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- the keeping of records by superannuation providers;
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- approved forms to specify the information required for the unclaimed money and lost members registers;
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- regulations; and
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- other miscellaneous provisions.
Act not to operate so as to contravene Constitution
8.3 The Superannuation (Unclaimed Money and Lost Members) Act 1999 (the Act) does not apply in any circumstances where it would have the consequence of contravening the Constitution. [Clause 42]
Application of the Criminal Code
8.4 Chapter2 of the Criminal Code which deals with the general principles of criminal responsibility, applies to all offences against the Act. [Clause 43]
Publication of information in registers
8.5 The Commissioner may authorise information in the Commonwealth unclaimed money register and the Commonwealth lost members register to be:
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- published in the Gazette ;
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- made available to the public (whether or not on the payment of a fee) in such other manner as the Commissioner determines; or
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- made available to a particular person (whether or not on the payment of a fee) in such manner as the Commissioner determines.
[Clause 44]
8.6. The authorisation may extend to so much of the information in the registers as the Commissioner considers appropriate. The Commissioner is explicitly prohibited from including tax file numbers in the publication. [Clause 44]
8.7 The Commissioner may, by writing authorise a person who is an officer or employee under the Public Service Act 1922 to be an authorised officer for the purposes of a provision or provisions of the Act. [Clause 45]
Access to premises and obtaining information and documents
8.8 This Bill contains provisions dealing with access to premises and information gathering powers. Similar provisions are found in other Acts administered by the Commissioner for example, sections263 and 264 of the Income Tax Assessment Act 1936 (ITAA1936). The provisions are necessary for the Commissioner to ensure compliance with the Act. [Clauses 46and47]
8.9 The access and information gathering powers may be used, for example, to ensure that a superannuation provider has reported the information it has in respect of a lost member or a member with unclaimed money. This information is critical to the function of the registers and in such a case, it may be necessary for the Commissioner to inspect documents which may not otherwise be available for inspection if access and information gathering powers were not included in the Act.
8.10 Under these powers, an authorised officer must be given entry at any reasonable time, to land or premises. The officer must also be given full and free access to all books, records and other documents held by any person, and right to inspect, examine or make copies there from [subclause 46(1)] . An authorised officer is an officer or employee within the meaning of the Public Service Act 1922 who has been authorised in writing by the Commissioner to carry out certain duties [Clause 45] .
8.11 The officer is not entitled to remain on the land or premises unless written authority signed by the Commissioner is produced at the request of the occupier. [subclause 46(2)]
8.12 The occupier of land or premises entered or proposed to be entered by an authorised officer is required to provide the officer with all reasonable facilities and assistance to carry out official duties. [subclause 46(3)] For example, an authorised officer will be entitled to reasonable use of photocopying, telephone, facsimile and light and power facilities and of work space and facilities to extract relevant information stored on computer. In addition, the officer will be entitled to reasonable assistance in the form of, for example, advice as to where relevant documents are located and access to areas where such documents are located.
8.13 The maximum penalty on conviction for failure to comply with the access to premises provisions is a fine of 10 penalty units. [subclause 46(4)]
8.14 The Commissioner will also be able to require, by notice in writing, any person to:
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- give information on oath or otherwise;
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- attend before the Commissioner and answer questions on oath or otherwise; or
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- produce any documents in the custody or under the control of that person.
[subclauses 47(1),(2) and(3)]
8.15 The regulations must prescribe scales of expenses to be allowed to persons required to attend before the Commissioner. [subclause 47(4)]
8.16 This Bill imposes certain record keeping requirements on superannuation providers [Clause 48] . Superannuation providers must keep records of all transactions and acts engaged in under the Act [subclause 48(1)] .
8.17 The records must be kept in writing in the English language or, if not in writing (eg. in an electronic medium such as magnetic tape or computer disc), in a form which is readily accessible and convertible into writing in English. [subclause 48(2)]
8.18 The records must be retained until the end of 5 years or the completion of the transactions or acts to which those records relate (eg. this may involve the cessation of the member being a lost member of the provider), whichever is the later. [subclause 48(3)]
8.19 A superannuation provider does not have to keep records if the Commissioner notifies the provider that it is not required to do so. [subclause 48(4)]
8.20 The maximum penalty on conviction for failure to comply with the record keeping requirements is a fine of not more than 60 penalty units. [subclause 48(5)]
8.21 A notice, application, statement, or other document is in an approved form if it:
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- is in a form approved in writing by the Commissioner;
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- contains all the required information; and
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- is lodged at the place and in the manner that the Commissioner requires.
[subclause 49(1)]
8.22 An approved form may extend to electronic transmissions, mediums and forms and may apply to more than one notice, application, statement or other document. [subclauses 49(2) and(3)]
8.23 This Bill provides that the Governor-General may make regulations for the purposes of the Act. [subclause 50(1)]
8.24 The regulations may also make provision for the Commissioner to keep one or more registers that relate to matters arising under the Act or regulations. This will provide flexibility for sub-registers or additional registers (if necessary) to be established by regulations. [subclause 50(2)]