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Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (135 of 2020)

Schedule 9   Adjustment of APRA and ASIC's roles in superannuation

Part 1   Adjustments relating to industry supervision

Superannuation Industry (Supervision) Act 1993

1   Sections 4 and 6

Repeal the sections, substitute:

4 Simplified outline of supervision responsibilities

Sections 5 and 6 set out the functions, powers and duties of APRA, ASIC and the Commissioner of Taxation in administering this Act.

APRA is generally responsible for prudential regulation and member outcomes. It is also generally responsible for licensing and supervision of RSE licensees.

ASIC is generally responsible for protecting consumers from harm, market integrity, disclosure and record keeping.

The Commissioner of Taxation is generally responsible for self managed superannuation funds, data and payment standards, tax file numbers and the compassionate release of superannuation amounts.

5 General administration of Act

(1) Subject to this section, the general administration of a provision is determined under the general administration table in section 6. If a provision is covered by column 1 of the table, the general administration of the provision is conferred on a person, body or bodies in accordance with column 3 of the table.

(2) Powers and duties are also conferred by the provisions referred to in subsection (3) of this section on:

(a) APRA for the purposes of APRA's administration of the provisions it administers (including provisions both APRA and ASIC administer); and

(b) ASIC for the purposes of ASIC's administration of the provisions it administers (including provisions both APRA and ASIC administer); and

(c) the Commissioner of Taxation for the purposes of the administration of the provisions the Commissioner of Taxation administers.

(3) The provisions are Parts 1, 25, 26, 27, 28, 29, 29A and 30, but not including any of the following provisions:

(a) Division 3 of Part 25 (see instead item 58 of the general administration table);

(b) sections 328 and 332 (see instead subsection (8) of this section).

Note: Generally APRA, ASIC and the Commissioner of Taxation are not referred to in these provisions, Regulator is used instead. See the definition of Regulator in section 10.

Special rules about ASIC

(4) Despite paragraph (2)(b):

(a) powers and duties conferred on ASIC by section 255 are conferred only in relation to persons who are relevant persons in relation to superannuation entities; and

(b) powers and duties conferred on ASIC by section 256 are conferred only in relation to the affairs of superannuation entities.

Special rules about the Commissioner of Taxation

(5) Despite paragraph (2)(c):

(a) powers and duties conferred on the Commissioner of Taxation by Divisions 4 to 8 of Part 25 (other than section 285) are conferred only in relation to:

(i) persons who are relevant persons in relation to superannuation entities; and

(ii) the affairs of superannuation entities; and

(b) powers and duties are not conferred on the Commissioner of Taxation by section 342 (about pre-1 July 88 funding credits and debits).

(6) Nothing in subsection (5) limits the powers and duties conferred on the Commissioner of Taxation by Part 25 (as mentioned in paragraph (2)(c)) in relation to contributing employers.

Note: The Commissioner of Taxation's powers and duties under Part 25 in relation to contributing employers are found in sections 255 and 256, with related provisions in Divisions 7, 8 and 9 of that Part.

(7) To avoid doubt, for the purposes of the definition of taxation law in subsection 995-1(1) of the Income Tax Assessment Act 1997, the Commissioner of Taxation is taken to have the general administration of a provision of this Act or the regulations that confers powers and duties on the Commissioner of Taxation.

Note: An effect of a provision being administered by the Commissioner of Taxation is that people who acquire information under the provision are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.

Modification and exemption powers

(8) Powers and duties are also conferred by sections 328 and 332 on:

(a) APRA for the purposes of the administration of provisions administered by APRA (including provisions both APRA and ASIC administer)or by the Commissioner of Taxation; and

(b) ASIC for the purposes of the administration of provisions administered solely by ASIC.

Directions

(9) The Minister may, by legislative instrument, give APRA or ASIC directions about the performance or exercise of its functions or powers under this Act.

6 General administration table

(1) The following table has effect for the purposes of subsection 5(1).

Note: Under that subsection, the general administration of a provision referred to in column 1 of the table is conferred as set out in column 3.

General administration table

     

Item

Column 1
Provisions

Column 2
Topic

Column 3
Regulator

1

Part 2A, to the extent it is not covered by item 2 of this table

licensing of RSE licensees

APRA

2

Section 29JCA

false representation about RSE status

both APRA and ASIC

3

Part 2B, to the extent it is not covered by item 4 of this table

registrable superannuation entities

APRA

4

Sections 29P to 29QC

obligations of RSE licensees

ASIC

5

Part 2C, to the extent it is not covered by item 6 of this table

MySuper

APRA

6

Subsection 29SAA(3)

MySuper notice requirements

ASIC

7

Part 3, to the extent it is not covered by item 8 or 9 of this table

operating standards

(a) ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and

(b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(c) APRA, to the remaining extent

8

Division 3 of Part 3

portability forms

the Commissioner of Taxation

9

Regulations made under Part 3

release on compassionate grounds

the Commissioner of Taxation, to the extent that the regulations relate to the making and notification of determinations that an amount of benefits in a superannuation entity may be released on compassionate grounds

10

Part 3A

prudential standards

APRA

11

Part 3B, to the extent it is not covered by item 12 or 13 of this table

superannuation data and payment

APRA

12

Divisions 1 and 4 of Part 3B

superannuation data and payment

the Commissioner of Taxation

13

Division 2 of Part 3B

compliance with superannuation data and payment regulations and standards

(a) the Commissioner of Taxation, to the extent the provisions relate to any of the following:

(i) employers;

(ii) payments and information given to the Commissioner of Taxation;

(iii) self managed superannuation funds; and

(b) APRA, to the remaining extent

14

Part 4

accounts, audit and reporting obligations for superannuation entities

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

15

Part 5, to the extent it is not covered by item 16 of this table

notices about complying fund status

(a) the Commissioner of Taxation, to the extent the provisions do any of the following:

(i) relate to self managed superannuation funds;

(ii) require or permit the Commissioner of Taxation to do something; and

(b) APRA, to the remaining extent

16

Sections 40 and 41

notices about complying superannuation fund status

(a) in relation to an entity that is a self managed superannuation fund on the last day of the most recently ended year of income - the Commissioner of Taxation; and

(b) in relation to an entity that is not a self managed superannuation fund on the last day of the most recently ended year of income - APRA; and

(c) subject to paragraphs (a) and (b), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(d) APRA, to the remaining extent

17

Part 6, to the extent it is not covered by items 18 to 21 of this table

governing rules of superannuation entities

(a) ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and

(b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(c) APRA, to the remaining extent

18

Sections 52, 52A and 54B

covenants and consequences of breaching covenants

both APRA and ASIC

19

Sections 52B and 52C

covenants of SMSFs

the Commissioner of Taxation

20

Section 54A

prescribed covenants

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) both APRA and ASIC, to the remaining extent

21

Section 60A

dismissal of trustee of public offer entity

APRA

22

Part 7, to the extent it is not covered by items 23 to 26 of this table

regulated superannuation funds

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

23

Sections 62 and 68

sole purpose test;

victimisation of trustees

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) both APRA and ASIC, to the remaining extent

24

Section 64A

compliance with tribunal determination

(a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and

(b) ASIC, to the remaining extent

25

Section 68A

use of goods or services to influence employers

ASIC

26

Section 68B

promotion of illegal early release schemes

(a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and

(b) ASIC, to the remaining extent

27

Part 8

in-house asset rules

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

28

Part 9

equal representation of employers and members - employer-sponsored funds

APRA

29

Part 10

approved deposit funds

APRA

30

Part 11

pooled superannuation trusts

APRA

31

Part 11A, to the extent it is not covered by item 32 of this table

general fees rules

APRA

32

Section 99F

cost of financial product advice

ASIC

33

Part 12, to the extent it is not covered by items 34 to 36 of this table

duties of trustees and investment managers

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

34

Sections 101 and 103

dispute resolution systems;

duty to keep minutes and records

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) ASIC, to the remaining extent

35

Section 105

duty to keep reports

(a) ASIC, to the extent the provision relates to disclosure or record-keeping (see subsection (2)); and

(b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and

(c) APRA, to the remaining extent

36

Section 108A

duty to identify multiple accounts

both APRA and ASIC

37

Part 14

other provisions applying to superannuation entities

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

38

Part 15, to the extent it is not covered by item 39 of this table

standards for trustees, custodians and investment managers

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

39

Section 126K

disqualified persons

(a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and

(b) both APRA and ASIC, to the remaining extent

40

Part 16, to the extent it is not covered by items 41 to 43 of this table

actuaries and auditors

(a) ASIC, to the extent the provisions relate to auditors of self managed superannuation funds; and

(b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(c) APRA, to the remaining extent

41

Section 128N

actuaries and auditors - ASIC may disclose information

ASIC

42

Section 128P

actuaries and auditors - Commissioner of Taxation may refer matter to ASIC

the Commissioner of Taxation

43

Division 2 of Part 16

actuaries and auditors - obligations

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

44

Part 16A

APRA's powers to issue directions

APRA

45

Part 17, to the extent it is not covered by item 46 of this table

suspension or removal of trustee

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

46

Section 140

notice by acting trustee

APRA

47

Part 18

amalgamation of funds

APRA

48

Part 19

public offer entities

ASIC

49

Part 20

contraventions relating to SMSFs

the Commissioner of Taxation

50

Part 21

civil and criminal consequences of contravening civil penalty provisions

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) both APRA and ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by both those bodies; and

(c) ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by ASIC; and

(d) APRA, to the remaining extent

51

Part 22

infringement notices

APRA

52

Part 23

financial assistance

APRA

53

Part 24, to the extent it is not covered by item 54 of this table

eligible rollover funds

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

54

sections 242K, 242L and 242M

obligations relating to eligible rollover funds

both APRA and ASIC

55

Part 24A

pre-1 July 1995 transitional provisions

APRA

56

Part 24B

small funds

as provided by the provisions of Part 24B

57

Part 25, to the extent it is not covered by item 58 of this table

monitoring and investigation

see section 5

58

Division 3 of Part 25

monitoring and investigation - APRA requirements

APRA

59

Part 25A, to the extent it is not covered by item 60 of this table

tax file numbers

(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and

(b) APRA, to the remaining extent

60

Divisions 1 and 3A of Part 25A, section 299NA and subsection 299U(2A)

tax file numbers

the Commissioner of Taxation

61

Part 32

transitional provisions for tax file numbers

APRA

Note: Subsection 10(4) extends the meaning of self managed superannuation fund for the purposes of this section, sections 5, 42 and 42A, and Part 20.

Disclosure and record-keeping provisions

(2) For the purposes of the general administration table, a provision relates to disclosure or record-keeping to the extent to which the provision relates to:

(a) keeping of reports to members of, or beneficiaries in, funds; or

(b) disclosure of information to members of, or beneficiaries in, funds; or

(c) disclosure of information about funds (including disclosure of information to ASIC but not including disclosure of information to APRA); or

(d) any other matter prescribed by regulations for the purposes of this paragraph.


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