Superannuation Industry (Supervision) Act 1993

PART 16A - APRA ' S POWERS TO ISSUE DIRECTIONS  

Division 1 - General powers to issue directions  

SECTION 131D   APRA MAY GIVE DIRECTIONS TO AN RSE LICENSEE IN RELATION TO LICENSEE ' S OWN CONDUCT  

131D(1)    
APRA may give an RSE licensee a direction of a kind mentioned in subsection (2) if APRA has reason to believe that:

(a)    

the RSE licensee has contravened a provision of:

(i) this Act; or

(ii) the regulations; or

(iii) the prudential standards; or

(iv) the Financial Sector (Collection of Data) Act 2001 ; or

(v) Chapter 2M of the Corporations Act 2001 ; or

(b)    the RSE licensee is likely to contravene a provision mentioned in paragraph (a) , and the direction is reasonably necessary to deal with one or more prudential matters in relation to the RSE licensee; or

(c)    the RSE licensee has contravened a condition or direction under this Act or the Financial Sector (Collection of Data) Act 2001 ; or

(ca)    the RSE licensee, or the registrable superannuation entity of the RSE licensee, has failed to meet a benchmark that relates to the licensee or entity; or

(d)    the direction is necessary in the interests of beneficiaries of a registrable superannuation entity of the RSE licensee; or

(e)    the RSE licensee is, or is about to become, unable to meet its liabilities (whether as trustee of a registrable superannuation entity or otherwise); or

(f)    there is, or there might be, a material risk to the security of the assets of the RSE licensee (whether held as trustee of a registrable superannuation entity or otherwise); or

(g)    there has been, or there might be, a material deterioration in the financial condition of:

(i) the RSE licensee; or

(ii) a registrable superannuation entity of which it is trustee; or

(h)    the RSE licensee is conducting:

(i) its affairs; or

(ii) the affairs of a registrable superannuation entity of which it is trustee;

in an improper or financially unsound way; or

(i)    the failure to issue a direction would materially prejudice the interests or reasonable expectations of beneficiaries of a registrable superannuation entity of the RSE licensee; or

(j)    the RSE licensee is conducting:

(i) its affairs; or

(ii) the affairs of a registrable superannuation entity of which it is trustee;

in a way that may cause or promote instability in the Australian financial system.

131D(2)    
APRA may give a direction to do one or more of the following:

(a)    to comply with the whole or a part of:

(i) this Act; or

(ii) the regulations; or

(iii) the prudential standards; or

(iv) the Financial Sector (Collection of Data) Act 2001 ;

(b)    to comply with the whole or a part of a condition or direction referred to in paragraph (1)(c) ;

(c)    if the RSE licensee is a body corporate, to do one or more of the following:

(i) to remove a responsible officer of the RSE licensee from office;

(ii) to ensure that a responsible officer of the RSE licensee does not take part in the management or conduct of the business of the RSE licensee, or the business of a registrable superannuation entity of the RSE licensee, except as permitted by APRA;

(iii) to appoint a person as a responsible officer of the RSE licensee for such term as APRA directs;

(d)    to order an audit of:

(i) the affairs of the RSE licensee; or

(ii) the affairs of a registrable superannuation entity of the RSE licensee;

at the expense of the RSE licensee, by an auditor chosen by APRA;

(e)    to remove an auditor of the RSE licensee, or of a registrable superannuation entity of the RSE licensee, from office and appoint another auditor to hold office for such term as APRA directs;

(f)    to order an actuarial investigation of the affairs of a registrable superannuation entity of the RSE licensee, at the expense of the RSE licensee and by an actuary chosen by APRA;

(g)    to remove an actuary of a registrable superannuation entity of the RSE licensee from office and appoint another actuary to hold office for such term as APRA directs;

(h)    not to accept, or to cease to accept (permanently or temporarily), contributions to a registrable superannuation entity of the RSE licensee;

(i)    not to borrow any amount;

(j)    not to pay or transfer any amount or asset to any person, or create an obligation (contingent or otherwise) to do so;

(k)    not to undertake any financial obligation (contingent or otherwise) on behalf of any other person;

(l)    not to discharge any liability of:

(i) the RSE licensee; or

(ii) a registrable superannuation entity of the RSE licensee;

(m)    to make changes to the RSE licensee ' s systems, business practices or operations (including the RSE licensee ' s systems business practices or operations in relation to a registrable superannuation entity of the RSE licensee);

(n)    to do, or refrain from doing, anything else in relation to the affairs of:

(i) the RSE licensee; or

(ii) a registrable superannuation entity of the RSE licensee.

131D(3)    
A direction under paragraph (2)(j) not to pay or transfer any amount or asset does not apply to the payment or transfer of money pursuant to an order of a court or a process of execution.

131D(4)    
Without limiting the generality of subsection (2) , a direction referred to in a paragraph of that subsection may:

(a)    deal with some only of the matters referred to in that paragraph; or

(b)    deal with a particular class or particular classes of those matters; or

(c)    make different provision with respect to different matters or different classes of matters.

131D(5)    
The direction may deal with the time by which, or period during which, it is to be complied with.

131D(6)    

If APRA gives a direction under paragraph (2)(e) , APRA must:

(a)    notify ASIC of the direction; and

(b)    do so as soon as practicable after giving the direction.