PART 7
-
PROVISIONS APPLYING ONLY TO REGULATED SUPERANNUATION FUNDS
SECTION 65
LENDING TO MEMBERS OF REGULATED SUPERANNUATION FUND PROHIBITED
65(1)
Prohibition.
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.
Note:
Section
166
imposes an administrative penalty for a contravention of subsection
(1)
by a trustee in relation to a self managed superannuation fund.
History
S 65(1) amended by No 11 of 2014, s 3 and Sch 2 item 9, by inserting a note at the end, applicable to contraventions that occur on or after 1 July 2014.
S 65(1) amended by No 53 of 2004, s 3 and Sch 2 item 88, by substituting
"
A trustee
"
for
"
The trustee
"
, effective 1 July 2004.
65(2)
Exception
-
private sector funds.
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.
65(3)
Exception
-
public sector funds.
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.
65(4)
Variation of governing rules.
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.
65(5)
Civil penalty provision.
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.
65(6)
(Repealed by No 134 of 2008)
History
S 65(6) repealed by No 134 of 2008, s 3 and Sch 4 item 14, effective 1 July 2008. No 134 of 2008, s 3 and Sch 4 item 16 contains the following application provision:
Application of amendments of the
Superannuation Industry (Supervision) Act 1993
16(1)
Subject to subitems (2) and (3), the amendments of the
Superannuation Industry (Supervision) Act 1993
made by this Schedule apply to the 2008-2009 year of income and later years.
Amendments affecting section 65
16(2)
The amendments of the
Superannuation Industry (Supervision) Act 1993
made by this Schedule apply for the purposes of the operation of section 65 of the Act in relation to:
(a)
money lent on or after the day on which this Act receives the Royal Assent; and
(b)
any other financial assistance commenced to be given on or after the day on which this Act receives the Royal Assent.
Amendments affecting section 66
16(3)
The amendments of the
Superannuation Industry (Supervision) Act 1993
made by this Schedule apply for the purposes of the operation of section
66
of that Act in relation to assets acquired on or after the day on which this Act receives the Royal Assent.
No 134 of 2008, s 3 and Sch 4 item 17 contains the following transitional provision:
Transitional provision
-
in-house assets
17(1)
If:
(a)
an asset of a superannuation fund consists of:
(i)
a loan or an investment made before the day on which this Act receives the Royal Assent; or
(ii)
a loan or an investment made after that day under a contract entered into before that day; or
(iii)
an asset that becomes subject to a lease or a lease arrangement before that day; and
(b)
apart from this item, the asset would be an in-house asset of the fund at any time after 1 July 2008; and
(c)
the asset would be an in-house asset of the fund only because of the amendments of the
Superannuation Industry (Supervision) Act 1993
(the
SIS Act
) made by this Schedule;
then, for the purposes of the operation of Part
8
of the SIS Act on or after 1 July 2008, the asset is not an in-house asset of the fund.
17(2)
For the purposes of subparagraph (1)(a)(iii), if:
(a)
a lease or a lease arrangement, enforceable by legal proceedings in respect of an asset was entered into before the day on which this Act receives the Royal Assent; and
(b)
the lease or lease arrangement came into force on or after that day;
the asset is taken to have become subject to the lease or lease arrangement before that day.
S 65(6) formerly read:
65(6)
Definition.
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).
History
Definition of
"
relative
"
substituted by No 199 of 1999.
65(7)
Effect of Part 8.
Nothing in Part
8
limits the operation of this section.
History
S 65(7) inserted by No 199 of 1999.
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