PART 9
-
EQUAL REPRESENTATION OF EMPLOYERS AND MEMBERS
-
EMPLOYER-SPONSORED FUNDS
[
CCH Note:
Part 9 has effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by amending s 92 and inserting s 92A and 92B
-
see Modification Declaration No 10 under s
92
,
92A
and
92B
.]
SECTION 92
POST-30 JUNE 1995 RULES
-
FUNDS WITH MORE THAN 6, BUT FEWER THAN 50, MEMBERS
92(1)
Application.
This section applies to a standard employer-sponsored fund with more than 6, but fewer than 50, members.
History
S 92(1) amended by No 47 of 2021, s 3 and Sch 1 item 27, by substituting
"
more than 6
"
for
"
more than 4
"
, effective 1 July 2021.
92(2)
Post-30 June 1995.
This section applies on and after 1 July 1995.
92(3)
Public offer funds.
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.
History
S 92(3) amended by No 140 of 1994.
92(4)
Non-public offer funds.
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.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28, 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after para (b):
; or
(c)
an arrangement in relation to the management and control of the fund that:
(i)
has been agreed between:
(A)
a majority of the members of the fund; and
(B)
the employer or employers of those members; and
(ii)
is approved by the Commissioner in writing.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
History
S 92(4) amended by No 160 of 2000, s 3 and Sch 3 item 8, by inserting
"
; or
'
'
at the end of para (b), and by inserting para (c), effective 18 January 2001.
92(4A)
Imposing conditions on, and revoking, subparagraph (4)(c)(ii) approvals.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after subsection
92(4)
:
92(4A)
Imposing conditions on, and revoking, subparagraph (4)(c)(ii) approvals.
An approval mentioned in subparagraph (4)(c)(ii):
(a)
is subject to any conditions specified in the instrument of approval; and
(b)
may be revoked by the Commissioner by written notice given to the holder of the approval.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
92(4B)
Varying the conditions of subparagraph (4)(c)(ii) approvals.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after subsection
92(4A)
:
92(4B)
Varying the conditions of subparagraph (4)(c)(ii) approvals.
The Commissioner may vary the conditions of an approval mentioned in subparagraph (4)(c)(ii) by written notice given to the holder of the approval.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
92(4A)
Arrangement approval.
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.
History
S 92(4A) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(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.
History
S 92(4B) amended by No 53 of 2004, s 3 and Sch 2 item 116, by substituting
"
a trustee of the fund
'
'
for
"
the trustee
'
'
in para (b), effective 1 July 2004.
S 92(4B) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(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.
History
S 92(4C) amended by No 53 of 2004, s 3 and Sch 2 item 116, by substituting
"
a trustee of the fund
'
'
for
"
the trustee
'
'
in para (b), effective 1 July 2004.
S 92(4C) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(4D)
APRA may vary or revoke the conditions of the arrangement approval by written notice given to a trustee of the fund.
History
S 92(4D) amended by No 53 of 2004, s 3 and Sch 2 item 117, by substituting
"
a trustee of the fund
'
'
for
"
the trustee
'
'
, effective 1 July 2004.
S 92(4D) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(5)
Alternative agreed representation rule.
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 RSE licensee; and
(ca)
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.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting para 92(5)(c) and substituting:
(c)
the trustee is an approved trustee; and
(ca)
the trustee
'
s approval under section 26 specifies that the trustee is 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; and
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
History
S 92(5) amended by No 53 of 2004, s 3 and Sch 1 items 76 and 77, by omitting
"
an approved trustee (under section 26) or
"
after
"
the trustee is
"
in para (c) and substituting para (ca), effective 1 July 2006. Para (ca) formerly read:
(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
S 92(5) amended by No 53 of 2004, s 3 and Sch 1 items 50 and 51, by inserting
"
or an RSE licensee
'
after
"
(under section 26)
'
'
in para (c) and substituting para (ca), effective 1 July 2004. Para (ca) formerly read:
(ca)
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; and
S 92(5) amended by No 160 of 2000, s 3 and Sch 3 items 10 and 11, by substituting paras (a) and (c), and by inserting para (ca). Paras (a) and (c) formerly read:
(a)
there is a single corporate trustee of the fund; and
(c)
there is in force an approval of the trustee under subsection (6); and
92(5A)
Commissioner must have regard to guidelines when deciding whether to grant approvals.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after subsection
92(5)
:
92(5A)
Commissioner must have regard to guidelines when deciding whether to grant approvals.
When deciding whether or not to:
(a)
approve an arrangement under subparagraph (4)(c)(ii); or
(b)
specify in a trustee
'
s approval under section
26
that the trustee is approved for the purposes of subsection (5);
the Commissioner must have regard to any written guidelines determined by the Commissioner under this subsection.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
92(6)
(Repealed by No 53 of 2004)
History
S 92(6) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(6) formerly read:
92(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.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (6).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(6) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(6) formerly read:
92(6)
Approval of trustee.
A body corporate may apply for an approval under this subsection.
92(7)
(Repealed by No 53 of 2004)
History
S 92(7) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(7) formerly read:
92(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.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (7).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(7) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(7) formerly read:
92(7)
Application for approval.
The application must be in writing and must be given to APRA.
S 92(7) amended by No 54 of 1998.
92(8)
(Repealed by No 53 of 2004)
History
S 92(8) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(8) formerly read:
92(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.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting s 92(8).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(8) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(8) formerly read:
92(8)
Information to accompany application.
The application must be accompanied by such information as APRA requires.
S 92(8) amended by No 54 of 1998.
92(9)
(Repealed by No 53 of 2004)
History
S 92(9) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(9) formerly read:
92(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.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (9).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(9) amended by No 53 of 2004, s 3 and Sch 1 item 52, by inserting
"
if the trustee is an approved trustee,
'
'
after
"
and 29
'
'
, effective 1 July 2004.
S 92(9) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(9) formerly read:
92(9)
Further information.
APRA may refuse to consider the application unless the applicant gives APRA such further information about the application as APRA requires.
S 92(9) amended by No 54 of 1998.
92(10)
(Repealed by No 160 of 2000)
History
S 92(6) to (9) substituted for s 92(6) to (12) by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(10) formerly read;
92(10)
Decision.
After considering the application, APRA must:
(a)
grant the approval; or
(b)
refuse to grant the approval.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (10).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(10) amended by No 54 of 1998.
92(11)
(Repealed by No 160 of 2000)
History
S 92(6) to (9) substituted for s 92(6) to (12) by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(11) formerly read:
92(11)
Reasons for refusing approval.
If APRA makes a decision refusing an application for the grant of an approval, APRA must cause to be given to the applicant a written notice setting out the decision and giving the reasons for that decision.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting s 92(11).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(11) amended by No 54 of 1998.
92(12)
(Repealed by No 160 of 2000)
History
S 92(6) to (9) substituted for s 92(6) to (12) by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(12) formerly read:
92(12)
Revocation of approval.
APRA may, by written notice given to the holder of an approval, revoke the approval.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting s 92(12).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(12) amended by No 54 of 1998.
92(13)
Transitional.
If, at a particular time, the number of members of a fund increases from a number less than 7 to 7 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.
History
S 92(13) amended by No 47 of 2021, s 3 and Sch 1 item 28, by substituting
"
less than 7 to 7 or more
"
for
"
less than 5 to 5 or more
"
, effective 1 July 2021.
S 92(13) inserted by No 144 of 1995.
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