Superannuation Industry (Supervision) Act 1993

Pt 24B heading amended by No 47 of 2021, s 3 and Sch 1 item 32, by substituting " NO MORE THAN 6 MEMBERS " for " FEWER THAN 5 MEMBERS " , effective 1 July 2021.

Pt 24B inserted by No 121 of 1999, s 3 and Sch 1 item 56, effective 8 October 1999.

No 121 of 1999, Sch 1 contained the following transitional and saving provisions:

PART 3 - TRANSITIONAL AND SAVING PROVISIONS

Transitional provision - no contravention of Act during transition period in certain circumstances  
133(1)
Despite the amendments made by this Schedule, a person does not contravene this Act or the regulations in respect of conduct engaged in by the person in relation to a superannuation fund if:
(a) immediately before the later of:

(i) the beginning of the transition period; and

(ii) the day on which this Act received the Royal Assent;

the superannuation fund was an excluded superannuation fund; and
(b) the person engaged in the conduct during the transition period; and
(c) the person engaged in the conduct at a time when the superannuation fund had fewer than 5 members, but was not a self managed superannuation fund; and
(d) the person's engaging in the conduct would not have been a contravention of this Act or the regulations if the fund had been a self managed superannuation fund at the time the person engaged in the conduct.

133(2)
In this item:

excluded superannuation fund
has the meaning given by the Superannuation Industry (Supervision) Act 1993 as in force immediately before the commencement of this item.

transition period
means the period:

(a) beginning on 1 July 1999; and

(b) ending at the end of 31 March 2000.

133(3)
In this item, a reference to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Transitional provision relating to annual returns - application of amendments  
134(1)
Subject to item 135, the amendments made by items 31 and 32 of Part 1 of this Schedule apply to the 1999-2000 year of income and later years of income.

134(2)
Despite items 31 and 32 of Part 1 of this Schedule, section 36 continues to apply to a return in respect of the 1998-99 year of income, as if the amendments made by those items had not been made.
Special rule in relation to 1999-2000 year of income  
135(1)
If a superannuation fund was both:
(a) a self managed superannuation fund at any time during the 1999-2000 year of income; and
(b) a superannuation fund other than a self managed superannuation fund at another time during the 1999-2000 year of income;

the trustee of the fund is not required to submit an annual return for that year of income under both sections 36 and 36A of the Superannuation Industry (Supervision) Act 1993 .

135(2)
The trustee of the fund must submit an annual return under section 36 of that Act for the 1999-2000 year of income if:
(a) where the superannuation fund ceased to exist during the year of income - the fund was not a self managed superannuation fund on the day on which it ceased to exist; or
(b) otherwise - the fund was not a self managed superannuation fund on the last day of the year of income.

135(3)
The superannuation fund must submit an annual return under section 36A of that Act for the 1999-2000 year of income if:
(a) where the fund ceased to exist during the year of income - the fund was a self managed superannuation fund on the day on which it ceased to exist; or
(b) otherwise - the fund was a self managed superannuation fund on the last day of the year of income.
Transfer of records  
136(1)
The Treasurer may transfer from APRA to the Commissioner of Taxation records that relate to the functions of the Commissioner of Taxation.

136(2)
This item does not authorise the Commonwealth record to be transferred, or otherwise dealt with, except in accordance with the Archives Act 1983 .

136(3)
In this item:

Commonwealth record
and record
have the same meanings as in the Archives Act 1983 .

Div 2 repealed by No 145 of 2010, s 3 and Sch 2 item 85, effective 17 December 2010.

Div 2 inserted by No 121 of 1999, s 3 and Sch 1 item 56, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

S 252C repealed by No 145 of 2010, s 3 and Sch 2 item 85, effective 17 December 2010. No 145 of 2010, Sch 2 item 127, contained the following saving provision:

127 Saving - section 252C of the Superannuation Industry (Supervision) Act 1993  
(1)
This item applies to an entity who acquired, before 8 October 1999, protected information (within the meaning of section 252C of the Superannuation Industry (Supervision) Act 1993 as in force immediately before the commencement of item 85 of this Schedule).

(2)
Despite the repeal of section 252C of the Superannuation Industry (Supervision) Act 1993 by item 85 of this Schedule, that section continues to apply to the entity after the commencement of this item, in relation to the information, as if the repeal had not happened.

S 252C formerly read:

SECTION 252C SECRECY - GENERAL OBLIGATIONS  
252C(1)
In this section:

Act covered by this section
means any of the following Acts:

(a) the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 ;

(b) the Superannuation (Self Managed Superannuation Funds) Supervisory Levy Imposition Act 1991 ;

(c) any other Act prescribed by the regulations for the purposes of this paragraph.

court
includes a tribunal, authority or person having the power to require the production of documents or the answering of questions.

financial sector supervisory agency
means a person or body having the function, in Australia or in a foreign country, of supervising or regulating financial institutions.

officer
means:

(a) the Commissioner of Taxation; or

(b) a taxation officer; or

(c) any other person who, because of his or her employment, or in the course of that employment:

(i) has acquired protected information; or

(ii) has had access to protected documents;

other than an employee of the body to which the information or document relates.

protected document
means a document given or produced (whether before or after the commencement of this section) under, or for the purposes of, this Act or an Act covered by this section and containing information relating to the affairs of:

(a) a self managed superannuation fund; or

(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related to a body corporate that is the trustee of a self managed superannuation fund; or

(c) a person who has been, is, or proposes to be, a member of a self managed superannuation fund;

other than information that has already been lawfully made available to the public from other sources.

protected information
means information disclosed or obtained (whether before or after the commencement of this section) under, or for the purposes of, this Act or an Act covered by this section and relating to the affairs of:

(a) a self managed superannuation fund; or

(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related to a body corporate that is the trustee of a self managed superannuation fund; or

(c) a person who has been, is, or proposes to be, a member of a self managed superannuation fund;

other than information that has already been lawfully made available to the public from other sources.

252C(2)
A person who is or has been an officer is guilty of an offence if:

(a) the person directly or indirectly:

(i) discloses information acquired in the course of his or her duties as an officer to any person or to a court; or

(ii) produces a document to any person or to a court; and

(b) the information is protected information, or the document is a protected document; and

(c) the disclosure or production is not in accordance with subsection (3), (4), (5), (6), (7), (7A) or (7B).

Penalty: Imprisonment for 2 years.

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History

S 252C(2) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 65, by substituting " Penalty " for " Maximum penalty " in the penalty, effective 27 July 2010.

S 252C(2) amended by No 160 of 2000, s 3 and Sch 3 item 62A, by substituting " , (7), (7A) or (7B) " for " or (7) " in para (c), effective 18 January 2001.

252C(3)
It is not an offence if the disclosure of protected information or the production of a protected document by a person is for the purposes of this Act or an Act covered by this section.

252C(4)
It is not an offence if the disclosure of protected information or the production of a protected document by a person:

(a) is by an employee of the person to whose affairs the information or document relates; or

(b) occurs after the person to whose affairs the information or document relates has agreed in writing to the disclosure or production.

252C(5)
It is not an offence if the disclosure of protected information or the production of a protected document by a person:

(a) occurs when the person is satisfied that the disclosure of the information, or the production of the document, will assist a financial sector supervisory agency, or any other agency (including foreign agencies), specified in the regulations, to perform its functions or exercise its powers and the disclosure or production is to that agency; or

(b) is to another person and is approved by the Commissioner of Taxation by instrument in writing.

Note:

See subsection (9) for conditions that may be imposed on people making disclosures under this subsection.

252C(6)
It is not an offence if the disclosure of protected information or the production of a protected document is to:

(a) the Commissioner of Taxation; or

(b) a taxation officer;

for the purposes of the performance of the functions or the exercise of the powers of the Commissioner of Taxation under a law of the Commonwealth or of a State or Territory.

252C(7)
It is not an offence if the information, or the information contained in the document, as the case may be, is in the form of a summary or collection of information that is prepared so that information relating to any particular person cannot be found out from it.

252C(7A)
It is not an offence if the information, or the information contained in the document, as the case may be, is all or any of the following:

(a) information identifying a particular self-managed superannuation fund (other than information disclosing the tax file number of the fund);

(b) information that is reasonably necessary to enable members of the public to contact persons who perform functions in relation to a particular self-managed superannuation fund;

(c) a statement of the Commissioner ' s opinion as to whether or not a particular self-managed superannuation fund is a complying superannuation fund in relation to a particular year of income for the purposes of Division 2 of Part 5 ;

(d) a description of:

(i) court proceedings in relation to a breach or suspected breach by a person of a provision of this Act or a provision of an Act covered by this section; or

(ii) activity engaged in, or proposed to be engaged in, by the Commissioner in relation to such a breach or suspected breach.

Note:

A defendant bears an evidential burden in relation to the matters in subsection (7A) (see subsection 13.3(3) of the Criminal Code ).

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History

S 252C(7A) amended by No 37 of 2002, s 3 and Sch 8 item 6, by inserting para (d), effective 27 June 2002.

S 252C(7A) inserted by No 160 of 2000, s 3 and Sch 3 item 62B, effective 18 January 2001.

252C(7B)
If information referred to in subsection (7A) is disclosed to the Registrar of the Australian Business Register established under section 24 of the A New Tax System (Australian Business Number) Act 1999 , the Registrar may enter the information in that Register.

Note:

A defendant bears an evidential burden in relation to the matters in subsection (7B) (see subsection 13.3(3) of the Criminal Code ).

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History

S 252C(7B) inserted by No 160 of 2000, s 3 and Sch 3 item 62B, effective 18 January 2001.

252C(8)
A person who is, or has been, an officer cannot be required to disclose to a court any protected information or to produce in a court a protected document, except when it is necessary to do so for the purposes of this Act or an Act covered by this section.

252C(9)
The regulations may impose conditions in relation to the disclosure of information or the production of a document under this section, with which a person who discloses the information or produces the document must comply.

252C(10)
A person is guilty of an offence if the person fails to comply with a condition imposed under subsection (9).

Penalty: Imprisonment for 2 years.

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History

S 252C(10) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 65, by substituting " Penalty " for " Maximum penalty " in the penalty, effective 27 July 2010.

252C(11)
A document that:

(a) is a protected document; or

(b) contains protected information;

is an exempt document for the purposes of section 38 of the Freedom of Information Act 1982 .

Note:

The Privacy Act 1988 also contains provisions relevant to the disclosure of information.

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History

S 252C inserted by No 121 of 1999, s 3 and Sch 1 item 56, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .