Superannuation Industry (Supervision) Act 1993
View history note
Hide history notePt 19 heading subsituted by No 123 of 2001, s 3 and Sch 1 item 328, effective 11 March 2002. The heading formerly read:
PART 19 - PUBLIC OFFER ENTITIES - PROVISIONS RELATING TO SUPERANNUATION INTERESTS AND DISCLOSURE OF INFORMATION
Div 3 repealed by No 123 of 2001, s 3 and Sch 1 item 331, effective 11 March 2002. Div 3 formerly read:
Division 3 - Provisions relating to information given to prospective beneficiaries etc. of public offer entities
Subdivision A - Certain information to be given to prospective beneficiaries etc.
SECTION 157 INFORMATION TO BE GIVEN BEFORE SUPERANNUATION INTERESTS ISSUED OTHERWISE THAN TO STANDARD EMPLOYER-SPONSORED MEMBER
157(1)
Subject to subsections (2), (3), (4) and (5), the trustee of a public offer entity must not issue a superannuation interest in the entity to a person unless the trustee is satisfied, on reasonable grounds, that the person has received documents issued, or authorised to be issued, by the trustee that:
(a) contain all the information that the regulations and determinations referred to in section 159 require to be given to the person; and
(b) comply with the formal requirements specified in those regulations and determinations.Penalty: 100 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
HistoryS 157(1) amended by No 31 of 2001, s 3 and Sch 1 items 198 and 199, by omitting " , intentionally or recklessly, " after " must not " and inserting the note at the end, effective 15 December 2001.
S 157(1) amended by No 53 of 1995.
157(2)
Despite subsection (1), the trustee does not have to be satisfied that the person has received information that relates to an event or change of circumstances that happened after the trustee received the application for the interest.
157(3)
Subsection (1) does not apply if:
(a) the public offer entity is a standard employer-sponsored fund; and
(b) the person will, if the interest is issued to the person, be a standard employer-sponsored member of the fund.
157(4)
Subsection (1) does not apply if the interest is issued pursuant to an application under Part 24 of this Act or Part 9 of the Retirement Savings Accounts Act 1997 .HistoryS 157(4) amended by No 62 of 1997 and inserted by No 53 of 1995.
157(5)
Subsection (1) does not apply if the interest is issued in circumstances specified in the regulations.Note:
A defendant bears an evidential burden in relation to the matter in subsections (1) to (5), inclusive (see subsection 13.3(3) of the Criminal Code ).
HistoryS 157(5) amended by No 31 of 2001, s 3 and Sch 1 item 200, by inserting the note at the end, effective 15 December 2001.
S 157(5) inserted by No 53 of 1995.
SECTION 157A INFORMATION TO BE GIVEN ON FIRST OCCASION WHEN SUPERANNUATION INTERESTS ARE ISSUED UNDER PART 24 OR PART 9 OF THE RETIREMENT SAVINGS ACCOUNTS ACT 1997
157A(1) When section applies.This section applies to the issue of a superannuation interest by the trustee of a public offer entity (the ' first trustee ' ) pursuant to an application under Part 24 , or Part 9 of the Retirement Savings Accounts Act 1997 , if the application is the first application under those Parts made to the trustee by the applicant. For this purpose, the ' applicant ' is the trustee of the transferor fund or RSA provider, as the case requires, referred to in section 243 of this Act or section 89 of the Retirement Savings Accounts Act 1997 .
HistoryS 157A(1) amended by No 62 of 1997.
157A(2) Information to be given.The first trustee must not issue the superannuation interest unless the first trustee is satisfied, on reasonable grounds, that the applicant has received documents issued, or authorised to be issued, by the first trustee that:
(a) contain all the information that the regulations and determinations referred to in section 159 require to be given to the applicant; and
(b) comply with the formal requirements specified in those regulations and determinations.Penalty: 100 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
HistoryS 157A(2) amended by No 31 of 2001, s 3 and Sch 1 items 201 and 202, by omitting ``, intentionally or recklessly, ' ' after ``must not'' and inserting the note at the end, effective 15 December 2001.
157A(3) Change of circumstances etc.Despite subsection (2), the first trustee does not have to be satisfied that the applicant has received information that relates to an event or change of circumstances that happened after the first trustee received the application.
SECTION 158 INFORMATION TO BE GIVEN BEFORE PERSONS BECOME STANDARD EMPLOYER-SPONSORSHistoryS 157A inserted by No 53 of 1995.
158(1)
Subject to subsections (2) and (3), the trustee of a public offer entity must not, intentionally or recklessly, permit a person to become a standard employer-sponsor of the entity unless the trustee is satisfied, on reasonable grounds, that the person has received documents issued, or authorised to be issued, by the trustee that:
(a) contain all the information that the regulations and determinations referred to in section 159 require to be given to the person; and
(b) comply with the formal requirements specified in those regulations and determinations.Penalty: 100 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
HistoryS 158(1) amended by No 31 of 2001, s 3 and Sch 1 item 203, by inserting the note at the end, effective 15 December 2001.
S 158(1) amended by No 53 of 1995.
158(2)
Despite subsection (1), the trustee does not have to be satisfied that the person has received information that relates to an event or change of circumstances that happened after the trustee received the person's application to become a standard employer-sponsor of the entity.
158(3)
Subsection (1) does not apply if the person becomes a standard employer-sponsor in circumstances specified in the regulations.Note:
A defendant bears an evidential burden in relation to the matter in subsections (1) to (3), inclusive (see subsection 13.3(3) of the Criminal Code ).
HistoryS 158(3) amended by No 31 of 2001, s 3 and Sch 1 item 205, by inserting the note at the end.
S 158(3) inserted by No 53 of 1995.
SECTION 159 REGULATIONS AND DETERMINATIONS REQUIRING THE GIVING OF INFORMATION
159(1)
For the purposes of sections 157, 157A and 158, the regulations may:
(a) require that particular information is to be given to persons; and
(b) specify formal requirements that documents used to give information to persons must comply with.HistoryS 159(1) amended by No 53 of 1995.
159(2)
Subject to subsection (3), ASIC may, for the purposes of sections 157, 157A and 158, by written determination:
(a) require that particular information is to be given to persons; and
(b) specify formal requirements that documents used to give information to persons must comply with.HistoryS 159(2) amended by No 54 of 1998 and No 53 of 1995.
159(3)
A determination must not be inconsistent with regulations referred to in subsection (1).
159(4)
A determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
159(5)
In this section:"formal requirements"
includes, for example, requirements about layout or type size.
SECTION 160 DOCUMENTS TAKEN TO CONTAIN INFORMATION REFERRED TO
160(1)
If:
(a) a person has received a document (the ' received document ' ) issued, or authorised to be issued, by the trustee of a public offer entity; and
(b) the received document refers to particular information (the ' referred information ' ) being contained in another document issued, or authorised to be issued, by the trustee; and
(c) the requirements of subsections (2), (3) and (4) are satisfied;then, for the purposes of sections 157, 157A and 158, the received document is taken to contain the referred information.
HistoryS 160(1) amended by No 53 of 1995.
160(2)
The received document must clearly identify:
(a) the other document; and
(b) the nature of the referred information.
160(3)
The received document must include a statement to the effect that the trustee will provide a copy of the other document, free of charge, to a person who asks for it.
160(4)
The trustee must not have failed or refused to provide a copy of the other document free of charge when asked by the person for a copy of it.
Subdivision B - Limitations on issuing regulated documents
SECTION 161 REGULATED DOCUMENTS NOT TO BE FALSE OR MISLEADING - CRIMINAL LIABILITY
161
The trustee of a public offer entity must not issue, or authorise the issue of, a regulated document in relation to the entity if the trustee knows:
(a) that the document contains a material statement that is false or misleading; or
(b) that there has been a material omission from the document.Penalty: Imprisonment for 5 years.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
SECTION 162 REGULATED DOCUMENTS NOT TO BE FALSE OR MISLEADING - CIVIL LIABILITYHistoryS 161 amended by No 31 of 2001, s 3 and Sch 1 items 206 and 207, by omitting " intentionally or recklessly " after " entity must not " and inserting the note at the end, effective 15 December 2001.
162(1)
The trustee of a public offer entity must not issue, or authorise the issue of, a regulated document in relation to the entity:
(a) in which there is a material statement that is false or misleading; or
(b) from which there is a material omission.
162(2)
If:
(a) the trustee of a public offer entity contravenes subsection (1); and
(b) a person suffers loss or damage because of the contravention;the person may recover the amount of the loss or damage by action against the trustee.
162(3)
The action may be begun even if the trustee has been convicted of an offence in respect of the conduct constituting the contravention.
162(4)
The action must be begun within 6 years after the day on which the cause of action arose.
162(5)
It is a defence to the action if the trustee proves that, before the person suffered the loss or damage, the person:
(a) if the contravention relates to a false or misleading statement - knew that the statement was false or misleading; or
(b) if the contravention relates to an omission - was aware of the omitted matter.
162(6)
This section does not affect any liability under any other provision of this Act or under any other law.
SECTION 163 STATEMENTS BY EXPERTS
163(1)
The trustee of a public offer entity must not issue, or authorise the issue of, a regulated document in relation to the entity that includes a statement made by, or purporting to be based on a statement made by, an expert, unless:
(a) the expert has given written consent to the issue of the document with the statement included in the form and context in which it is included; and
(b) that consent has not been withdrawn before the issue of the document.Penalty: Imprisonment for 6 months.
Note: A defendant bears an evidential burden in relation to the matters in paragraphs (1)(a) and (b) (see subsection 13.3(3) of the Criminal Code ).
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: A defendant bears an evidential burden in relation to the matter in paragraphs (1)(a) and (b) (see subsection 13.3(3) of the Criminal Code ).
HistoryS 163(1) amended by No 31 of 2001, s 3 and Sch 1 items 208 and 209, by omitting " , intentionally or recklessly, " after " must not " and inserting the note at the end, effective 15 December 2001.
S 163(1) amended by No 160 of 2000, s 3 and Sch 3 item 86, by inserting the Note at the end, effective 18 January 2001.
163(2)
The trustee must not, without reasonable excuse, fail to keep the consent, or a copy of it, for the period, and in the manner, required by the regulations.Penalty: 10 penalty units.
163(3)
Subsection (2) is an offence of strict liability.Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability , see section 6.1 of the Criminal Code .
HistoryS 163(3) inserted by No 163 of 2000, s 3 and Sch 3 item 86, effective 18 January 2001.
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