Superannuation Industry (Supervision) Act 1993

PART 1 - PRELIMINARY

Division 1 - Preliminary

SECTION 1

1 SHORT TITLE
This Act may be cited as the Superannuation Industry (Supervision) Act 1993.

SECTION 2 COMMENCEMENT

2(1) [Provisions commencing 30 November 1993]

Subject to this section, Parts 1, 2, 21, 27, 28, 29, 30, 31 and 32 commence on the day on which this Act receives the Royal Assent.

2(2) [Provisions commencing 21 October 1992]

Part 1 (in so far as it relates to section 117) and section 117 are taken to have commenced on 21 October 1992.

2(3) [Provisions commencing 1 July 1994]

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Parts 18, 19, 20, 23 and 24 and section 342 commence on 1 July 1994.

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2(4) [Provisions commencing 1 December 1993]

The remaining provisions commence on 1 December 1993, but do not apply to a fund, scheme or trust in relation to a year of income of the fund, scheme or trust earlier than the 1994-95 year of income.

SECTION 3 OBJECT OF ACT

3(1) Supervision of certain superannuation entities.

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The main object of this Act is to make provision for the prudent management of certain superannuation funds, approved deposit funds and pooled superannuation trusts and for their supervision by APRA, ASIC and the Commissioner of Taxation.

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3(2) Basis for supervision.

The basis for supervision is that those funds and trusts are subject to regulation under the Commonwealth's powers with respect to corporations or pensions (for example, because the trustee is a corporation). In return, the supervised funds and trusts may become eligible for concessional taxation treatment.

3(3) Whole industry not covered.

The Act does not regulate other entities engaged in the superannuation industry.

SECTION 4 SIMPLIFIED OUTLINE OF SUPERVISION RESPONSIBILITIES

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Sections 5 and 6 set out the functions, powers and duties of APRA, ASIC and the Commissioner of Taxation in administering this Act.

APRA is generally responsible for prudential regulation and member outcomes. It is also generally responsible for licensing and supervision of RSE licensees.

ASIC is generally responsible for protecting consumers from harm, market integrity, disclosure and record keeping.

The Commissioner of Taxation is generally responsible for self managed superannuation funds, data and payment standards, tax file numbers and the compassionate release of superannuation amounts.

[ CCH Note: No 47 of 2021, s 3 and Sch 1 item 10 provides for the amendment of s 4 by substituting "no more than 6 members" for "fewer than 5 members" in table item dealing with Part No. 24B, column headed "Matter dealt with", effective 1 July 2021. However, this amendment relates to former s 4, substituted with effect from 1 January 2021, and therefore cannot be applied.]

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SECTION 5 GENERAL ADMINISTRATION OF ACT

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5(1)
Subject to this section, the general administration of a provision is determined under the general administration table in section 6. If a provision is covered by column 1 of the table, the general administration of the provision is conferred on a person, body or bodies in accordance with column 3 of the table.

5(2)
Powers and duties are also conferred by the provisions referred to in subsection (3) of this section on:

(a) APRA for the purposes of APRA's administration of the provisions it administers (including provisions both APRA and ASIC administer); and

(b) ASIC for the purposes of ASIC's administration of the provisions it administers (including provisions both APRA and ASIC administer); and

(c) the Commissioner of Taxation for the purposes of the administration of the provisions the Commissioner of Taxation administers.

5(3)
The provisions are Parts 1, 25, 26, 27, 28, 29, 29A and 30, but not including any of the following provisions:

(a) Division 3 of Part 25 (see instead item 58 of the general administration table);

(b) sections 328 and 332 (see instead subsection (8) of this section).

Note:

Generally APRA, ASIC and the Commissioner of Taxation are not referred to in these provisions, Regulator is used instead. See the definition of Regulator in section 10.

Special rules about ASIC

5(4)
Despite paragraph (2)(b):

(a) powers and duties conferred on ASIC by section 255 are conferred only in relation to persons who are relevant persons in relation to superannuation entities; and

(b) powers and duties conferred on ASIC by section 256 are conferred only in relation to the affairs of superannuation entities.

Special rules about the Commissioner of Taxation

5(5)
Despite paragraph (2)(c):

(a) powers and duties conferred on the Commissioner of Taxation by Divisions 4 to 8 of Part 25 (other than section 285) are conferred only in relation to:

(i) persons who are relevant persons in relation to superannuation entities; and

(ii) the affairs of superannuation entities; and

(b) powers and duties are not conferred on the Commissioner of Taxation by section 342 (about pre-1 July 88 funding credits and debits).

5(6)
Nothing in subsection (5) limits the powers and duties conferred on the Commissioner of Taxation by Part 25 (as mentioned in paragraph (2)(c)) in relation to contributing employers.

Note:

The Commissioner of Taxation's powers and duties under Part 25 in relation to contributing employers are found in sections 255 and 256, with related provisions in Divisions 7, 8 and 9 of that Part.

5(7)
To avoid doubt, for the purposes of the definition of taxation law in subsection 995-1(1) of the Income Tax Assessment Act 1997, the Commissioner of Taxation is taken to have the general administration of a provision of this Act or the regulations that confers powers and duties on the Commissioner of Taxation.

Note:

An effect of a provision being administered by the Commissioner of Taxation is that people who acquire information under the provision are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.

Modification and exemption powers

5(8)
Powers and duties are also conferred by sections 328 and 332 on:

(a) APRA for the purposes of the administration of provisions administered by APRA (including provisions both APRA and ASIC administer) or by the Commissioner of Taxation; and

(b) ASIC for the purposes of the administration of provisions administered solely by ASIC.

Directions

5(9)
The Minister may, by legislative instrument, give APRA or ASIC directions about the performance or exercise of its functions or powers under this Act.

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SECTION 6 GENERAL ADMINISTRATION TABLE

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6(1)

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The following table has effect for the purposes of subsection 5(1).

Note:

Under that subsection, the general administration of a provision referred to in column 1 of the table is conferred as set out in column 3.

General administration table
Item	Column 1	Column 2	Column 3
	Provisions	Topic	Regulator
1	Part 2A, to the extent it is not covered by item 2 of this table	licensing of RSE licensees	APRA
2	Section 29JCA	false representation about RSE status	both APRA and ASIC
3	Part 2B, to the extent it is not covered by item 4 of this table	registrable superannuation entities	APRA
4	Sections 29P to 29QC	obligations of RSE licensees	ASIC
5	Part 2C, to the extent it is not covered by item 6 of this table	MySuper	APRA
6	Subsection 29SAA(3)	MySuper notice requirements	ASIC
7	Part 3, to the extent it is not covered by item 7A, 8 or 9 of this table	operating standards	(a)	ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and
			(b)	subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
			(c)	APRA, to the remaining extent
7A	Subsection 34(2A)	offence for breaching standards relating to record keeping obligations	both APRA and ASIC
8	Division 3 of Part 3	portability forms	the Commissioner of Taxation
9	Regulations made under Part 3	release on compassionate grounds	the Commissioner of Taxation, to the extent that the regulations relate to the making and notification of determinations that an amount of benefits in a superannuation entity may be released on compassionate grounds
10	Part 3A	prudential standards	APRA
11	Part 3B, to the extent it is not covered by item 12 or 13 of this table	superannuation data and payment	APRA
12	Divisions 1 and 4 of Part 3B	superannuation data and payment	the Commissioner of Taxation
13	Division 2 of Part 3B	compliance with superannuation data and payment regulations and standards	(a)	the Commissioner of Taxation, to the extent the provisions relate to any of the following:
					(i)	employers;
					(ii)	payments and information given to the Commissioner of Taxation;
					(iii)	self managed superannuation funds; and
			(b)	APRA, to the remaining extent
14	Part 4	accounts, audit and reporting obligations for superannuation entities	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
14	Part 4		(b)	APRA, to the remaining extent
15	Part 5, to the extent it is not covered by item 16 of this table	notices about complying fund status	(a)	the Commissioner of Taxation, to the extent the provisions do any of the following:
					(i)	relate to self managed superannuation funds;
					(ii)	require or permit the Commissioner of Taxation to do something; and
			(b)	APRA, to the remaining extent
16	Sections 40 and 41	notices about complying superannuation fund status	(a)	in relation to an entity that is a self managed superannuation fund on the last day of the most recently ended year of income - the Commissioner of Taxation; and
			(b)	in relation to an entity that is not a self managed superannuation fund on the last day of the most recently ended year of income - APRA; and
			(c)	subject to paragraphs (a) and (b), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
			(d)	APRA, to the remaining extent
17	Part 6, to the extent it is not covered by items 18 to 21 of this table	governing rules of superannuation entities	(a)	ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and
			(b)	subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
			(c)	APRA, to the remaining extent
18	Sections 52, 52A and 54B	covenants and consequences of breaching covenants	both APRA and ASIC
19	Sections 52B and 52C	covenants of SMSFs	the Commissioner of Taxation
20	Section 54A	prescribed covenants	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
20	Section 54A	prescribed covenants	(b)	both APRA and ASIC, to the remaining extent
21	Section 60A	dismissal of trustee of public offer entity	APRA
21A	Part 6A, to the extent it is not covered by item 21B, 21C or 21D of this table	annual performance assessments	(a)	ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and
21A		annual performance assessments	(b)	APRA, to the remaining extent
21B	Section 60E	annual performance assessments - trustee to notify beneficiaries of fail assessment	both APRA and ASIC
21C	Subsection 60F(2)	annual performance assessments - consequence of 2 consecutive fail assessments	both APRA and ASIC
21D	Subsections 60J(4), (5) and (6)	formulas for ranking products - making information available on website	the Commissioner of Taxation
22	Part 7, to the extent it is not covered by items 23 to 26 of this table	regulated superannuation funds	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
22		regulated superannuation funds	(b)	APRA, to the remaining extent
23	Sections 62 and 68	sole purpose test; victimisation of trustees	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
23	Sections 62 and 68	sole purpose test; victimisation of trustees	(b)	both APRA and ASIC, to the remaining extent
24	(Repealed by No 69 of 2023)
25	Section 68A	use of goods or services to influence employers	ASIC
26	Section 68B	promotion of illegal early release schemes	(a)	the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and
26	Section 68B	promotion of illegal early release schemes	(b)	ASIC, to the remaining extent
27	Part 8	in-house asset rules	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
27	Part 8	in-house asset rules	(b)	APRA, to the remaining extent
28	Part 9	equal representation of employers and members - employer-sponsored funds	APRA
29	Part 10	approved deposit funds	APRA
30	Part 11	pooled superannuation trusts	APRA
31	Part 11A, to the extent it is not covered by item 32 of this table	general fees rules	APRA
32	Sections 99F and 99FA	cost of financial product advice	ASIC
33	Part 12, to the extent it is not covered by items 34 to 36 of this table	duties of trustees and investment managers	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
33		duties of trustees and investment managers	(b)	APRA, to the remaining extent
34	Sections 101 and 103	dispute resolution systems; duty to keep minutes and records	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
34	Sections 101 and 103		(b)	ASIC, to the remaining extent
35	Section 105	duty to keep reports	(a)	ASIC, to the extent the provision relates to disclosure or record-keeping (see subsection (2)); and
			(b)	subject to paragraph (a), the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and
			(c)	APRA, to the remaining extent
36	Section 108A	duty to identify multiple accounts	both APRA and ASIC
37	Part 14	other provisions applying to superannuation entities	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
37	Part 14	other provisions applying to superannuation entities	(b)	APRA, to the remaining extent
38	Part 15, to the extent it is not covered by item 39 of this table	standards for trustees, custodians and investment managers	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
38		standards for trustees, custodians and investment managers	(b)	APRA, to the remaining extent
39	Section 126K	disqualified persons	(a)	the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and
39	Section 126K	disqualified persons	(b)	both APRA and ASIC, to the remaining extent
40	Part 16, to the extent it is not covered by items 41 to 43A of this table	actuaries and auditors	(a)	ASIC, to the extent the provisions relate to auditors of self managed superannuation funds; and
			(b)	subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
			(c)	APRA, to the remaining extent
41	Section 128N	actuaries and auditors - ASIC may disclose information	ASIC
42	Section 128P	actuaries and auditors - Commissioner of Taxation may refer matter to ASIC	the Commissioner of Taxation
43	Division 2 of Part 16	actuaries and auditors - obligations	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
43	Division 2 of Part 16	actuaries and auditors - obligations	(b)	APRA, to the remaining extent
43A	Sections 130D and 130E	disqualifying and removing actuaries and auditors	(a)	both APRA and ASIC, to the extent the provisions relate to auditors; and
43A	Sections 130D and 130E	disqualifying and removing actuaries and auditors	(b)	APRA, to the extent the provisions relate to actuaries
44	Part 16A	APRA's powers to issue directions	APRA
45	Part 17, to the extent it is not covered by item 46 of this table	suspension or removal of trustee	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
45		suspension or removal of trustee	(b)	APRA, to the remaining extent
46	Section 140	notice by acting trustee	APRA
47	Part 18	amalgamation of funds	APRA
48	Part 19	public offer entities	ASIC
49	Part 20	contraventions relating to SMSFs	the Commissioner of Taxation
50	Part 21	civil and criminal consequences of contravening civil penalty provisions	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
			(b)	both APRA and ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by both those bodies; and
			(c)	ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by ASIC; and
			(d)	APRA, to the remaining extent
51	Part 22	infringement notices	APRA
52	Part 23	financial assistance	APRA
53	Part 24, to the extent it is not covered by item 54 of this table	eligible rollover funds	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
53		eligible rollover funds	(b)	APRA, to the remaining extent
54	sections 242K, 242L and 242M	obligations relating to eligible rollover funds	both APRA and ASIC
55	Part 24A	pre-1 July 1995 transitional provisions	APRA
56	Part 24B	small funds	as provided by the provisions of Part 24B
57	Part 25, to the extent itis not covered by item 58 of this table	monitoring and investigation	see section 5
58	Division 3 of Part 25	monitoring and investigation - APRA requirements	APRA
59	Part 25A, to the extent it is not covered by item 60 of this table	tax file numbers	(a)	the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and
59		tax file numbers	(b)	APRA, to the remaining extent
60	Divisions 1 and 3A of Part 25A, section 299NA and subsection 299U(2A)	tax file numbers	the Commissioner of Taxation
61	Part 32	transitional provisions for tax file numbers	APRA

Note:

Subsection 10(4) extends the meaning of self managed superannuation fund for the purposes of this section, sections 5, 42 and 42A, and Part 20.

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Disclosure and record-keeping provisions

6(2)

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For the purposes of the general administration table, a provision relates to disclosure or record-keeping to the extent to which the provision relates to:

(a) keeping of reports to members of, or beneficiaries in, funds; or

(b) disclosure of information to members of, or beneficiaries in, funds; or

(c) disclosure of information about funds (including disclosure of information to ASIC but not including disclosure of information to APRA); or

(d) any other matter prescribed by regulations for the purposes of this paragraph.

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SECTION 7

7 APPLICATION OF ACT NOT TO BE EXCLUDED OR MODIFIED
This Act applies to a superannuation entity despite any provision in the governing rules of the entity, including any provision that purports to substitute, or has the effect of substituting, the provisions of the law of a State or Territory or of a foreign country for all or any of the provisions of this Act.

SECTION 8

8 ACT EXTENDS TO EXTERNAL TERRITORIES
This Act extends to all the external Territories.

SECTION 9 CROWN TO BE BOUND

9(1) [Act binds Crown]

This Act binds the Crown in all its capacities.

9(2) [Crown not liable to prosecution]

The Crown is not liable to be prosecuted for an offence against, or arising out of, this Act.

SECTION 9A

9A APPLICATION OF THE CRIMINAL CODE

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Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

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Division 2 - Interpretation

SECTION 10 DEFINITIONS

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10(1)

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In this Act, unless the contrary intention appears:

ABN
has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

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accrued default amount
, for a member of a regulated superannuation fund, has the meaning given by section 20B.

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acquirable asset
has the meaning given by section 67A.

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activity fee
has the meaning given by subsection 29V(7).

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actuary
(Repealed by No 61 of 2013)

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ADI
(authorised deposit-taking institution) means:

(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or

(b) a State bank.

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administration fee
has the meaning given by subsection 29V(2).

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adopted child
, in relation to a person, means a person adopted by the first-mentioned person:

(a) under the law of a State or Territory relating to the adoption of children; or

(b) under the law of any other place relating to the adoption of children, if the validity of the adoption would be recognised under the law of any State or Territory.

advice fee
has the meaning given by subsection 29V(8).

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AFCA scheme
has the same meaning as in the Corporations Act 2001.

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amend
, in relation to the governing rules of a superannuation entity, includes the insertion of a provision in, or the omission of a provision from, those rules.

annual members' meeting
, for a registrable superannuation entity, means a meeting of members of the entity held under subsection 29P(1) for a year of income of the entity.

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annuity
includes a benefit provided by a life insurance company or a registered organisation, if the benefit is taken, under the regulations, to be an annuity for the purposes of this Act.

approved auditor
(Repealed by No 61 of 2013)

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approved bank
(Omitted by No 48 of 1998)

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approved deposit fund
means a fund that:

(a) is an indefinitely continuing fund; and

(b) is maintained by an RSE licensee that is a constitutional corporation; and

(c) is maintained solely for approved purposes.

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approved form
has the meaning given by section 11A.

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approved guarantee
has the meaning given by section 11E.

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approved non-ADI financial institution
(Repealed by No 160 of 2000)

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approved non-bank financial institution
(Repealed by No 48 of 1998 - see definition of "approved non-ADI financial institution".)

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approved purposes
, in relation to a fund, means:

(a) the purpose of receiving on deposit:

(i) amounts of roll-over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997); and

(ia) amounts of directed termination payments (within the meaning of section 82-10F of the Income Tax (Transitional Provisions) Act 1997); and

(ii) amounts paid under Part 24 of this Act; and

(iii) amounts paid under section 65 of the Superannuation Guarantee (Administration) Act 1992; and

(b) the purpose of dealing with such amounts, in accordance with the rules of the fund, in any way calculated directly or indirectly to enhance the value of, or render profitable, property of the fund; and

(c) subject to any inconsistent requirement in the standards from time to time applicable to the fund under section 32, the purpose of paying to beneficiaries, or to the legal personal representatives of beneficiaries, upon request, amounts equal to the beneficiary's interest in the fund; and

(d) such other purposes (if any) as APRA approves in writing.

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approved rules
(Repealed by No 140 of 1994)

approved SMSF auditor
means a person who is registered under section 128B, but does not include:

(a) a person for whom an order disqualifying a person from being an approved SMSF auditor, or suspending a person's registration as an approved SMSF auditor, is in force under section 130F; or

(b) a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D.

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approved trustee
(Repealed by No 53 of 2004)

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APRA
means the Australian Prudential Regulation Authority.

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APRA staff member
has the same meaning as in the Australian Prudential Regulation Authority Act 1998.

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ASIC
means the Australian Securities and Investments Commission.

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asset
means any form of property and, to avoid doubt, includes money (whether Australian currency or currency of another country).

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associate
has the meaning given by section 12.

Australian court
means:

(a) the High Court; or

(b) a court created by the Parliament; or

(c) a court of a State or Territory.

Australian resident
means a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.

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authorised person
means a person authorised by the Regulator under section 298A for the purposes of the provision in which the expression occurs.

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benchmark
means a benchmark mentioned in, or specified in regulations made for the purposes of, subparagraphs 52(9)(a)(i) and (ii) and paragraph 52(9)(aa).

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beneficiary
, in relation to a fund, scheme or trust, means a person (whether described in the governing rules as a member, a depositor or otherwise) who has a beneficial interest in the fund, scheme or trust and includes, in relation to a superannuation fund, a member of the fund despite the express references in this Act to members of such funds.

books
includes:

(a) any record; or

(b) any accounts or accounting records, however compiled, recorded or stored; or

(c) a document.

business day
(Repealed by No 46 of 2011)

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buy-sell spread
has the meaning given by subsection 29V(4).

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Chief Executive Medicare
(Repealed by No 23 of 2018)

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child
, in relation to a person, includes:

(a) an adopted child, a stepchild or an ex-nuptial child of the person; and

(b) a child of the person's spouse; and

(c) someone who is a child of the person within the meaning of the Family Law Act 1975.

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choice product
: A class of beneficial interest in a regulated superannuation fund is a choice product unless:

(a) all the members of the fund who hold that class of beneficial interest in the fund are defined benefit members; or

(b) that class of beneficial interest in the fund is a MySuper product.

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civil penalty order
means a declaration or order made under section 196.

civil penalty provision
has the meaning given by section 193.

class
, in relation to an RSE licensee, means (except in subsections 29E(7) and (8)) a class of RSE licence provided for under subsection 29B(2) or (3), or under regulations made for the purposes of subsection 29B(4).

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Commissioner
means the Insurance and Superannuation Commissioner appointed under the Insurance and Superannuation Commissioner Act 1987, or a person for the time being acting as Insurance and Superannuation Commissioner under that Act.

comparable choice products
, in relation to a choice product, means a class of choice product specified in regulations made for the purposes of this definition that the choice product is to be compared with.

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connected entity
, in relation to an RSE licensee of a registrable superannuation entity, means:

(a) an associated entity (within the meaning of the Corporations Act 2001) of the RSE licensee; and

(b) if the RSE licensee is a group of individual trustees - an entity that has the capacity to determine or influence decisions made by one or more members of the group in relation to the registrable superannuation entity; and

(c) any other entity of a kind prescribed by the regulations.

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constitutional corporation
means a body corporate that is:

(a) a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b) a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution).

contributing employer
means an employer having obligations under Part 3B (about the superannuation data and payment regulations and standards).

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controlling stake
: a person holds a controlling stake in an RSE licensee that is a body corporate if the person holds a stake of more than 15% in the RSE licensee.

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corporate trustee
, in relation to a fund, scheme or trust, means a body corporate that is a trustee of the fund, scheme or trust.

Corporations Law
(Repealed by No 76 of 2023)

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court
means any court, when exercising jurisdiction under this Act.

Court
means the Federal Court of Australia or the Supreme Court of a State or a Territory.

custodian
, in relation to a superannuation entity, means a person (other than a trustee of the entity) who, under a contract with a trustee or an investment manager of the entity, performs custodial functions in relation to any of the assets of the entity.

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data and payment regulations and standards relating to RSAs
has the same meaning as in the Retirement Savings Accounts Act 1997.

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data processing device
means any article or material (for example, a disc) from which information is capable of being reproduced with or without the aid of any other article or device.

[ CCH Note: Definition of "data standards" will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1415, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. The definition will read:

data standards
means standards made by the Registrar under section 13 of the Commonwealth Registers Act 2020 to the extent that they relate to the Registrar's functions or powers in connection with this Act.
Note:

The data standards deal with how the Registrar's functions and powers are performed and exercised. For example, they may provide for:

(a) the collection of information; and

(b) the manner and form in which information is given to the Registrar; and

(c) the manner and form of communication between the Registrar and persons who give information to the Registrar or seek to access information held by the Registrar.

]

death benefit
: see section 68AA.

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deed
includes an instrument having the effect of a deed.

defined benefit fund
has (except in Division 3A of Part 8 and in Part 23) the meaning given by the regulations.

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defined benefit member
:

(a) in the definition of choice product in this subsection, section 20B and Part 2C - has the same meaning as in the Superannuation Guarantee (Administration) Act 1992; and

(b) in Division 3A of Part 8 and in Part 23 - has the meaning given by section 83A; and

(c) in any other provision of this Act - has the meaning given by the regulations;

subject to subsection (1A).

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dependant
, in relation to a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship.

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director
, in relation to a body corporate, has the same meaning as in the Corporations Act 2001.

View history note

disclose
, in relation to information, means give, reveal or communicate in any way.

education direction
: see subsection 160(2).

View history note

eligibility age
(Repealed by No 128 of 1999)

View history note

eligible rollover fund
: a regulated superannuation fund is an eligible rollover fund if an RSE licensee is authorised under section 242F to operate the fund as an eligible rollover fund.

View history note

eligible superannuation entity
means a regulated superannuation fund or an approved deposit fund.

View history note

employee
has the meaning given by section 15A.

View history note

employer
has the meaning given by section 15A.

View history note

employer representative
, in relation to a group of trustees of a fund, a policy committee of a fund or the board of directors of a corporate trustee of a fund, means a member of the group, committee or board, as the case may be, nominated by:

(a) the employer or employers of the members of the fund; or

(b) an organisation representing the interests of that employer or those employers.

employer-sponsor
has the meaning given by subsection 16(1).

employer-sponsored fund
has the meaning given by subsection 16(3).

enhanced director obligations
means:

(a) for MySuper products - the obligations imposed by:

(i) a covenant referred to in paragraph 52A(2)(f), as it relates to covenants referred to in subsection 52(9), (12) or (13); and

(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced director obligations for MySuper products; and

(b) for eligible rollover funds - the obligations imposed by:

(i) section 242L; and

(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced director obligations for eligible rollover funds.

View history note

enhanced trustee obligations
means:

(a) for MySuper products - the obligations imposed by:

(i) covenants referred to in section 52; and

(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced trustee obligations for MySuper products; and

(b) for eligible rollover funds - the obligations imposed by:

(i) covenants referred to in section 52, as enhanced by the obligations imposed under section 242K; and

(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced trustee obligations for eligible rollover funds.

View history note

entity
means any of the following:

(a) an individual;

(b) a body corporate;

(c) a partnership;

(d) a trust.

View history note

entry fee
has the meaning given by subsection 99B(2).

View history note

evidential burden
, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

View history note

excluded approved deposit fund
means an approved deposit fund:

(a) in which there is only one beneficiary; and

(b) that satisfies such other conditions (if any) as are specified in the regulations.

excluded fund
(Repealed by No 121 of 1999)

View history note

excluded instalment trust
, of a superannuation fund, means a trust:

(a) that arises because a trustee or investment manager of the superannuation fund makes an investment under which a listed security (the underlying security ) is held in trust until the purchase price of the underlying security is fully paid; and

(b) where the underlying security, and property derived from the underlying security, is the only trust property; and

(c) where an investment in the underlying security held in trust would not be an in-house asset of the superannuation fund.

View history note

excluded superannuation fund
(Repealed by No 121 of 1999)

View history note

executive officer
, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned, or takes part, in the management of the body.

exempt public sector superannuation scheme
means a public sector superannuation scheme that is specified in regulations made for the purposes of this definition.

exit fee
has the meaning given by subsection 99BA(2).

View history note

expert
, in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter.

Fair Work Inspector
(Repealed by No 2 of 2015)

View history note

fees rules
, in relation to MySuper products, means the rules in Division 5 of Part 2C.

View history note

financial product
has the same meaning as in Division 3 of Part 7.1 of the Corporations Act 2001.

View history note

financial product advice
has the same meaning as in the Corporations Act 2001.

View history note

financial services licensee
has the meaning given by the Corporations Act 2001.

View history note

function
includes duty.

general administration table
means the table in section 6.

View history note

general fees rules
means the rules in Part 11A.

View history note

governing rules
, in relation to a fund, scheme or trust, means:

(a) any rules contained in a trust instrument, other document or legislation, or combination of them; or

(b) any unwritten rules;

governing the establishment or operation of the fund, scheme or trust.

View history note

group of individual trustees
means a group of trustees each of whom is an individual trustee.

View history note

group of trustees
, in relation to a fund, scheme or trust, means a board, committee or other group of trustees of the fund, scheme or trust.

half-year
means a period of 6 months ending on 30 June or 31 December.

Income Tax Assessment Act
means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.

View history note

independent director
, in relation to a corporate trustee of a fund, means a director of the corporate trustee who:

(a) is not a member of the fund; and

(b) is neither an employer-sponsor of the fund nor an associate of such an employer-sponsor; and

(c) is neither an employee of an employer-sponsor of the fund nor an employee of an associate of such an employer-sponsor; and

(d) is not, in any capacity, a representative of a trade union, or other organisation, representing the interests of one or more members of the fund; and

(e) is not, in any capacity, a representative of an organisation representing the interests of one or more employer-sponsors of the fund.

Note:

Subsection (2) sets out the circumstances in which a director of a corporate trustee of a fund is not taken to be an associate of an employer-sponsor of the fund.

View history note

independent trustee
, in relation to a fund, means a trustee of the fund who:

(a) is not a member of the fund; and

(b) is neither an employer-sponsor of the fund nor an associate of such an employer-sponsor; and

(c) is neither an employee of an employer-sponsor of the fund nor an employee of an associate of such an employer-sponsor; and

(d) is not, in any capacity, a representative of a trade union, or other organisation, representing the interests of one or more members of the fund; and

(e) is not, in any capacity, a representative of an organisation representing the interests of one or more employer-sponsors of the fund.

individual RSE auditor
means an individual who is appointed as auditor of a registrable superannuation entity.

View history note

individual trustee
, in relation to a fund, scheme or trust, means an individual who is a trustee of the fund, scheme or trust.

industrial instrument
(Repealed by No 2 of 2015)

View history note

insolvent under administration
means a person who:

(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or

(b) under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt;

and includes:

(c) a person any of whose property is subject to control under:

(i) section 50 or 188 of the Bankruptcy Act 1966; or

(ii) a corresponding provision of the law of an external Territory or the law of a foreign country; or

(d) a person who has executed a personal insolvency agreement under:

(i) Part X of the Bankruptcy Act 1966; or

(ii) the corresponding provisions of the law of an external Territory or the law of a foreign country;

if a certificate has not been given under section 232 of that Act or the corresponding provision of the law of the external Territory or foreign country, as the case may be, in respect of the agreement.

(e) (Repealed by No 80 of 2004)

(f) (Repealed by No 80 of 2004)

View history note

inspector
has the meaning given by section 265.

instalment receipt
means an investment under which:

(a) a listed security is held in a trust until the purchase price of the security is fully paid; and

(b) the security, and property derived from the security, is the only trust property.

View history note

insurance fee
has the meaning given by subsection 29V(9).

View history note

interdependency relationship
has the meaning given by section 10A.

View history note

invest
means:

(a) apply assets in any way; or

(b) make a contract;

for the purpose of gaining interest, income, profit or gain.

View history note

investment
(Repealed by Act No 38 of 1999)

investment fee
has the meaning given by subsection 29V(3).

View history note

investment manager
means a person appointed by a trustee of a fund or trust to invest on behalf of the trustee, or the trustees, of the fund or trust.

View history note

involved
, in relation to a contravention, has the meaning given by section 17.

lawyer
means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.

lead auditor
has the meaning given by section 11F.

View history note

lease arrangement
means any agreement, arrangement or understanding in the nature of a lease (other than a lease) between a trustee of a superannuation fund and another person, under which the other person is to use, or control the use of, property owned by the fund, whether or not the agreement, arrangement or understanding is enforceable, or intended to be enforceable, by legal proceedings.

View history note

legal personal representative
means the executor of the will or administrator of the estate of a deceased person, the trustee of the estate of a person under a legal disability or a person who holds an enduring power of attorney granted by a person.

licensing transition period
(Repealed by No 69 of 2023)

View history note

lifecycle exception
has the meaning given by subsection 29TC(2).

View history note

life insurance company
means:

(a) a body corporate registered under section 21 of the Life Insurance Act 1995; or

(b) a public authority:

(i) that is constituted by a law of a State or Territory; and

(ii) that carries on life insurance business within the meaning of section 11 of that Act.

View history note

listed security
has the meaning given by subsection 66(5).

View history note

loan
includes the provision of credit or any other form of financial accommodation, whether or not enforceable, or intended to be enforceable, by legal proceedings.

View history note

lodge
means lodge with the Regulator.

View history note

market value
, in relation to an asset, means the amount that a willing buyer of the asset could reasonably be expected to pay to acquire the asset from a willing seller if the following assumptions were made:

(a) that the buyer and the seller dealt with each other at arm's length in relation to the sale;

(b) that the sale occurred after proper marketing of the asset;

(c) that the buyer and the seller acted knowledgeably and prudentially in relation to the sale.

member
has a meaning affected by section 15B.

View history note

member of staff
means:

(a) in relation to APRA - a person who is an APRA staff member within the meaning of the Australian Prudential Regulation Authority Act 1998; and

(b) in relation to ASIC - a person who is a staff member within the meaning of the Australian Securities and Investments Commission Act 2001; and

(c) in relation to the Commissioner of Taxation - a taxation officer.

View history note

member representative
, in relation to a group of trustees of a fund, a policy committee of a fund or the board of directors of a corporate trustee of a fund, means a member of the group, committee or board, as the case may be, nominated by:

(a) the members of the fund; or

(b) a trade union, or other organisation, representing the interests of those members.

modifications
includes additions, omissions and substitutions.

MySuper member
: A member of a regulated superannuation fund is a MySuper member of the fund if the member holds a beneficial interest in the fund of a class that the RSE licensee of the fund is authorised to offer as a MySuper product.

View history note

MySuper product:
A class of beneficial interest in a regulated superannuation fund is a MySuper product if an RSE licensee is authorised under section 29T to offer that class of beneficial interest in the fund as a MySuper product.

View history note

occurrence of an event
includes the coming into existence of a state of affairs.

old-age pensions
has the same meaning as in paragraph 51(xxiii) of the Constitution.

ongoing fee arrangement
has the same meaning as in the Corporations Act 2001.

View history note

Part 6A product
has the meaning given by section 60B.

View history note

Part 8 associate
has the meaning given by Subdivision B of Division 1 of Part 8.

View history note

pension
, except in the expression old-age pension , includes a benefit provided by a fund, if the benefit is taken, under the regulations, to be a pension for the purposes of this Act.

permanent incapacity
: a member of a superannuation fund or an approved deposit fund is suffering permanent incapacity if the member is taken, under the regulations, to be suffering permanent incapacity for the purposes of this Act.

View history note

permanent incapacity benefit
: see section 68AA.

View history note

personal advice
has the same meaning as in the Corporations Act 2001.

View history note

policy committee
, in relation to a regulated superannuation fund, means a board, committee or other body that:

(a) advises a trustee of the fund about such matters as are specified in the regulations; and

(b) is established by or under the governing rules of the fund.

View history note

pooled superannuation trust
means a unit trust:

(a) the trustee of which is a constitutional corporation; and

(b) that, under the regulations, is a unit trust to which this definition applies.

practical control
of an RSE licensee that is a body corporate has the meaning given by section 131EC.

View history note

premises
includes:

(a) a structure, building, aircraft, vehicle or vessel; and

(b) any land or place (whether enclosed or built on or not); and

(c) a part of a structure, building, aircraft, vehicle or vessel or of such a place.

private sector fund
means a superannuation fund covered by paragraph (a) of the definition of superannuation fund , other than a public sector fund.

View history note

procure
includes cause.

produce
includes permit access to.

protected document
(Repealed by No 54 of 1998)

View history note

protected information
(Repealed by No 54 of 1998)

View history note

prudential matter
has the meaning given by subsection 34C(4).

View history note

prudential standard
means a standard determined by APRA under subsection 34C(1).

View history note

public offer entity
means:

(a) a public offer superannuation fund; or

(b) an approved deposit fund that is not an excluded approved deposit fund; or

(c) a pooled superannuation trust.

public offer entity licence
means an RSE licence of a class provided for under subsection 29B(2).

View history note

public offer superannuation fund
has the meaning given by section 18.

public sector fund
means a superannuation fund that is:

(a) covered by paragraph (a) of the definition of superannuation fund ; and

(b) part of a public sector superannuation scheme.

View history note

public sector superannuation scheme
means a scheme for the payment of superannuation, retirement or death benefits, where the scheme is established:

(a) by or under a law of the Commonwealth or of a State or Territory; or

(b) under the authority of:

(i) the Commonwealth or the government of a State or Territory; or

(ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory.

quarter
means a period of 3 months beginning on 1 January, 1 April, 1 July and 1 October.

View history note

rectification direction
: see subsection 159(2).

View history note

rectify
, in relation to a contravention of this Act or the regulations that has occurred in relation to a superannuation entity, includes put in operation managerial or administrative arrangements that could reasonably be expected to ensure that there are no further contraventions of a similar kind.

redeem
, in relation to an interest in an approved deposit fund, includes pay an amount equal to the interest pursuant to a covenant of a kind referred to in section 53 that is contained, or taken to be contained, in the governing rules of the fund.

registered company auditor
has the same meaning as in the Corporations Act 2001.

View history note

registered organisation
means:

(a) an association registered under a law of a State or Territory as a trade union; or

(b) a society registered under a law of a State or Territory providing for the registration of friendly or benefit societies; or

(c) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009.

View history note

registrable superannuation entity
means:

(a) a regulated superannuation fund; or

(b) an approved deposit fund; or

(c) a pooled superannuation trust;

but does not include a self managed superannuation fund.

View history note

[ CCH Note: Definition of "Registrar" will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1415, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. The definition will read:

Registrar
has the meaning given by section 21.

]

regulated document
, in relation to a public offer entity, means a document:

(a) issued, or authorised to be issued, by the trustee of the entity; and

(b) that the trustee knows, or ought reasonably to know (having regard to the trustee's abilities, experience, qualifications and other attributes), may influence a person's decision:

(i) whether to apply to have a superannuation interest in the entity issued to a person; or

(ii) whether to apply to become a standard employer-sponsor of the entity.

regulated superannuation fund
has the meaning given by section 19.

Regulator
means:

(a) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by APRA (other than a provision that is administered by both APRA and ASIC) - APRA; or

(b) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by ASIC (other than a provision that is administered by both APRA and ASIC) - ASIC; or

(c) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by both APRA and ASIC - either APRA or ASIC, but, if the context requires the reference to be particularly to one of those bodies, then Regulator means that body; or

(d) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by the Commissioner of Taxation - the Commissioner of Taxation.

Note:

In relation to paragraph (c), the context may require Regulator to mean the same body as has been referred to elsewhere. For example, in subsection 344(1), the Regulator who may be requested to reconsider a decision is required by the context to be a reference to the body who made the reviewable decision.

View history note

related
,in relation to bodies corporate, has the meaning given by section 20.

related party
, of a superannuation fund, means any of the following:

(a) a member of the fund;

(b) a standard employer-sponsor of the fund;

(c) a Part 8 associate of an entity referred to in paragraph (a) or (b).

View history note

related trust
, of a superannuation fund, means a trust that a member or a standard employer-sponsor of the fund controls (within the meaning of section 70E), other than an excluded instalment trust of the fund.

View history note

relative
of an individual means the following:

(a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;

(b) a spouse of the individual or of any other individual referred to in paragraph (a).

Note:

Subsection (5) may be relevant to determining relationships for the purposes of paragraph (a) of the definition of relative .

View history note

relevant person
means:

(a) in relation to a fund or trust:

(i) if the trustee or an investment manager of the fund or trust is or includes an individual - that individual; or

(ii) if the trustee or an investment manager of the fund or trust is or includes a body corporate - a responsible officer of that body corporate; or

(iii) an auditor of the fund or trust; or

(iv) an actuary of the fund or trust; or

(v) a person who is a custodian in relation to the fund or trust; or

(b) in relation to an approved SMSF auditor:

(i) the approved SMSF auditor; or

(ii) a person who is a relevant person under paragraph (a) in relation to a self managed superannuation fund of which the approved SMSF auditor is or was an auditor; or

(c) in relation to an audit of a self managed superannuation fund:

(i) the person who is conducting, or conducted, the audit; or

(ii) a person who is a relevant person under paragraph (a) in relation to the self managed superannuation fund.

View history note

resident approved deposit fund
has the meaning given by section 20A.

View history note

resident regulated superannuation fund
means a regulated superannuation fund that is an Australian superannuation fund within the meaning of the Income Tax Assessment Act 1997.

View history note

resolution
, of an entity, means the process by which APRA or other relevant persons manage or respond to the entity:

(a) being unable to meet its obligations; or

(b) being considered likely to be unable, or being considered likely to become unable, to meet its obligations; or

(c) suspending payment, or being considered likely to suspend payment;

including through the exercise of powers and functions under this Act or another law.

View history note

responsible officer
, in relation to a body corporate, means:

(a) a director of the body; or

(b) a secretary of the body; or

(c) an executive officer of the body.

reviewable decision
means:

(a) a decision of APRA under subsection 18(6) or (7) to make a declaration; or

(aa) a decision of APRA under subsection 18(7A) to make a declaration under subsection 18(7) subject to conditions; or

(ab) a decision of APRA under subsection 18(7C) to revoke a declaration that a superannuation fund is not a public offer superannuation fund or;

(b) a decision of APRA under subsection 18(10) to revoke a declaration; or

(ba) (Repealed by No 53 of 2004)

(c) (Repealed by No 53 of 2004)

(d) (Repealed by No 53 of 2004)

(da) (Repealed by No 53 of 2004)

(db) (Repealed by No 53 of 2004)

(dc) (Repealed by No 53 of 2004)

(dd) a decision of APRA under subsection 29CA(2) to treat an application for an RSE licence as having been withdrawn; or

(de) a decision of APRA under subsection 29D(2) refusing an application for an RSE licence; or

(df) a decision of APRA under subsection 29EA(1) to impose additional conditions on an RSE licence; or

(dg) a decision of APRA under subsection 29FA(2) to treat an application for variation of an RSE licence so that it is an RSE licence of a different class as having been withdrawn; or

(dh) a decision of APRA under subsection 29FA(2) to treat an application for variation or revocation of a condition imposed on an RSE licence as having been withdrawn; or

(di) a decision of APRA to refuse to vary an RSE licence under subsection 29FC(1) so that it is an RSE licence of a different class; or

(dj) a decision of APRA to refuse to vary or revoke under subsection 29FC(1) any conditions imposed on an RSE licence; or

(dk) a decision of APRA under subsection 29FD(1) to vary or revoke any conditions imposed on an RSE licence; or

(dl) a decision of APRA under subsection 29G(1) to cancel an RSE licence; or

(dla) a decision of APRA under section 29HD to refuse to give a person approval to hold a controlling stake in an RSE licensee; or

(dm) a decision of APRA under subsection 29M(2) refusing an application for registration of a registrable superannuation entity; or

(dn) a decision of APRA under subsection 29N(2) to cancel the registration of a registrable superannuation entity; or

(do) (Repealed by No 117 of 2012)

(doa) a decision of APRA under subsection 29T(2) to refuse to authorise an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; or

(dob) a decision of APRA under subsection 29U(1) to cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; or

(doc) a decision to determine, vary or revoke a prudential standard referred to in paragraph 34C(1)(e) or (f); or

(dod) a decision of the Regulator to give or vary a direction under section 34P or 34Q; or

(dp) a decision of the Regulator refusing to give an approval under paragraph 35A(2)(b); or

(dq) a decision of the Regulator to give such an approval subject to conditions under subsection 35A(3); or

(e) a decision of the Regulator to give a notice under section 40; or

(f) a decision of the Regulator refusing to give a notice under section 40; or

(fa) a decision of the Regulator under subsection 42(1AA) or (1AC); or

(fb) a refusal of the Regulator to give an approval under subparagraph 62(1)(b)(v); or

(g) a decision of the Regulator to give a direction under section 63; or

(h) a decision of the Regulator refusing to revoke a direction under section 63; or

(ha) a decision of the Regulator to make a determination under subsection 70A(1); or

(hb) a decision of the Regulator refusing to revoke a determination under subsection 70A(1); or

(i) a decision of the Regulator refusing to make a determination under paragraph 71(1)(e); or

(j) a decision of the Regulator to revoke a determination under paragraph 71(1)(e); or

(k) a decision of the Regulator to make a determination under subsection 71(4); or

(l) a decision of the Regulator refusing to revoke a determination under subsection 71(4); or

(m) a decision of APRA under section 92 refusing to grant an arrangement approval; or

(n) a decision of APRA under section 92 revoking an arrangement approval; or

(na) a decision of APRA under subsection 93A(2) or (3) to approve or not approve a higher percentage; or

(nb) a decision of APRA under subsection 93A(4) to specify conditions to which an approval is subject; or

(nc) a decision of APRA under subsection 93A(5) to vary an approval; or

(o) a decision of APRA under subsection 95(2) refusing to approve a borrowing; or

(p) a decision of APRA under subsection 117(6) refusing to waive a requirement; or

(pa) (Repealed by No 25 of 2008)

(pb) (Repealed by No 25 of 2008)

(q) a decision of APRA under subparagraph 123(2)(b)(ii) or (3)(c)(ii); or

(qa) a decision of the Regulator under subsection 126A(1), (2) or (3) to disqualify an individual; or

(qb) a decision of the Regulator under subsection 126A(5) refusing to revoke the disqualification of an individual; or

(r) a decision of the Regulator under subsection 126B(4) refusing to allow a longer period than 14 days to make an application for waiver; or

(ra) a decision of the Regulator under subsection 126D(3) refusing to make a declaration waiving an applicant's status as a disqualified person; or

(rb) a decision of the Regulator under subsection 126F(3) refusing to waive, in whole or in part, the requirement to pay an amount under subsection 126F(2); or

(rc) a decision of the Regulator under section 128B refusing an application made under section 128A; or

(rd) a decision of the Regulator under section 128D imposing or varying conditions, or additional conditions, on a person's registration as an approved SMSF auditor; or

(re) a decision of the Regulator refusing an application to vary or revoke conditions, or additional conditions, imposed under section 128D on a person's registration as an approved SMSF auditor; or

(rf) a decision of the Regulator under subsection 128E(2) cancelling a person's registration as an approved SMSF auditor; or

(rg) a decision of the Regulator refusing an application to waive the payment of the whole or a part of a fee under subsection 128L(4); or

(rh) a decision of the Regulator to make an order under subsection 130F(2); or

(ri) a decision of the Regulator refusing an application to revoke an order under subsection 130F(8); or

(s) a decision of the Regulator to make a disqualification order under section 131; or

(t) a decision of the Regulator refusing to revoke a disqualification order under section 131; or

(ta) a decision of APRA to give a direction under section 131AA, other than a direction on the ground mentioned in paragraph 133AA(2)(a); or

(taaa) a decision of APRA to give a direction under subsection 131D(1), 131DA(1) or 131DA(3); or

(taab) a decision of APRA to vary a direction under subsection 131DC(1); or

(taac) a decision of the Regulator under subsection 131EB(1) to give a person a direction to relinquish control of an RSE licensee; or

(taa) a decision of the Regulator to suspend or remove a trustee of a superannuation entity under section 133; or

(u) a decision of the Regulator under section 141; or

(ua) a decision of APRA under subsection 242F(2) to refuse to authorise an RSE licensee to operate a regulated superannuation fund as an eligible rollover fund; or

(ub) a decision of APRA under subsection 242J(1) to cancel an authority to operate a regulated superannuation fund as an eligible rollover fund; or

(v) (Repealed by No 123 of 2001)

(w) (Repealed by No 123 of 2001)

(x) (Repealed by No 123 of 2001)

(y) (Repealed by No 53 of 1995)

(z) a decision of the Regulator under section 328 to make an exemption that applies to a particular person or a particular group of individual trustees; or

(za) (Repealed by No 154 of 2007)

(zb) a decision of the Regulator under section 332 to make a declaration that applies to a particular person or a particular group of individual trustees; or

(zc) (Repealed by No 154 of 2007)

(zd) a decision of the Regulator under section 335 to vary or revoke an exemption or declaration that applies to a particular person or a particular group of individual trustees; or

(ze) a decision of APRA refusing to give a notice under subsection 342(2) in relation to a fund; or

(zf) a decision of APRA to give a notice under subsection 342(6) in relation to a fund; or

(zg) a decision of the Regulator under subsection 347A(9).

[ CCH Note: Definition of "reviewable decision" will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1416, by inserting "or the Registrar" after "Regulator" in para (rg), effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

View history note

RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.

View history note

RSA provider
has the same meaning as in the Retirement Savings Accounts Act 1997.

View history note

RSE actuary
means a person who is appointed as an actuary of a registrable superannuation entity.

View history note

RSE audit company
means a company that is appointed as auditor of a registrable superannuation entity.

View history note

RSE audit firm
means a firm that is appointed as auditor of a registrable superannuation entity.

View history note

RSE auditor
means:

(a) an individual RSE auditor; or

(b) an RSE audit firm; or

(c) an RSE audit company.

View history note

RSE licence
means a licence granted under section 29D.

View history note

RSE licensee
means a constitutional corporation, body corporate, or group of individual trustees, that holds an RSE licence granted under section 29D.

View history note

RSE licensee law
means:

(a) this Act or the regulations; and

(aa) prudential standards; and

(b) the Financial Sector (Collection of Data) Act 2001; and

(c) the Financial Institutions Supervisory Levies Collection Act 1998; and

(ca) the Financial Accountability Regime Act 2023; and

(d) the provisions of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as applying in relation to superannuation interests; and

(e) any other provisions of any other law of the Commonwealth specified in regulations made for the purposes of this paragraph.

View history note

salary or wages
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

View history note

self managed superannuation fund
has the meaning given by sections 17A and 17B.

Note:

Subsection (4) of this section extends the meaning of self managed superannuation fund for the purposes of sections 5, 6, 42 and 42A and Part 20.

View history note

signed
, in relation to a body corporate, means executed by or on behalf of the body corporate in a way that is effective in law and that binds the body corporate.

View history note

SMSF actuary
means a person who is a Fellow or an Accredited Member of the Institute of Actuaries of Australia.

View history note

SMSF auditor number
, of an approved SMSF auditor, means the number stated under paragraph 128B(6)(b) in a certificate under subsection 128B(6) relating to the auditor's registration under section 128B.

View history note

spouse
of a person includes:

(a) another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

(b) another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

[ CCH Note: Reg 5 of the Acts Interpretation (Registered Relationships) Regulations 2019 (F2019L00280), effective 13 March 2019, provides that the following laws and kinds of relationship are prescribed for s 2E of the Acts Interpretation Act 1901:

5 Registered relationships
5
For the purposes of section 2E of the Acts Interpretation Act 1901, this section prescribes:

(a) each law of a State or Territory mentioned in column 1 of an item of the following table; and

(b) the kind of relationship described in column 2 of that item by reference to that law.

Registered relationships

Item Column 1
Law Column 2
Kind of relationship

1 Relationships Register Act 2010 (NSW) A relationship that may be registered in accordance with Part 2 of that Act

2 Relationships Act 2008 (Vic.) A registrable domestic relationship that may be registered in accordance with Part 2.2 of that Act

3 Civil Partnerships Act 2011 (Qld) A relationship that may be entered into in accordance with sections 4 and 5 of that Act

4 Relationships Register Act 2016 (SA) A relationship that may be registered in accordance with Part 2 of that Act

5 Relationships Act 2003 (Tas.) A significant relationship in relation to which a deed of relationship may be registered in accordance with Part 2 of that Act

6 Domestic Relationships Act 1994 (ACT) A civil partnership that may be entered into in accordance with sections 37C and 37D of that Act

7 Births, Deaths and Marriages Registration Act 1997 (ACT) A civil union that must be registered under section 32A of that Act

]

View history note

stake
in an RSE licensee that is a body corporate, has the same meaning as in the Financial Sector (Shareholdings) Act 1998.

View history note

standard employer-sponsor
has the meaning given by subsection 16(2).

standard employer-sponsored fund
has the meaning given by subsection 16(4).

standard employer-sponsored member
has the meaning given by subsection 16(5).

statement
(Repealed by No 123 of 2001)

View history note

stop order
(Repealed by No 123 of 2001)

View history note

subsidiary
has the same meaning as in the Corporations Act 2001.

View history note

superannuation account
has the meaning given by subsection 108A(3).

View history note

superannuation actuary
means:

(a) an RSE actuary; or

(b) an SMSF actuary.

View history note

superannuation auditor
means:

(a) an RSE auditor; or

(b) an approved SMSF auditor.

View history note

Superannuation Complaints Tribunal
(Repealed by No 13 of 2018)

View history note

superannuation data and payment matter
has the meaning given by subsection 34K(5).

View history note

superannuation data and payment regulations and standards
means:

(a) the regulations made under section 34K; and

(b) the standards issued by the Commissioner of Taxation under that section.

View history note

superannuation data and payment standard
means a standard issued by the Commissioner of Taxation under section 34K.

View history note

superannuation entity
means:

(a) a regulated superannuation fund; or

(b) an approved deposit fund; or

(c) a pooled superannuation trust.

superannuation entity affected by a reviewable decision
, in relation to a reviewable decision, means the superannuation entity in relation to which the decision was made.

superannuation entity director
has the meaning given by subsection 52A(7).

View history note

superannuation fund
means:

(a) a fund that:

(i) is an indefinitely continuing fund; and

(ii) is a provident, benefit, superannuation or retirement fund; or

(b) a public sector superannuation scheme.

superannuation interest
means a beneficial interest in a superannuation entity.

superannuation standards officer
(Repealed by No 54 of 1998)

View history note

suspended SMSF auditor
means a person for whom an order suspending a person's registration as an approved SMSF auditor is in force under section 130F.

View history note

switching fee
has the meaning given by subsection 29V(5).

View history note

taxation officer
means:

(a) a Second Commissioner of Taxation; or

(b) a Deputy Commissioner of Taxation; or

(c) a person engaged under the Public Service Act 1999, or an officer or employee of an authority of the Commonwealth, performing duties in the Australian Taxation Office; or

(d) a person engaged to provide services relating to the Australian Taxation Office.

View history note

trustee
, in relation to a fund, scheme or trust, means:

(a) if there is a trustee (within the ordinary meaning of that expression) of the fund, scheme or trust - the trustee; or

(b) in any other case - the person who manages the fund, scheme or trust.

unclaimed money
(Repealed by No 128 of 1999)

View history note

unit trust
means:

(a) a unit trust within the meaning of Division 6C of Part III of the Income Tax Assessment Act 1936 (whether established by a law of the Commonwealth or of a State or Territory, by a government agency or otherwise); or

(b) the trustee of such a trust;

as appropriate.

View history note

value
means market value, and includes amount.

virtual meeting technology
has the same meaning as in the Corporations Act 2001.

View history note

written custody requirements
(Repealed by No 53 of 2004)

View history note

year of income
has the same meaning as in the Income Tax Assessment Act 1936.

View history note

10(1A)

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The regulations may prescribe:

(a) circumstances in which a member of a superannuation fund is not a defined benefit member for the purposes of this Act, or a provision of this Act; and

(b) circumstances in which a member of a superannuation fund who is not otherwise a defined benefit member for the purposes of this Act, or a provision of this Act, is to be taken to be a defined benefit member for the purposes of this Act, or that provision.

View history note

10(2)
For the purposes of paragraph (b) of the definition of independent director in subsection (1), a director of a corporate trustee of a fund that is also an employer-sponsor of the fund is not taken to be an associate of that employer-sponsor by reason only of being such a director.

View history note

10(3)

View history reference

Without limiting the meaning of the expression member in this Act, that expression, in relation to a self managed superannuation fund, includes a person:

(a) who receives a pension from the fund; or

(b) who has deferred his or her entitlement to receive a benefit from the fund.

View history note

10(4)

View history reference

Treat an entity that is a superannuation fund as a self managed superannuation fund for the purposes of sections 5, 6, 42 and 42A, and Part 20, if:

(a) it has ceased being a self managed superannuation fund for the purposes of the rest of this Act; and

(b) the trustee of the fund is not an RSE licensee.

View history note

10(5)

View history reference

For the purposes of paragraph (a) of the definition of relative in subsection (1), if one individual is the child of another individual because of the definition of child in subsection (1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.

View history note

SECTION 10A INTERDEPENDENCY RELATIONSHIP

View history reference

10A(1) [Requirements]

Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:

(a) they have a close personal relationship; and

(b) they live together; and

(c) one or each of them provides the other with financial support; and

(d) one or each of them provides the other with domestic support and personal care.

10A(2) [Disability]

Subject to subsection (3), for the purposes of this Act, if:

(a) 2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and

(b) they do not satisfy the other requirements of an interdependency relationship under subsection (1); and

(c) the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;

they have an interdependency relationship .

10A(3) [Regulations]

The regulations may specify:

(a) matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship ; and

(b) circumstances in which 2 persons have, or do not have, an interdependency relationship .

View history note

SECTION 11

11 APPROVALS, DETERMINATIONS ETC. BY REGULATOR
If:

(a) a provision of this Act refers to an approval given, determination made or other act or thing done by the Regulator; and

(b) there is no other provision of this Act expressly authorising the Regulator to give the approval, make the determination or do the act or thing;

the Regulator is authorised to give the approval, make the determination or do the act or thing.

View history note

SECTION 11A APPROVED FORMS

11A(1) [Interpretation]

In this Act, a reference to an approved form is a reference to a form approved by the Regulator, in writing, for the purposes of the provision in which the expression appears.

11A(2) [Included information]

An approved form may require particular information to be included in the completed form.

11A(3) [Requirements or permissions]

An approved form may do either or both of the following:

(a) require or permit the form to be attached to, or to form part of, another document;

(b) require or permit the form to be given on a specified kind of data processing device or by specified electronic transmission, in accordance with specified software or other requirements.

11A(4) [Signature]

An approved form may require the form to be signed by a particular person or persons. This applies whether or not a provision of this Act also requires the form to be signed.

11A(5) [Compliance]

An approved form may make different requirements to be complied with according to whether or not the form is given in a way that is required or permitted as mentioned in paragraph (3)(b).

11A(6) [Effective use of form]

If an approved form makes a requirement as mentioned in subsection (2), (3) or (4), a purported use of the form is not effective for the purposes of this Act unless the requirement has been complied with.

View history note

SECTION 11B ELECTRONIC LODGMENT OF APPROVED FORMS

11B(1)
If a person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b):

(a) the form is taken to constitute a written notice; and

(b) if the form includes the electronic signature of a person - the form is taken to be signed by that person.

11B(2)
The person's electronic signature is a unique identification, in an electronic form, that is approved by the Regulator for use by the person.

11B(3)

View history reference

A person commits an offence if:

(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and

(b) either:

(i) the form purports to be given by another person; or

(ii) the form purports to be given on behalf of another person, and that other person has not consented to the giving of the form.

Penalty: 50 penalty units.

View history note

11B(4)

View history reference

A person commits an offence if:

(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and

(b) the form includes the electronic signature of another person who has not consented to the inclusion of the signature.

Penalty: 50 penalty units.

View history note

11B(5)
Subsections (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.

View history note

SECTION 11C DECLARATION REQUIRED IF APPROVED FORM LODGED ELECTRONICALLY ON TRUSTEE'S BEHALF

11C(1)
This section applies if:

(a) the Regulator is given an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and

(b) the form is given to the Regulator by a person on behalf of the trustee, or one or more of the trustees, of a superannuation entity.

In this section, the trustee, or each of the trustees, on whose behalf the form is given is referred to as the responsible trustee .

11C(2)

View history reference

The responsible trustee commits an offence if the responsible trustee does not, before the form is given to the Regulator, make a signed declaration that states that:

(a) the person is authorised to give the form to the Regulator on the responsible trustee's behalf; and

(b) the information in the form is correct.

Penalty: 50 penalty units.

View history note

11C(3)

View history reference

The responsible trustee commits an offence if the responsible trustee does not retain the declaration for 5 years after it is made.

Penalty: 50 penalty units.

View history note

11C(4)

View history reference

The responsible trustee commits an offence if:

(a) within the 5 year period, the Regulator requests the responsible trustee to produce the declaration to the Regulator; and

(b) the responsible trustee does not comply with the request.

Penalty: 50 penalty units.

View history note

11C(5)
Subsections (2), (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.

View history note

SECTION 11D ELECTRONIC LODGMENT - DOCUMENTS OTHER THAN APPROVED FORMS

11D(1) [Agreement and approval]

A document that is not required to be lodged in an approved form may be lodged with the Regulator electronically only if:

(a) the Regulator and the person seeking to lodge it (either on the person's own behalf or on another person's behalf) have agreed, in writing, that it may be lodged electronically; or

(b) the Regulator has approved, in writing, the electronic lodgment of documents of that kind.

11D(2) [Lodgment]

The document is taken to be lodged with the Regulator if it is lodged in accordance with the agreement or approval (including any requirements of the agreement or approval as to authentication).

View history note

SECTION 11E

11E APPROVED GUARANTEES

View history reference

In this Act, an approved guarantee is:

(a) a guarantee given by an ADI; or

(b) a guarantee given by or on behalf of the Commonwealth, a State or a Territory;

that meets the requirements that APRA, by legislative instrument, determines.

11E(2)
(Repealed by No 154 of 2007)

View history note

SECTION 11F

11F LEAD AUDITOR

View history reference

If an RSE audit firm or RSE audit company conducts an audit of a registrable superannuation entity, the lead auditor for the audit is the registered company auditor who is primarily responsible to the RSE audit firm or the RSE audit company for the conduct of the audit.

View history note

SECTION 12 ASSOCIATES

12(1) [Application of Corporations Law]

View history reference

The question whether a person is an associate of another person for the purposes of this Act is to be determined in the same way as that question would be determined under the Corporations Act 2001 if the assumptions set out in subsection (2) were made.

View history note

12(2) [Assumptions]

View history reference

The assumptions are as follows:

(a) that sections 12 and 14 and paragraphs 15(1)(b) and 16(1)(b) and (c) of that Act had not been enacted;

(b) that section 13 of that Act were not limited to Chapter 7, but extended to all provisions of that Act.

View history note

SECTION 13

13 SINGLE TRUSTEES
For the purposes of this Act:

(a) a fund, scheme or trust has a single corporate trustee if, and only if, there is only one trustee of the fund, scheme or trust and that trustee is a corporate trustee; and

(b) a fund, scheme or trust has a single individual trustee if, and only if, there is only one trustee of the fund, scheme or trust and that trustee is an individual trustee.

View history reference

(c) (Repealed by No 53 of 2004)

View history reference

View history note

SECTION 13A RSE LICENSEES THAT ARE GROUPS OF INDIVIDUAL TRUSTEES

View history reference

13A(1) [Changes in trustee group composition]

View history reference

Subject to this section, for the purposes of this Act, the regulations and the prudential standards, a change in the composition of a group of individual trustees that is an RSE licensee does not affect the continuity of the group of individual trustees for the duration of the period during which the RSE licence continues in force.

Note:

So, for example, an RSE licence granted to a group of individual trustees will not cease to continue in force, merely because of a change in the membership of the group.

View history note

13A(2) [Obligations imposed on licensee]

View history reference

An obligation that would be imposed on an RSE licensee that is a group of individual trustees of a registrable superannuation entity by a provision of this Act, the regulations or the prudential standards is imposed instead on each of the trustees but, subject to the entity's governing rules, may be discharged by any of them.

View history note

13A(3) [Discharge of responsibilities]

A person who is a member of a group of individual trustees that is an RSE licensee is not liable under any offence of strict liability or civil penalty provision of this Act or the regulations in respect of any breach of a provision of this Act or the regulations, or failure, by the RSE licensee if the person proves that he or she:

(a) made all inquiries (if any) that were reasonable in the circumstances; and

(b) after doing so, believed on reasonable grounds that the obligations of the RSE licensee were being complied with.

Note:

In a prosecution for an offence of strict liability against a provision of this Act or the regulations, a defendant bears a legal burden in relation to the matters in subsection (3) (see section 13.4 of the Criminal Code).

13A(4) [Directions, etc, given to licensee]

View history reference

If a group of individual trustees is an RSE licensee, a direction, notice or other document is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to be given to the RSE licensee if it is given it to any member of the group.

View history note

13A(5) [Requests made to licensee]

View history reference

If a group of individual trustees of a registrable superannuation entity is an RSE licensee, a request is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to have been made to the RSE licensee if it is made to any member of the group and, subject to the entity's governing rules, may be dealt with by any member of the group.

View history note

13A(6) [Signature required from licensee]

View history reference

Any requirement under this Act, the regulations or the prudential standards that a document be signed by an RSE licensee is taken, if the RSE licensee is a group of individual trustees, to be a requirement that the document be signed by each of the members of the group.

View history note

13A(7) [Provisions made by licensee]

View history reference

An RSE licensee that is a group of individual trustees is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to have provided something to a person if one of the members of the group has provided that thing to the person.

View history note

13A(8) [Effect on licensee of reviewable decisions]

For the purposes of this Act and the regulations, if an RSE licensee that is a group of individual trustees is affected by a reviewable decision, each member of the group is taken to be affected by that decision.

13A(9) [Regulations]

The regulations may exclude or modify the effect of the subsections of this section (other than subsections (2) and (3)) in relation to specified provisions.

13A(10) [Effect]

This section has effect subject to a contrary intention in a provision of this Act or regulations made for the purposes of subsection (9).

View history note

SECTION 14

14 INDEFINITELY CONTINUING FUND - APPLICATION OF RULES AGAINST PERPETUITIES
If the governing rules of a fund contain a provision the purpose of which is to avoid a breach of a rule of law relating to perpetuities, that provision does not prevent the fund from being treated as an indefinitely continuing fund for the purposes of the definition of approved deposit fund or superannuation fund in section 10.

SECTION 15 APPROVED DEPOSIT FUNDS - PAYMENTS BY TRUSTEES

15(1) [Payments on beneficiary's request]

For the purposes of paragraph (c) of the definition of approved purposes in section 10 and for the purposes of section 53, if:

(a) a beneficiary has an interest in a fund; and

(b) on the request of the beneficiary, an amount equal to the beneficiary's interest is paid by the fund:

(i) to a life insurance company or registered organisation for the purchase of an annuity in the name of the beneficiary; or

(ii) into an RSA specified by the beneficiary;

View history reference

the trustee of the fund is taken to have paid the amount to the beneficiary on request.

View history note

15(1A) [Amount equal to beneficiary's interest paid on request]

For the purposes of paragraph (c) of the definition of approved purposes in section 10 and for the purposes of section 53, if:

(a) a beneficiary has an interest in a fund; and

(b) on the request of the beneficiary, an amount equal to the beneficiary's interest is paid by the fund to:

(i) an approved deposit fund; or

(ii) a regulated superannuation fund;

the trustee of the first-mentioned fund is taken to have paid the amount to the beneficiary on request.

View history note

15(1B) [Payment not made immediately on request]

For the purposes of paragraph (c) of the definition of approved purposes in section 10, if a payment is not made immediately on request but is deferred for a period determined by the trustee concerned, the payment is taken to have been made on request.

View history note

15(2) [Beneficiary includes legal representative]

A reference in subsection (1) or (1A) to a beneficiary includes a reference to the legal personal representative of a beneficiary.

View history note

SECTION 15A DEFINITIONS OF EMPLOYEE AND EMPLOYER

15A(1) [Interpretation]

Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (10):

(a) expand the meaning of those terms; and

(b) make particular provision to avoid doubt as to the status of certain persons.

15A(2) [Employee of body corporate]

A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.

15A(3) [Employee under contract]

If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

15A(4) [Member of Commonwealth Parliament]

A member of the Parliament of the Commonwealth is an employee of the Commonwealth.

15A(5) [Member of State Parliament]

A member of the Parliament of a State is an employee of the State.

15A(6) [Member of ACT Legislative Assembly]

A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.

15A(7) [Member of NT Legislative Assembly]

A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.

15A(8) [Persons paid as performers, etc]

For the purposes of this Act:

(a) a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment; and

(b) a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment; and

(c) a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment.

15A(9) [Employee of Commonwealth, State or Territory]

Subject to subsection (10), a person who:

(a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or

(b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);

is an employee of the Commonwealth, the State or the Territory, as the case requires.

15A(10) [Member of local council]

A person who holds office as a member of a local government council is an employee of the council.

View history note

SECTION 15B MODIFIED MEANING OF MEMBER

View history reference

15B(1) [Regulations may modify]

The regulations may provide that a person is to be treated, or is not to be treated, as being a member of a superannuation fund for the purposes of this Act or specified provisions of this Act.

15B(2) [Application]

This Act applies with such modifications (if any) as are prescribed in relation to a person who is a member of a superannuation fund because of regulations made for the purposes of this section.

15B(3)
(Repealed by No 46 of 2011)

View history note

SECTION 16 DEFINITIONS ASSOCIATED WITH EMPLOYER-SPONSORSHIP

16(1) Employer-sponsor.

An employer-sponsor of a regulated superannuation fund is an employer who:

(a) contributes to the fund; or

(b) would, apart from a temporary cessation of contributions, contribute to the fund;

for the benefit of:

(c) a member of the fund who is an employee of:

(i) the employer; or

(ii) an associate of the employer; or

(d) the dependants of such a member in the event of the death of the member.

16(2) Standard employer-sponsor.

View history reference

If an employer so contributes, or would contribute, wholly or partly pursuant to an arrangement between the employer and a trustee of the regulated superannuation fund concerned, the employer is a standard employer-sponsor of the fund (as well as being an employer-sponsor of the fund). If the employer only so contributes, or would contribute, pursuant to arrangements between the employer and a member or members of the fund, the employer is not a standard employer-sponsor.

View history note

16(3) Employer-sponsored fund.

An employer-sponsored fund is a regulated superannuation fund that has at least one employer-sponsor.

16(4) Standard employer-sponsored fund.

If a regulated superannuation fund has at least one standard employer-sponsor, the fund is a standard employer-sponsored fund (as well as being an employer-sponsored fund).

16(5) Standard employer-sponsored member.

View history reference

A standard employer-sponsored member is a member of a regulated superannuation fund in respect of whom an employer-sponsor contributes, or would contribute, as mentioned in subsection (1) wholly or partly pursuant to an arrangement between the employer-sponsor and a trustee of the fund.

View history note

SECTION 17

17 PERSONS INVOLVED IN A CONTRAVENTION

View history reference

For a contravention that is not an offence, a person is involved in the contravention if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced, whether by threats or promises or otherwise, the contravention; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d) has conspired with others to effect the contravention.

View history note

SECTION 17A DEFINITION OF SELF MANAGED SUPERANNUATION FUND

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17A(1) Basic conditions - funds other than single member funds.

Subject to this section, a superannuation fund, other than a fund with only one member, is a self managed superannuation fund if and only if it satisfies the following conditions:

(a)

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it has no more than 6 members;

(b) if the trustees of the fund are individuals - each individual trustee of the fund is a member of the fund;

(c) if the trustee of the fund is a body corporate - each director of the body corporate is a member of the fund;

(d) each member of the fund:

(i) is a trustee of the fund; or

(ii) if the trustee of the fund is a body corporate - is a director of the body corporate;

(e) no member of the fund is an employee of another member of the fund, unless the members concerned are relatives;

(f)

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no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund;

(g) if the trustee of the fund is a body corporate - no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.

Note:

Section 17B contains exceptions to paragraphs (1)(f) and (g).

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17A(2) Basic conditions - single member funds.

Subject to this section, a superannuation fund with only one member is a self managed superannuation fund if and only if:

(a) if the trustee of the fund is a body corporate:

(i) the member is the sole director of the body corporate; or

(ii) the member is one of only 2 directors of the body corporate, and the member and the other director are relatives; or

(iii) the member is one of only 2 directors of the body corporate, and the member is not an employee of the other director; and

(b) if the trustees of the fund are individuals:

(i) the member is one of only 2 trustees, of whom one is the member and the other is a relative of the member; or

(ii) the member is one of only 2 trustees, and the member is not an employee of the other trustee; and

(c)

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no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund;

(d)

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if the trustee of the fund is a body corporate - no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.

Note:

Section 17B contains exceptions to paragraphs (2)(c) and (d).

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17A(3) Certain other persons may be trustees.

A superannuation fund does not fail to satisfy the conditions specified in subsection (1) or (2) by reason only that:

(a) a member of the fund has died and the legal personal representative of the member is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during the period:

(i) beginning when the member of the fund died; and

(ii) ending when death benefits commence to be payable in respect of the member of the fund; or

(b) the legal personal representative of a member of the fund is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during any period when:

(i) the member of the fund is under a legal disability; or

(ii) the legal personal representative has an enduring power of attorney in respect of the member of the fund; or

(c)

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if a member of the fund is under a legal disability because of age and does not have a legal personal representative:

(i) the parent or guardian of the member is a trustee of the fund in place of the member; or

(ii) if the trustee of the fund is a body corporate - the parent or guardian of the member is a director of the body corporate in place of the member; or

(d) an appointment under section 134 of an acting trustee of the fund is in force.

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17A(4) Circumstances in which entity that does not satisfy basic conditions remains a self managed superannuation fund.

Subject to subsection (5), if a superannuation fund that is a self managed superannuation fund would, apart from this subsection, cease to be a self managed superannuation fund, it does not so cease until the earlier of the following times:

(a)

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the time an RSE licensee of the fund is appointed;

(b) 6 months after it would so cease to be a self managed superannuation fund.

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17A(5) Subsection (4) does not apply if admission of new members.

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Subsection (4) does not, except for the purposes of section 29J, apply if the reason, or one of the reasons, why the superannuation fund would cease to be a self managed superannuation fund was the admission of one or more new members to the fund.

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17A(6) Extended meaning of employee in certain circumstances.

For the purposes of this section, a member of a fund, who is an employee of an employer-sponsor of the fund, is also taken to be an employee of another person (the other person ), if the employer-sponsor is:

(a) a relative of the other person; or

(b) either of the following:

(i) a body corporate of which the other person, or a relative of the other person, is a director;

(ii) a body corporate related to that body corporate; or

(c)

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a trustee of a trust of which the other person, or a relative of the other person, is a beneficiary; or

(d)

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a partnership, where:

(i) the other person, or a relative of the other person, is a partner in the partnership; or

(ii) the other person, or a relative of the other person, is a director of a body corporate that is a partner in the partnership; or

(iii) the other person, or a relative of the other person, is a beneficiary of a trust, if a trustee of the trust is a partner in the partnership.

Note 1:

An effect of this subsection is that a fund will not be a self managed superannuation fund if a member is employed by an employer-sponsor of the fund, and another member (who is not a relative) has a specified interest in that employer-sponsor: see paragraph (1)(e). An example of this would be where the employer-sponsor is a company of which another member is a director.

Note 2:

Another effect is that a fund will not be a self managed superannuation fund if its single member is employed by an employer-sponsor of the fund in which the other trustee of the fund (who is not a relative) has a specified interest: see subsection (2).

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17A(7)
Subsection (6) does not limit the meaning of the term employee .

17A(8) Regulations.

For the purposes of this section:

(a) a member of a fund is taken to be an employee of a person belonging to a class specified in the regulations for the purposes of this paragraph; and

(b) despite subsections (6) and (7) and section 15A, a member of a fund is not taken to be an employee of a person belonging to a class specified in the regulations for the purposes of this paragraph.

17A(9) Meaning of relative.

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In this section:

relative
, in relation to an individual, means:

(a) a parent, child, grandparent, grandchild, sibling, aunt, uncle, great-aunt, great-uncle, niece, nephew, first cousin or second cousin of the individual or of his or her spouse or former spouse; or

(b) a spouse or former spouse of the individual, or of an individual referred to in paragraph (a).

(c) (Repealed by No 134 of 2008)

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17A(9A)

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For the purposes of paragraph (a) of the definition of relative in subsection (9), if one individual is the child of another individual because of the definition of child in subsection 10(1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.

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17A(10) Disqualified persons.

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For the avoidance of doubt, subsection (3) does not permit a person, in the capacity of legal personal representative of a disqualified person (within the meaning of section 120), to be a trustee of a self managed superannuation fund or a director of a body corporate that is a trustee of a self managed superannuation fund.

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SECTION 17B DEFINITION OF SELF MANAGED SUPERANNUATION FUND - REMUNERATION OF TRUSTEES ETC.

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17B(1)
Paragraphs 17A(1)(f) and (2)(c) do not apply to remuneration for any duties or services performed by a trustee of a fund, if:

(a) the trustee performs the duties or services other than in the capacity of trustee; and

(b) the trustee is appropriately qualified, and holds all necessary licences, to perform the duties or services; and

(c) the trustee performs the duties or services in the ordinary course of a business, carried on by the trustee, of performing similar duties or services for the public; and

(d) the remuneration is no more favourable to the trustee than that which it is reasonable to expect would apply if the trustee were dealing with the relevant other party at arm's length in the same circumstances.

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17B(2)
Paragraphs 17A(1)(g) and (2)(d) do not apply to remuneration for any duties or services performed by a director of a body corporate that is a trustee of a fund, if:

(a) the director performs the duties or services other than:

(i) in the capacity of director; and

(ii) in connection with the body corporate's capacity of trustee; and

(b) the director is appropriately qualified, and holds all necessary licences, to perform the duties or services; and

(c) the director performs the duties or services in the ordinary course of a business, carried on by the director, of performing similar duties or services for the public; and

(d) the remuneration is no more favourable to the director than that which it is reasonable to expect would apply if the director were dealing with the relevant other party at arm's length in the same circumstances.

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SECTION 18 PUBLIC OFFER SUPERANNUATION FUND

18(1) Definition.

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A superannuation fund is a public offer superannuation fund if:

(a) one of the following subparagraphs applies to the fund:

(i) it is a regulated superannuation fund that is not a standard employer-sponsored fund;

(ii) it is a standard employer-sponsored fund that has at least one member:

(A) who is not a standard employer-sponsored member; and

(B) who is not a member of a prescribed class;

(iii) it is a standard employer-sponsored fund in relation to which an election under subsection (2) has been made;

(iv) a declaration under subsection (6) (which allows for funds to be declared to be public offer superannuation funds) is in force in relation to the fund; and

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(aa) the fund is not a self managed superannuation fund; and

(b) no declaration under subsection (7) (which allows for funds to be declared not to be public offer superannuation funds) is in force in relation to the fund.

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18(2) Election to be a public offer superannuation fund.

The trustee of a standard employer-sponsored fund may elect that the fund is to be treated as a public offer superannuation fund.

18(3) How an election is made.

An election must be made by giving APRA a written notice that is:

(a) in the approved form; and

(b) signed by the trustee.

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18(4) Trustee has power to make election despite anything in the governing rules.

The trustee has the power to make an election despite anything in the governing rules of the fund.

18(5) Election is irrevocable.

An election is irrevocable.

18(6) Declaration that fund is a public offer superannuation fund.

APRA may, in writing, declare a superannuation fund to be a public offer superannuation fund.

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18(7) Declaration that fund is not a public offer superannuation fund.

APRA may, in writing, declare a superannuation fund not to be a public offer superannuation fund.

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18(7A) [Declaration subject to conditions]

A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions.

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18(7B) [Breach of condition to be notified to APRA]

If a condition has been breached the trustee must immediately notify APRA, in writing, of the breach.

Penalty: 30 penalty units.

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18(7BA) [Strict liability]

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Subsection (7B) 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.

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18(7C) [Effect of breach of condition]

If APRA is satisfied, whether because of a notification under subsection (7B) or otherwise, that a condition to which the declaration is subject has been breached:

(a) APRA may revoke the declaration; and

(b) the superannuation fund is taken, with effect from the revocation, to have become a public offer superannuation fund.

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18(8) Commencement of declaration.

A declaration comes into force when it is made, or, if a later time is specified in the declaration as the time when it comes into force, it comes into force at that later time.

18(9) Cessation of declaration.

A declaration remains in force:

(a) if a time is specified in the declaration as the time whenit stops being in force - until that time, or until the declaration is revoked, whichever occurs first; or

(b) otherwise - until the declaration is revoked.

18(10) Revocation of declaration.

APRA may, in writing, revoke a declaration.

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18(11) APRA must have regard to guidelines when making or revoking a declaration.

When making or revoking a declaration, APRA must have regard to any written guidelines determined by APRA under this subsection.

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18(12) Copy of declaration or revocation to be given to trustee.

As soon as practicable after making or revoking a declaration, APRA must give the trustee of the superannuation fund concerned a copy of the instrument making or revoking the declaration.

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18A (Repealed) SECTION 18A AN EXCLUDED SUPERANNUATION FUND MAY NOT BE A PUBLIC OFFER SUPERANNUATION FUND
(Repealed by No 121 of 1999)

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SECTION 19 REGULATED SUPERANNUATION FUND

19(1) Definition.

A regulated superannuation fund is a superannuation fund in respect of which subsections (2) to (4) have been complied with.

19(2) Fund must have a trustee.

The superannuation fund must have a trustee.

19(3) Trustee must be a constitutional corporation or fund must be a pension fund.

Either of the following must apply:

(a) the trustee of the fund must be a constitutional corporation pursuant to a requirement contained in the governing rules;

(b) the governing rules must provide that the sole or primary purpose of the fund is the provision of old-age pensions.

19(4) Election by trustee.

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The trustee or trustees must have given to the Commissioner of Taxation a written notice that is:

(a) in the approved form; and

(b) signed by the trustee or each trustee;

electing that this Act is to apply in relation to the fund.

Note:

The approved form of written notice may require the trustee or the trustees to set out the tax file number of the fund. See subsection 299U(1).

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19(4A)
(Repealed by No 135 of 2020)

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19(5) Election is irrevocable.

An election made as mentioned in subsection (4) is irrevocable.

19(6) Trustee has power to make election despite anything in the governing rules etc.

The trustee or trustees have the power to make an election as mentioned in subsection (4) despite anything in the governing rules of the fund.

19(7)
(Repealed by No 49 of 2019)

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19(8)
(Repealed by No 49 of 2019)

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19(9) References to repealed provisions of OSSA.

A reference in this section to a provision of the Occupational Superannuation Standards Act 1987 includes a reference to the provision as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.

SECTION 20

20 RELATED BODIES CORPORATE

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The question whether bodies corporate are related to each other for the purposes of this Act is to be determined in the same way as that question would be determined under the Corporations Act 2001.

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SECTION 20A RESIDENT APPROVED DEPOSIT FUNDS

20A(1) Resident approved deposit funds.

For the purposes of this Act, an approved deposit fund is a resident approved deposit fund at a particular time if, and only if:

(a) either:

(i) the fund was established in Australia; or

(ii) at that time, any asset of the fund is situated in Australia; and

(b) at that time, the central management and control of the fund is in Australia; and

(c) at that time, the percentage worked out using the following formula is not less than 50%:

	Accumulated entitlements of resident members	× 100
	Total assets of fund	× 100
	where:
	*Accumulated entitlements of resident members* means the sum of so much of the value of the assets of the fund at that time as is attributable to:
	(i) deposits made to the fund before that time by or in respect of members of the fund who are residents at that time; and
	(ii) income or accretions arising from those deposits;
	*Total assets of fund* means the value of the assets of the fund at that time.

20A(2) Definitions.

In this section:

Australia
has the same meaning as in the Income Tax Assessment Act 1936.

member
includes depositor.

resident
has the same meaning as in the Income Tax Assessment Act 1936.

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SECTION 20B ACCRUED DEFAULT AMOUNTS

20B(1)
Subject to this section, the total amount attributed by the trustee, or the trustees, of a regulated superannuation fund to a member of the fund is an accrued default amount for the member if subsection (1A) or (1B) is satisfied.

20B(1A)
This subsection is satisfied if the member has given the trustee, or the trustees, of the fund no direction on the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member's underlying asset(s) ) is to be invested.

20B(1B)
This subsection is satisfied if the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member's underlying asset(s) ) is invested is one which, under the current governing rules of the fund, would be the investment option for a new member if no direction were given.

20B(2)
Such an amount is not an accrued default amount to the extent that the amount is attributed to the member in relation to a MySuper product.

20B(3)
Such an amount is not an accrued default amount :

(a) if the member is a defined benefit member of the fund; or

(b) if the fund is an eligible rollover fund; or

(c) to the extent that the member's underlying asset(s) is invested in one or more of the following:

(i) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;

(ii) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment;

(iii) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member;

(iv) an investment option under which the investment is held as cash; or

(d) to the extent that a pension is payable out of the member's underlying asset(s), because the member has satisfied a condition of release of benefits specified in a standard made under paragraph 31(2)(h).

20B(3A)
For the purposes of subsection (1A), if:

(a) benefits of a person in a regulated superannuation fund (the earlier fund ) are transferred to another regulated superannuation fund (the later fund ); and

(b) the person gave or (because of a previous application of this subsection) is taken to have given the trustee, or the trustees, of the earlier fund a direction on the investment option under which an asset (or assets) of the earlier fund is to be invested; and

(c) an amount attributable to the person is invested under an equivalent investment option offered by the later fund (the equivalent investment option );

the person is taken to have given the trustee, or the trustees, of the later fund a direction to invest in the equivalent investment option any asset (or assets) of the later fund that is attributed to the person in relation to an amount attributed to the person.

20B(4)
In this section:

investment account contract
has the same meaning as in the Life Insurance Act 1995.

life policy
has the same meaning as in the Life Insurance Act 1995.

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SECTION 21

21 OBJECT OF PART
(Repealed by No 53 of 2004)

[ CCH Note: S 21 will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch1 item 1417, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. S 21 will read:

SECTION 21 MEANING OF REGISTRAR
21
A reference in this Act to the Registrar is a reference to:

(a) if only one Commonwealth body is appointed as Registrar under section 6 of the Commonwealth Registers Act 2020 - that body; or

(b) if more than one Commonwealth body is appointed under that section, but only one Commonwealth body is appointed under that section with functions and powers in connection with this Act - the Commonwealth body appointed under that section with those functions and powers; or

(c) if more than one Commonwealth body is appointed under that section, and more than one Commonwealth body is appointed under that section with functions and powers in connection with this Act:

(i) if the reference relates to one or more particular functions or powers - any Commonwealth body so appointed with any of those particular functions or powers; or

(ii) otherwise - any of the Commonwealth bodies appointed under that section with functions and powers in connection with this Act.

]

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(Repealed) PART 2 - APPROVAL OF TRUSTEES

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22 (Repealed) SECTION 22 INTERPRETATION
(Repealed by No 53 of 2004)

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23 (Repealed) SECTION 23 APPLICATION FOR APPROVAL
(Repealed by No 53 of 2004)

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24 (Repealed) SECTION 24 FURTHER INFORMATION MAY BE REQUESTED
(Repealed by No 53 of 2004)

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25 (Repealed) SECTION 25 PERIOD WITHIN WHICH APPLICATION FOR APPROVAL IS TO BE DECIDED
(Repealed by No 53 of 2004)

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26 (Repealed) SECTION 26 DECIDING AN APPLICATION FOR APPROVAL
(Repealed by No 53 of 2004)

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27 (Repealed) SECTION 27 WHEN AN APPROVAL IS IN FORCE
(Repealed by No 53 of 2004)

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27A (Repealed) SECTION 27A APPLICATION FOR VARIATION OF AN APPROVAL
(Repealed by No 53 of 2004)

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27B (Repealed) SECTION 27B AN APPLICATION MUST BE DECIDED WITHIN A PERIOD OF TIME
(Repealed by No 53 of 2004)

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27C (Repealed) SECTION 27C APRA MAY VARY AN APPROVAL ON ITS OWN INITIATIVE
(Repealed by No 53 of 2004)

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27D (Repealed) SECTION 27D NOTIFYING THE TRUSTEE OF THE OUTCOME OF AN APPLICATION
(Repealed by No 53 of 2004)

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27E (Repealed) SECTION 27E WHEN A VARIATION OF APPROVAL COMES INTO FORCE
(Repealed by No 53 of 2004)

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28 (Repealed) SECTION 28 REVOCATION OF APPROVAL
(Repealed by No 53 of 2004)

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29 (Repealed) SECTION 29 NOTIFICATION OF CHANGE IN CIRCUMSTANCES OR BREACH OF CONDITIONS
(Repealed by No 53 of 2004)

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PART 2A - LICENSING OF TRUSTEES AND GROUPS OF INDIVIDUAL TRUSTEES

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Division 1 - Object of this Part

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SECTION 29A OBJECT OF THIS PART AND THE RELATIONSHIP OF THIS PART TO OTHER PROVISIONS

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29A(1) [Object]

The object of this Part is to set out provisions relating to the granting of RSE licences to:

(a) constitutional corporations; and

(b) other bodies corporate; and

(c) groups of individual trustees.

29A(2) [Simplified outline]

The following is a simplified outline showing some key relationships between this Part and other provisions of the Act and the regulations that trustees should be aware of:

Certain provisions may be contravened if unlicensed trustees carry out particular activities (e.g.: sections 29J and 152). The trustee, or group of individual trustees, of a fund or trust may obtain an RSE licence under this Part.

Note 1:

If the trustee is a constitutional corporation, the trustee obtaining an RSE licence may result in a fund or trust becoming an approved deposit fund or pooled superannuation trust, which are each registrable superannuation entities.

Note 2:

If the trustee or group of individual trustees makes an election under section 19, the fund may become a regulated superannuation fund. Regulated superannuation funds other than self managed superannuation funds are registrable superannuation entities.

A trustee, or group of individual trustees, that has obtained an RSE licence may have a registrable superannuation entity registered under Part 2B. Certain provisions may be contravened if certain activities are carried out while a registrable superannuation entity is not registered (e.g.: accepting contributions while the entity is unregistered may lead to an offence under section 34.)

Note:

A failure to register the fund or trust may also lead to a breach of an RSE licence condition and possible loss of the RSE licence.

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Division 2 - Classes of RSE licences

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SECTION 29B CLASSES OF RSE LICENCES

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29B(1) [Provision for classes]

There are to be classes of RSE licences.

29B(2) [Public offer entity licence]

One class of RSE licences is to be a class that enables a trustee that holds a licence of that class to be a trustee of:

(a) any public offer entity; and

(b) any other registrable superannuation entity included in a class of registrable superannuation entities specified in regulations made for the purposes of this subsection;

subject to any condition imposed on that licence under subsection 29EA(3).

Note 1:

An RSE licence of this class is called a public offer entity licence : see subsection 10(1).

Note 2:

Only constitutional corporations may hold public offer entity licences: see paragraph 29D(1)(g).

29B(3) [Specified other entities licence]

Another class of RSE licences is to be a class that enables a trustee that:

(a) holds a licence of that class; or

(b) is a member of a group of individual trustees that holds a licence of that class;

to be a trustee of any registrable superannuation entity included in a class of registrable superannuation entities (other than a class of public offer entities) specified in regulations made for the purposes of this subsection, subject to any condition imposed on that licence under subsection 29EA(3).

29B(4) [Other classes of licence to be specified]

The regulations may provide for other classes of RSE licences. For each such class, the regulations must specify the classes of registrable superannuation entities of which a trustee that:

(a) holds a licence of that class; or

(b) is a member of a group of individual trustees that holds a licence of that class;

is enabled to be a trustee, subject to any condition imposed on that licence under subsection 29EA(3).

29B(5) [Entities can be specified for more than one licence]

The classes of registrable superannuation entity that the regulations may specify in relation to a particular class of RSE licence may include one or more classes of registrable superannuation entity that the regulations specify in relation to another class of RSE licence.

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Division 3 - Applying for RSE licences

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SECTION 29C APPLICATIONS FOR RSE LICENCES

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29C(1) Who may apply for RSE licences.

A constitutional corporation may apply to APRA for an RSE licence of any class.

29C(2) [Non-constitutional corporations]

A body corporate that is not a constitutional corporation may apply to APRA for an RSE licence of any class other than a class that would enable it to be a trustee of a public offer entity.

29C(3) [Group of individual trustees]

A group of individual trustees may apply to APRA for an RSE licence of any class other than a class that would enable each of the members of the group to be a trustee of a public offer entity.

29C(4) Requirements for applications.

An application for an RSE licence must:

(a) be in the approved form; and

(b) contain the information required by the approved form; and

(c) be accompanied by the application fee (if any) prescribed by regulations made for the purposes of this paragraph.

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(d) (Repealed by No 117 of 2012)

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(e) (Repealed by No 117 of 2012)

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29C(5) [Regulations may prescribe fees]

Regulations made for the purposes of paragraph (4)(c) may prescribe different application fees for applications for different classes of RSE licences.

29C(6) Notifying certain changes while applications are pending.

If:

(a) a body corporate applies for an RSE licence; and

(b) after the application is made, but before APRA decides the application, another director is added to, or removed from the board;

the body corporate must notify APRA, in the approved form, about the change to the membership of the board as soon as practicable after that change occurs.

Note:

Part 9 has requirements about equal representation rules.

29C(7) [Changes in trustee group composition during application]

If:

(a) a group of individual trustees applies for an RSE licence; and

(b) after the application is made, but before APRA decides the application, another trustee is added to, or removed from the group;

a member of the group must notify APRA, in the approved form, about the change to the membership of the group as soon as practicable after that change occurs.

Note:

Part 9 has requirements about equal representation rules.

29C(8)
(Repealed by No 117 of 2012)

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29C(9) [Non-compliance]

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An application is taken not to comply with this section if subsection (6) or (7) is contravened.

Note:

APRA cannot grant an RSE licence while the application does not comply with this section: see paragraph 29D(1)(c).

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SECTION 29CA APRA MAY REQUEST FURTHER INFORMATION

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29CA(1) [Notice requesting information]

If a body corporate or group of individual trustees has applied for an RSE licence, APRA may give the body corporate or a member of the group a notice requesting the body or group to give APRA, in writing, specified information relating to the application by a specified time that is reasonable in the circumstances.

29CA(2) [Non-compliance]

APRA may decide to treat an application by a body corporate or group of individual trustees for an RSE licence as having been withdrawn if the body or group:

(a) does not comply with a request to provide information under this section; and

(b) does not have a reasonable excuse for not complying.

29CA(3) [Notice of APRA's decision]

If APRA decides under subsection (2) to treat an application for an RSE licence as having been withdrawn, APRA must take all reasonable steps to ensure that the body that made the application, or a member of the group that made the application, is given a notice informing the body or group of:

(a) APRA's decision; and

(b) the reasons for that decision;

as soon as practicable after making the decision.

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29CB (Repealed) SECTION 29CB PERIOD ETC. FOR DECIDING APPLICATIONS FROM EXISTING TRUSTEES IN LICENSING TRANSITION PERIOD
(Repealed by No 69 of 2023)

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SECTION 29CC PERIOD FOR DECIDING APPLICATIONS

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29CC(1)

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APRA must decide an application for an RSE licence within 90 days after receiving it, unless APRA extends the period for deciding the application under subsection (2).

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29CC(2)

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APRA may extend the period for deciding the application by up to 30 days if APRA informs the body corporate, or a member of the group, that made the application of the extension:

(a) in writing; and

(b) within 90 days after receiving the application.

View history note

29CC(3)
If APRA extends the period for deciding the application, it must decide the application within the extended period.

29CC(4)
If APRA has not decided the application by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.

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Division 4 - Grant of RSE licences

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SECTION 29D GRANT OF RSE LICENCES

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29D(1)
APRA must grant an RSE licence to a body corporate, or group of individual trustees, that has applied for an RSE licence if, and only if:

(a)

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APRA has no reason to believe that:

(i) if the application is made by a body corporate - the body corporate; or

(ii) if the application is made by a group of individual trustees - the group as a whole or any member of the group;

would fail to comply with the RSE licensee law or Chapter 2M of the Corporations Act 2001 if the RSE licence were granted; and

(b) APRA has no reason to believe that:

(i) if the application is made by a body corporate - the body corporate; or

(ii) if the application is made by a group of individual trustees - the group as a whole or any member of the group;

would fail to comply with any condition imposed on the RSE licence if it were granted; and

(c) the application for the licence complies with section 29C and is for a class of licence that the body corporate or group of individual trustees may apply for under that section; and

(d)

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APRA is satisfied that:

(i) if the application is made by a body corporate - the body corporate meets the requirements of the prudential standards relating to fitness and propriety for RSE licensees; or

(ii) if the application is made by a group of individual trustees - the group as a whole meets the requirements of the prudential standards relating to fitness and propriety for RSE licensees and each of the members of the group meets the requirements of the prudential standards relating to fitness and propriety for members of groups of trustees that are RSE licensees; and

(e) (Repealed by No 117 of 2012)

(f) in a case where the applicant is not a constitutional corporation - APRA is satisfied that:

(i) if the application is made by a body corporate - the body corporate; or

(ii) if the application is made by a group of individual trustees - each member of the group;

only intends to act as a trustee of one or more superannuation funds that have governing rules providing that the sole or primary purpose of the fund is the provision of old-age pensions; and

(g)

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in a case where the application is for a licence of a class that enables a trustee that holds a licence of the class to be a trustee of a public offer entity subject to any condition imposed under subsection 29EA(3) - APRA is satisfied that the applicant is a constitutional corporation; and

(h)

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the application has not been withdrawn, treated as withdrawn under subsection 29CA(2) or taken to have been refused under subsection 29CC(4).

Note 1:

Conditions apply to all RSE licences. See Division 5.

Note 2:

An RSE licence may only be granted to a body corporate or a group of individual trustees because only bodies corporate and groups of individual trustees may apply for RSE licences. See section 29C.

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29D(2)
Otherwise APRA must refuse the application.

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29DA (Repealed) SECTION 29DA CAPITAL REQUIREMENTS
(Repealed by No 117 of 2012)

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SECTION 29DB

29DB NOTICE OF CLASS OF LICENCE

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If APRA decides to grant an RSE licence to a body corporate or group of individual trustees, APRA must give the body corporate or group an RSE licence that specifies the class of licence granted.

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SECTION 29DC DOCUMENTS REQUIRED TO BEAR ABNs

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29DC(1) [Which documents]

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An RSE licensee must ensure that its ABN is included in:

(a) each document that it gives to APRA in the capacity of an RSE licensee; and

(b) any other document in which it identifies itself as an RSE licensee of a registrable superannuation entity; and

(c) if the RSE licensee is a body corporate - any document in which the body corporate identifies itself as a trustee of a registrable superannuation entity; or

(d) if the RSE licensee is a group of individual trustees - any document in which a member of the group identifies itself as a trustee of a registrable superannuation entity or as a member of a group of individual trustees that are the RSE licensee of a registrable superannuation entity.

[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)

Subsection 29DC(1) of the Act is modified by inserting the words "or its ABN" after the words "RSE licence" where first occurring.]

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29DC(2) [APRA may approve non-compliance]

However, an RSE licensee is not required to comply with subsection (1) in respect of a particular document if it has been given written approval by APRA not to be required to ensure that its ABN is included in that document or in a class of documents that includes that document.

[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)

Section 29DC of the Act is modified by adding the following subsection after subsection (2):

(3) In this section, "ABN" has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

]

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SECTION 29DD LICENCE PERIOD

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29DD(1) [Commencement]

An RSE licence comes into force at the later of:

(a) the time when it is granted; or

(b) the time specified on the licence as the time when it comes into force.

29DD(2) [Application period]

An RSE licence continues in force, subject to:

(a) any imposition of licence conditions under Division 5; or

(b) any variation or revocation of the licence conditions, or variation of the licence class, under Division 6;

until the RSE licence is cancelled under Division 7.

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SECTION 29DE

29DE APRA TO GIVE NOTICE OF REFUSAL OF APPLICATIONS

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If APRA refuses an application by a body corporate or a group of individual trustees for an RSE licence, APRA must take all reasonable steps to ensure that the body or a member of the group is given a notice informing the body or group of:

(a) APRA's refusal of the application; and

(b) the reasons for that refusal;

as soon as practicable after refusing the application.

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Division 5 - Conditions on RSE licences

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SECTION 29E CONDITIONS IMPOSED ON ALL LICENCES AND ON GROUPS OF LICENCES

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Conditions imposed on all RSE licences

29E(1)
The following conditions are imposed on all RSE licences:

(a)

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the RSE licensee and, if the RSE licensee is a group of individual trustees, each of the members of the group, must comply with the RSE licensee law and Chapter 2M of the Corporations Act 2001;

(b) the duties of a trustee in respect of each registrable superannuation entity of which it is an RSE licensee must be properly performed by:

(i) if the RSE licensee is a body corporate - the body corporate; or

(ii) if the RSE licensee is a group of individual trustees - each of the members of the group;

(ba)

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the RSE licensee must:

(i) have an ABN; or

(ii) have made an application for an ABN that has not been refused under the A New Tax System (Australian Business Number) Act 1999;

(c)

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(Repealed by No 117 of 2012)

(d) the RSE licensee must ensure that each registrable superannuation entity of which it is the RSE licensee is:

(i) registered under Part 2B; or

(ii) the subject of an application for registration under Part 2B that has not been finally determined or otherwise disposed of;

(e) (Repealed by No 117 of 2012)

(ea)

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the RSE licensee must ensure that each registrable superannuation entity of which it is an RSE licensee has an ABN;

(f)

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the RSE licensee must notify APRA of any change in the composition or control of the RSE licensee (see subsection (2)) within 14 days after the change takes place;

(g) the RSE licensee must comply with any other conditions prescribed by regulations made for the purposes of this paragraph.

Note 1:

Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see Division 1 of Part 16A) or cancellation of the licence (see section 29G).

Note 2:

An RSE licensee must notify APRA if the RSE licensee breaches a licence condition: see section 29JA.

Note 3:

Additional conditions may be imposed on various types of RSE licences (see subsections (3) to (7)) or a particular RSE licence (see section 29EA).

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Change in the composition of the RSE licensee

29E(2)

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For the purposes of paragraph (1)(f), a change in the composition or control of the RSE licensee is:

(a)

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if the RSE licensee is a body corporate:

(i) a person becoming, or ceasing to be, a director of the RSE licensee; or

(ii) a person's stake in the RSE licensee changing; or

(b) if the RSE licensee is a group of individual trustees - an individual becoming, or ceasing to be, a member of the group.

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29E(3)

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An additional condition is imposed on each RSE licence that enables a trustee that holds a licence of that class to be a trustee of a public offer entity. The condition is that the RSE licensee that holds the licence must continue to be a constitutional corporation.

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Licences held by RSE licensees that are not constitutional corporations

29E(4)
The following additional condition is imposed on each RSE licence that is not held by a constitutional corporation:

(a) if the RSE licensee that holds the licence is a body corporate - that the body; or

(b) if the RSE licensee is a group of individual trustees - that the members of the group;

only act as a trustee of superannuation funds that have governing rules providing that the sole or primary purpose of the fund is the provision of old-age pensions.

Licences held by groups of individual trustees

29E(5)
The following additional conditions are imposed on each RSE licence held by a group of individual trustees:

(a) the members of the group must make all reasonable efforts to ensure that the group always has at least 2 members;

(b) any continuous period for which the group has less than 2 members must be 90 days or less.

Note:

Paragraph 29E(1)(f) requires APRA to be notified of any change in the composition of the RSE licensee.

Licences held by bodies corporate

29E(5A)

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An additional condition is imposed on each RSE licence held by an RSE licensee that is a body corporate. The condition is that the RSE licensee must not have a duty to act in the interests of another person, other than a duty that arises in the course of:

(a) performing the RSE licensee's duties, or exercising the RSE licensee's powers, as a trustee of a registrable superannuation entity; or

(b) providing personal advice.

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Licences held by RSE licensees of transferee funds

29E(6)
An additional condition is imposed on each RSE licence held by an RSE licensee of a fund that has had benefits of members and beneficiaries transferred to it from a transferor fund under Part 18 (whether while the RSE licensee was the RSE licensee of the fund or earlier). The condition is that, while the RSE licensee is the RSE licensee of the fund, the RSE licensee assumes the obligation to pay benefits to those who were members or beneficiaries of the transferor fund immediately before the transfer.

RSE licensees authorised to offer MySuper products

29E(6A)

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The following additional conditions are imposed on each RSE licensee that is authorised to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product:

(a) the RSE licensee must ensure that the governing rules of the fund are not varied so that section 29TC is no longer satisfied in relation to that class of interest;

(b) the RSE licensee must ensure that the governing rules of the fund relating to that class of interest are not contravened.

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RSE licensees who apply for authority to offer MySuper product

29E(6B)

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An additional condition is imposed on each RSE licensee who makes an application under section 29S for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product. The condition is that the RSE licensee must give effect to elections made in accordance with sections 29SAA, 29SAB and 29SAC.

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RSE licensees who apply for authority to operate eligible rollover funds

29E(6C)

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An additional condition is imposed on each RSE licensee who makes an application under section 242A for authority to operate a regulated superannuation fund as an eligible rollover fund. The condition is that the RSE licensee must give effect to an election made in accordance with section 242B.

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RSE licensees authorised to operate eligible rollover funds

29E(6D)

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An additional condition is imposed on each RSE licensee that is authorised to operate a regulated superannuation fund as an eligible rollover fund. The condition is that the RSE licensee must ensure that the governing rules of the fund are not varied so that:

(a) the only purpose of the fund is no longer to be a temporary repository for amounts transferred to the fund from other regulated superannuation funds in circumstances allowed by the RSE licensee law; or

(b) a single diversified investment strategy is no longer adopted in relation to assets of the fund.

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Complying with rules relating to merging multiple accounts in a superannuation entity

29E(6E)

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The following additional condition is imposed on each RSE licence that relates to a superannuation entity for which the RSE licensee has obligations under section 108A. The condition is that the RSE licensee must ensure that the rules that that section requires in relation to the superannuation entity are complied with.

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Prescribed conditions imposed on classes of licences

29E(7)
An additional condition prescribed by a regulation made for the purposes of this subsection as a condition applying to all RSE licences of a specified class is imposed on each RSE licence of that class.

29E(8)
A specified class mentioned in subsection (7) may be a class other than a class provided for under subsection 29B(2) or (3) or under regulations made for the purposes of subsection 29B(4).

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SECTION 29EA ADDITIONAL CONDITIONS IMPOSED ON INDIVIDUAL LICENCES BY APRA

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29EA(1)
APRA may, at any time, impose an additional condition on an RSE licence by giving the RSE licensee a notice setting out the additional condition.

29EA(2)
A condition imposed under subsection (1) must not be inconsistent with any condition imposed by, or under, section 29E on an RSE licence.

Note 1:

Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see Division 1 of Part 16A) or cancellation of the licence (see section 29G).

Note 2:

An RSE licensee must notify APRA if the RSE licensee breaches a licence condition: see section 29JA.

Note 3:

RSE licensees may apply to APRA to have conditions imposed under this section varied or revoked: see section 29F.

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29EA(2A)
A condition may be expressed to have effect despite anything in the prudential standards.

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29EA(2B)

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If:

(a) a condition is expressed to have effect as mentioned in subsection (2A); and

(b) a provision of the prudential standards (the inconsistent provision ) is inconsistent with the condition to any extent;

the inconsistent provision is to be disregarded to the extent of the inconsistency in determining, for the purposes of any law of the Commonwealth, whether the RSE licensee has complied with its obligations under the prudential standards.

View history note

S 29EA(2B) inserted by No 135 of 2020, s 3 and Sch 9 item 61, effective 1 January 2021.

29EA(3)
Without limiting subsection (1), an additional condition imposed under that subsection on an RSE licence may provide that the body corporate that is the RSE licensee, or each of the members of a group of individual trustees that is the RSE licensee, must not act as a trustee under that RSE licence for a registrable superannuation entity other than:

(a) a registrable superannuation entity specified in the condition; or

(b) a registrable superannuation entity included in the class of registrable superannuation entities specified in the condition.

29EA(4)
Without limiting subsection (1), an additional condition imposed under that subsection on an RSE licence may provide that the RSE licensee must ensure that a fund specified in the condition, or in a class of funds specified in the condition, must comply with the alternative agreed representation rules whenever section 92 applies to the fund. However, before imposing such a condition, APRA must have regard to any written guidelines determined by APRA under this subsection.

29EA(5)
If the RSE licensee is also a financial services licensee:

(a) APRA must consult ASIC before imposing a condition that, in APRA's opinion, might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and

(b) APRA must inform ASIC about the imposition of any condition not covered by paragraph (a) within one week after the condition is imposed.

29EA(6)
A failure to comply with a requirement of subsection (5) does not invalidate the imposition of any condition.

29EA(7)
An additional condition imposed under this section comes into force on the later of:

(a) the day on which APRA gives the RSE licensee the notice of the condition; or

(b) the day specified in the notice as the day on which the condition comes into force.

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29EB (Repealed) SECTION 29EB DIRECTIONS TO COMPLY WITH LICENCE CONDITIONS
(Repealed by No 40 of 2019)

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Division 6 - Varying RSE licences

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SECTION 29F APPLICATIONS FOR VARIATION OF RSE LICENCES

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29F(1) [Application for variation]

An RSE licensee may apply to APRA for one or both of the following:

(a) variation of its RSE licence so that the RSE licence is an RSE licence of a different class;

(b) variation or revocation of a condition that APRA has imposed on its RSE licence under section 29EA.

29F(2) [Requirements for application]

An application under this section must:

(a) be in the approved form; and

(b) contain the information required by the approved form; and

(c) if the application is for a variation of an RSE licence so that it is an RSE licence of a different class - be accompanied by the application fee (if any) prescribed for the type of variation by regulations made for the purposes of this paragraph.

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SECTION 29FA APRA MAY REQUEST FURTHER INFORMATION

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29FA(1) [Notice requesting further information]

APRA may give an RSE licensee that makes an application under section 29F a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application by a specified time that is reasonable in the circumstances.

29FA(2) [Non-compliance]

APRA may decide to treat an application under section 29F as having been withdrawn if the RSE licensee:

(a) does not comply with a request to provide information under this section; and

(b) does not have a reasonable excuse for not complying.

29FA(3) [Notice of APRA's decision]

If APRA decides to treat an application under section 29F as having been withdrawn, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee of:

(a) APRA's decision; and

(b) the reasons for that decision;

as soon as practicable after making the decision.

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SECTION 29FB PERIOD FOR DECIDING APPLICATIONS

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29FB(1) [Time period]

APRA must decide an application under section 29F within 60 days of receiving the application, unless APRA extends the period for deciding the application under subsection (2).

29FB(2) [Extension]

APRA may extend the period for deciding an application under section 29F by up to 60 days if APRA informs the RSE licensee of the extension:

(a) in writing; and

(b) within 60 days of receiving the application.

29FB(3) [Application of extension]

If APRA extends the period for deciding an application under section 29F, it must decide the application within the extended period.

29FB(4) [Effect of no decision]

If APRA has not decided an application under section 29F by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.

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SECTION 29FC APRA MAY VARY RSE LICENCES IN ACCORDANCE WITH APPLICATIONS

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29FC(1) [Variation]

APRA may, by notice to an RSE licensee:

(a) vary the RSE licensee's RSE licence so that it is an RSE licence of a different class; or

(b) vary or revoke a condition that APRA has imposed on the RSE licence under section 29EA;

in accordance with an application under section 29F.

29FC(2) [Conditions for variation]

However:

(a) an RSE licence must not be varied so that it becomes an RSE licence of a particular class unless APRA is satisfied that the RSE licensee will comply with any conditions imposed on that class of RSE licence; and

(b) a condition as varied under paragraph (1)(b) must not be inconsistent with any condition imposed by section 29E; and

(c) if the RSE licensee is also a financial services licensee:

(i) APRA must consult ASIC before varying the RSE licence so that it is an RSE licence of a different class, if, in APRA's opinion, the variation might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and

(ii) APRA must consult ASIC before varying or revoking a condition that, in APRA's opinion, might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and

(iii) APRA must consult ASIC before varying a condition so that it would, in APRA's opinion, become a condition that might reasonably be expected to have an effect as described in subparagraph (ii); and

(iv) APRA must inform ASIC about the variation or revocation of any condition not covered by subparagraph (i), (ii) or (iii) within one week after the condition is varied or revoked.

29FC(3) [Non-compliance with conditions for financial services licensee]

A failure to comply with a requirement of paragraph (2)(c) does not invalidate:

(a) the variation of an RSE licence so that it is an RSE licence of a different class; or

(b) the variation or revocation of a licence condition.

29FC(4) [APRA's discretion towards applications]

APRA is not required to vary the class of, or vary or revoke any condition of, an RSE licence in the terms requested by an RSE licensee in an application under section 29F.

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SECTION 29FD APRA MAY VARY OR REVOKE LICENCE CONDITIONS ON ITS OWN INITIATIVE

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29FD(1) [Power to revoke]

APRA may, on its own initiative, vary or revoke any condition that it imposed on an RSE licence under section 29EA.

29FD(2) [Conditions on revocation]

However:

(a) a condition as varied under subsection (1) must not be inconsistent with any condition imposed by section 29E; and

(b) if the RSE licensee that holds the licence is also a financial services licensee:

(i) APRA must consult ASIC before varying or revoking a condition that, in APRA's opinion, might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and

(ii) APRA must consult ASIC before varying a condition so that it would, in APRA's opinion, become a condition that might reasonably be expected to have an effect as described in subparagraph (i); and

(iii) APRA must inform ASIC about the variation or revocation of any condition not covered by subparagraph (i) or (ii) within one week after the condition is varied or revoked.

29FD(3) [Non-compliance with conditions for financial services licensee]

A failure to comply with a requirement of paragraph (2)(b) does not invalidate the variation or revocation of a condition.

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SECTION 29FE NOTIFICATION OF APRA'S DECISIONS UNDER THIS DIVISION

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29FE(1) [When notice required]

APRA must give a notice to an RSE licensee if APRA:

(a) varies the RSE licensee's RSE licence under section 29FC so that it is an RSE licence of a different class; or

(b) varies or revokes, under section 29FC or 29FD, a condition that APRA imposed on the RSE licence under section 29EA.

29FE(2) [Contents of notice]

The notice must:

(a) if paragraph (1)(a) applies - specify the class of the RSE licence after the variation; and

(b) if paragraph (1)(b) applies:

(i) identify the licence condition being varied or revoked; and

(ii) specify any conditions imposed under section 29EA to which the licence is subject after the variation or revocation comes into force; and

(c) state the reasons for the variation or revocation; and

(d) specify the day, not earlier than the day on which APRA gives the notice, on which the variation or revocation comes into force.

29FE(3) [Contents of notice of refusal]

If APRA refuses an application for a variation or revocation under section 29FC, APRA must take all reasonable steps to ensure that the RSE licensee that made the application is given a notice informing it of:

(a) APRA's refusal of the application; and

(b) the reasons for the refusal;

as soon as practicable after refusing the application.

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SECTION 29FF WHEN VARIATIONS OR REVOCATIONS COME INTO FORCE ETC.

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29FF(1) [Variations affecting class of licence]

If, under section 29FC, APRA varies an RSE licence so that it is an RSE licence of a different class:

(a) the variation comes into force on the day specified in the notice under paragraph 29FE(2)(d); and

(b) the variation remains in force until:

(i) the licence is again varied so that it is an RSE licence of a different class; or

(ii) the licence is cancelled.

29FF(2) [Variations affecting conditions]

If, under section 29FC or 29FD, APRA varies a condition imposed on an RSE licence:

(a) the variation comes into force on the day specified in the notice under paragraph 29FE(2)(d); and

(b) the variation remains in force until:

(i) the condition is varied in an inconsistent manner; or

(ii) the condition is revoked; or

(iii) the licence is cancelled.

29FF(3) [Revocations]

If, under section 29FC or 29FD, APRA revokes a condition imposed on an RSE licence, the revocation comes into force on the day specified in the notice under paragraph 29FE(2)(d).

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Division 7 - Cancelling RSE licences

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SECTION 29G CANCELLATION OF RSE LICENCES

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29G(1)

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APRA may, in writing, cancel an RSE licence.

Note:

In some circumstances, APRA must inform or consult ASIC (see section 29GA).

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29G(2)
Without limiting subsection (1), APRA may cancel an RSE licence under that subsection if:

(a) the RSE licensee has requested, in the approved form, that the licence be cancelled; or

(b) the RSE licensee is a body corporate and is a disqualified person for the purposes of Part 15; or

(c) the RSE licensee has breached a condition imposed on the licence; or

(d) APRA has reason to believe that the RSE licensee will breach a condition imposed on the licence; or

(e) the RSE licensee has failed to comply with a direction by APRA under subsection 131D(1) or 131DA(1); or

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(f) APRA has reason to believe that the RSE licensee will fail to comply with a direction by APRA under subsection 131D(1) or 131DA(1).

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(v) (Repealed by No 70 of 2015)

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29G(3)
(Repealed by No 25 of 2008)

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29G(4)
If APRA cancels an RSE licence it must take all reasonable steps to ensure that the body corporate or a member of the group that held the RSE licensee is given a notice informing the body corporate or group:

(a) that APRA has cancelled the licence; and

(b) of the reasons for the cancellation.

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SECTION 29GA CANCELLATION OF RSE LICENCES OF FINANCIAL SERVICES LICENSEES

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29GA(1) [Consultation with ASIC]

Before cancelling the RSE licence of an RSE licensee that is also a financial services licensee, APRA must consult ASIC if, in APRA's opinion, the cancellation might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides.

29GA(2) [Information to be given to ASIC]

If APRA cancels the RSE licence of an RSE licensee that is also a financial services licensee, APRA must inform ASIC of the cancellation within one week after the cancellation.

29GA(3) [Non-compliance]

A failure to comply with a requirement of this section does not invalidate the cancellation of an RSE licence.

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SECTION 29GB

29GB APRA MAY ALLOW RSE LICENCE TO CONTINUE IN EFFECT

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In a notice that APRA gives to an RSE licensee cancelling its RSE licence, APRA may specify that the RSE licence continues in effect as though the cancellation had not happened for the purposes of:

(a) a specified provision, administered by APRA, of this Act, the regulations or the prudential standards; or

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(b) a specified provision, administered by APRA, of any other law of the Commonwealth;

in relation to specified matters, a specified period, or both.

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Division 8 - Approval to hold a controlling stake in an RSE licensee

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Subdivision A - Application of this Division

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SECTION 29H

29H APPLICATION

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This Division only applies in relation to an RSE licensee that is a body corporate.

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Subdivision B - Applying for approval

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SECTION 29HA APPLICATION FOR APPROVAL TO HOLD A CONTROLLING STAKE

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29HA(1)
A person may apply to APRA for approval to hold a controlling stake in an RSE licensee.

29HA(2)
The application must:

(a) be in the approved form; and

(b) contain the information required by the approved form.

29HA(3)
If:

(a) a person applies for approval to hold a controlling stake in an RSE licensee; and

(b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct;

the person must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct.

29HA(4)
An application is taken not to comply with this section if subsection (3) is contravened.

[ CCH Note: For persons who are exempt from compliance with s 29HA, see Superannuation Industry (Supervision) Act exemption No. 1 of 2023 (F2023L01078).]

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SECTION 29HB

29HB APRA MAY REQUEST FURTHER INFORMATION

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APRA may give a person who has applied for approval to hold a controlling stake in an RSE licensee a notice requesting the person to give APRA, in writing, specified information relating to the application.

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SECTION 29HC PERIOD FOR DECIDING APPLICATIONS FOR APPROVAL

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29HC(1)
APRA must decide an application by a person for approval to hold a controlling stake in an RSE licensee:

(a) within 90 days after receiving the application; or

(b) if the applicant was requested to provide information under section 29HB - within 90 days after:

(i) receiving from the person all of the information the person was requested to provide under that section; or

(ii) all notices relating to that information being disposed of;

unless APRA extends the period for deciding the application under subsection (2).

29HC(2)
APRA may extend the period for deciding an application by a person for approval to hold a controlling stake in an RSE licensee by up to 30 days if APRA informs the person of the extension:

(a) in writing; and

(b) within 90 days after receiving the application.

29HC(3)
If APRA extends the period for deciding the application, it must decide the application within the extended period.

29HC(4)
If APRA has not decided an application for approval to hold a controlling stake in an RSE licensee by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.

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Subdivision C - Approval

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SECTION 29HD

29HD APPROVAL TO HOLD A CONTROLLING STAKE IN AN RSE LICENSEE

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APRA must give approval for a person to hold a controlling stake in an RSE licensee if, and only if:

(a) the application for approval complies with section 29HA; and

(b) the applicant has provided to APRA all information that the applicant was requested under section 29HB to provide, or the request has been disposed of; and

(c) APRA has no reason to believe that, because of the person's controlling stake in the RSE licensee, or the way in which that controlling stake is likely to be used, the RSE licensee may be unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.

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SECTION 29HE

29HE NOTICE OF APPROVAL

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If APRA gives a person approval to hold a controlling stake in an RSE licensee, APRA must notify the RSE licensee in writing of the approval.

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SECTION 29HF

29HD APRA TO GIVE NOTICE OF REFUSAL OF APPROVAL

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If APRA refuses an application by a person for approval to hold a controlling stake in an RSE licensee, APRA must take all reasonable steps to ensure that the person is given a notice:

(a) informing it of APRA's refusal of the application; and

(b) setting out the reasons for the refusal;

as soon as practicable after refusing the application.

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Division 9 - Offences and self-incrimination

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SECTION 29J BEING TRUSTEE OF A REGISTRABLE SUPERANNUATION ENTITY WHILE UNLICENSED ETC.

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29J(1) [Licence requirements]

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A person must not be a trustee, or act as a trustee, of a registrable superannuation entity unless at least one of the following paragraphs apply:

(a) the person holds an RSE licence that enables the person to be the trustee of the entity;

(b) the person is a member of a group of individual trustees that holds an RSE licence that enables the members of the group to each be a trustee of the entity.

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(c) (Repealed by No 53 of 2004)

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(d) (Repealed by No 53 of 2004)

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(e) (Repealed by No 53 of 2004)

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29J(2) [Evidential burden]

Despite subsection 13.3(3) of the Criminal Code, a defendant does not bear an evidential burden in relation to any matter in subsection (1) of this section.

29J(3) [Offence]

A person that contravenes subsection (1) commits an offence.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

29J(4) [Bodies corporate]

A person must not be a trustee of a registrable superannuation entity, or act as a trustee of a registrable superannuation entity, if the person:

(a) is a body corporate; and

(b) is not the only trustee of the registrable superannuation entity.

29J(5) [Offence]

A person that contravenes subsection (4) commits an offence.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

29J(6) [Authorisations, etc]

This section does not prevent an RSE licensee from engaging or authorising persons to act on its behalf.

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SECTION 29JA FAILING TO NOTIFY BREACH OF LICENCE CONDITION

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29JA(1)

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If an RSE licensee becomes aware that:

(a) the RSE licensee has breached or will breach a condition imposed on its RSE licence; and

(b) the breach is or will be significant (see subsection (1A));

the RSE licensee must give APRA a written report about the breach as soon as practicable, and in any case within 30 days, after becoming aware of the breach.

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29JA(1A)

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For the purposes of subsection (1), a breach is or will be significant if the breach is or will be significant having regard to any one or more of the following factors:

(a) the number or frequency of similar previous breaches;

(b) the impact the breach has or will have on the RSE licensee's ability to fulfil its obligations as trustee of the superannuation entity;

(c)

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the extent to which the breach indicates that the RSE licensee's arrangements to ensure compliance with the RSE licensee law or Chapter 2M of the Corporations Act 2001 might be inadequate;

(d) the actual or potential financial loss arising or that will arise from the breach to the beneficiaries of the entity or to the RSE licensee;

(e) any other matters prescribed by regulations made for the purposes of this paragraph.

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29JA(2)
A person commits an offence if:

(a) the person is:

(i) a body corporate that is an RSE licensee; or

(ii) a member of a group of individual trustees that is an RSE licensee; and

(b) the RSE licensee is in breach of subsection (1).

Penalty: 50 penalty units.

29JA(3)
Subsection (2) is an offence of strict liability.

Note 1:

For strict liability , see section 6.1 of the Criminal Code.

Note 2:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

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29JB (Repealed) SECTION 29JB NOT COMPLYING WITH DIRECTION TO COMPLY WITH LICENCE CONDITIONS
(Repealed by No 40 of 2019)

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29JC (Repealed) SECTION 29JC NOT COMPLYING WITH DIRECTION TO MODIFY RISK MANAGEMENT STRATEGY
(Repealed by No 117 of 2012)

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SECTION 29JCA FALSE REPRESENTATION ABOUT STATUS AS RSE LICENSEE

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29JCA(1)
A person commits an offence if:

(a) the person makes a representation; and

(b) the representation is that the person is, or is a member of a group that is, an RSE licensee; and

(c) the representation is false.

Penalty: 60 penalty units.

29JCA(2)
Strict liability applies to subsection (1).

Note:

For strict liability , see section 6.1 of the Criminal Code.

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SECTION 29JCB HOLDING A CONTROLLING STAKE IN AN RSE LICENSEE WITHOUT APPROVAL

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29JCB(1)
A person commits an offence if:

(a) the person holds a controlling stake in an RSE licensee; and

(b) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee.

Penalty: 400 penalty units for each day on which the person holds a controlling stake in the RSE licensee without approval.

29JCB(2)
Strict liability applies to subsection (1).

[ CCH Note: For persons who are exempt from compliance with s 29JCB, see Superannuation Industry (Supervision) Act exemption No. 1 of 2023 (F2023L01078).]

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SECTION 29JD

29JD BREACH DOES NOT AFFECT VALIDITY OF ISSUE OF SUPERANNUATION INTERESTS ETC.

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A breach of section 29J, 29JA or 131DD does not affect the validity of the issue of a superannuation interest or of any other act.

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29JE (Repealed) SECTION 29JE SELF INCRIMINATION
(Repealed by No 154 of 2007)

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PART 2B - REGISTRABLE SUPERANNUATION ENTITIES

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Division 1 - Object of this Part

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SECTION 29K OBJECT ETC. OF THIS PART

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29K(1)
The object of this Part is to provide for the registration of registrable superannuation entities.

29K(2)
Registration is significant because an RSE licensee may breach the licence condition imposed by paragraph 29E(1)(d) if a registrable superannuation entity of which it is the RSE licensee is not registered.

Note:

Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see paragraph 131D(2)(b)) or cancellation of the licence (see section 29G).

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Division 2 - Applying for registration

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SECTION 29L APPLICATIONS FOR REGISTRATION

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29L(1) Who may apply for registration.

An RSE licensee may apply to APRA for registration of a registrable superannuation entity.

29L(2) Requirements for applications.

An application for registration of a registrable superannuation entity must:

(a) be in the approved form; and

(b) contain the information required by the approved form; and

(ba) state the RSE licensee's and the entity's ABNs; and

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(c) be accompanied by an up-to-date copy of the trust deed by which the registrable superannuation entity is constituted (except to the extent that the trust deed is constituted by the governing rules of the entity); and

(d) be accompanied by an up-to-date copy of the governing rules of the registrable superannuation entity (except to the extent that the governing rules are constituted by the law of the Commonwealth or by unwritten rules).

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(e) (Repealed by No 117 of 2012)

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(f) (Repealed by No 117 of 2012)

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Note:

If the RSE licensee is a group of individual trustees, the copy or statement must be signed by each of the members of the group: see subsection 13A(6).

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29L(3) Notifying certain changes while applications are pending.

If:

(a) an RSE licensee applies for registration of a registrable superannuation entity; and

(b) after the application is made but before APRA decides the application, the trust deed (other than the governing rules of the entity) by which the entity is constituted is varied or revoked and replaced;

the RSE licensee must lodge an up-to-date copy of the trust deed with APRA as soon as practicable after the trust deed is varied or revoked and replaced.

29L(4) [Variation of governing rules while application pending]

If:

(a) an RSE licensee applies for registration of a registrable superannuation entity; and

(b) after the application is made but before APRA decides the application, any governing rules of the entity (that are not constituted by the law of the Commonwealth or by unwritten rules) are varied or revoked and replaced;

the RSE licensee must lodge an up-to-date copy of the governing rules (that are not constituted by the law of the Commonwealth or by unwritten rules) with APRA as soon as practicable after the governing rules are varied or revoked and replaced.

29L(5)
(Repealed by No 117 of 2012)

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29L(6) [Non-compliance]

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An application is taken not to comply with this section if subsection (3) or (4) is contravened.

Note:

APRA cannot register an entity while the application does not comply with this section: see paragraph 29M(1)(a).

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29L(7) Lapsed applications.

An application for registration lapses if:

(a) it was made by an RSE licensee; and

(b) the RSE licensee ceases to be an RSE licensee before:

(i) APRA makes a decision on the application for registration; or

(ii) if APRA's decision with respect to the application is subject to review under this Act - before the review is finally determined or otherwise disposed of.

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SECTION 29LA

29LA APRA MAY REQUEST FURTHER INFORMATION

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APRA may give an RSE licensee that has applied for registration of a registrable superannuation entity a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application.

Note:

A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 29LB(1)(b).

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SECTION 29LB PERIOD FOR DECIDING APPLICATIONS FOR REGISTRATION

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29LB(1) [Period]

APRA must decide an application by an RSE licensee for registration of a registrable superannuation entity:

(a) within 21 days after receiving the application; or

(b) if the applicant was requested to provide information under section 29LA - within 21 days after:

(i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or

(ii) all notices relating to that information being disposed of;

unless APRA extends the period for deciding the application under subsection (2).

29LB(2) [Extension]

APRA may extend the period for deciding an application by an RSE licensee for registration of a registrable superannuation entity by up to 7 days if APRA informs the RSE licensee of the extension:

(a) in writing; and

(b) within the period in which it would otherwise be required to decide the application under subsection (1).

29LB(3) [Application of extension]

If APRA extends the period for deciding an application for registration of a registrable superannuation entity, it must decide the application within the extended period.

29LB(4) [Effect of no decision]

If APRA has not decided an application for registration of a registrable superannuation entity by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.

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Division 3 - Registration

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SECTION 29M REGISTRATION OF REGISTRABLE SUPERANNUATION ENTITY

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29M(1) [Conditions for registration]

APRA must register a registrable superannuation entity if, and only if:

(a) the application for registration complies with section 29L; and

(b) the applicant has provided to APRA all information that the applicant was requested, under section 29LA, toprovide, or the request has been disposed of; and

(c) APRA is satisfied that nothing in the governing rules of the entity conflicts with Part 6; and

(d) (Repealed by No 117 of 2012)

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(e) the applicant for registration holds an RSE licence that enables:

(i) if the applicant is a body corporate - the body corporate; or

(ii) if the applicant is a group of individual trustees - each member of the group;

to be a trustee of that entity.

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29M(2) [Refusal]

Otherwise APRA must refuse to register the entity.

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SECTION 29MA

29MA NOTICE OF REGISTRATION

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If APRA registers a registrable superannuation entity, APRA must notify the RSE licensee of the entity in writing of the registration.

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SECTION 29MB DOCUMENTS REQUIRED TO BEAR ABNs

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29MB(1) [Documents]

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After a registrable superannuation entity is registered, the RSE licensee of the entity must ensure that the entity's ABN is included in:

(a) each document that the RSE licensee gives to APRA that relates to the entity; and

(b) any other document in which the RSE licensee identifies itself as the RSE licensee of the entity; and

(c) if the RSE licensee is a body corporate - any document in which the body corporate identifies itself as a trustee of the entity; and

(d) if the RSE licensee is a group of individual trustees - any document that a member of the group gives to APRA or in which a member of the group identifies itself as a trustee of the entity or as a member of a group of individual trustees that are the RSE licensee of the entity.

[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)

Subsection 29MB(1) of the Act is modified by inserting the words "or its ABN" after the words "registration number" where first occurring.]

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29MB(2) [APRA may waive requirement]

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However, an RSE licensee is not required to comply with subsection (1) in respect of a particular document if the RSE licensee has been given written approval by APRA not to ensure that the ABN is included in that document or in a class of documents that includes that document.

[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)

Section 29MB of the Act is modified by adding the following subsection after subsection (2):

(3) In this section, "ABN" has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

]

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SECTION 29MC

29MC APRA TO GIVE NOTICE OF REFUSAL OF APPLICATIONS

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If APRA refuses an application by an RSE licensee for registration of a registrable superannuation entity, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice:

(a) informing it of APRA's refusal of the application; and

(b) setting out the reasons for the refusal;

as soon as practicable after refusing the application.

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Division 4 - Cancelling registration

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SECTION 29N CANCELLING REGISTRATION

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29N(1) [Documentary evidence]

APRA must cancel the registration of a registrable superannuation entity if a document that:

(a) is a reporting document within the meaning of the Financial Sector (Collection of Data) Act 2001; and

(b) relates to the entity; and

(c) was given to APRA under that Act;

states that the entity has been wound up.

29N(1A) [Fund becomes SMSF]

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APRA may cancel the registration of a superannuation entity that has become a self managed superannuation fund.

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29N(2) [Other grounds]

APRA may cancel the registration of a registrable superannuation entity if APRA is satisfied, on reasonable grounds, that:

(a) the entity has no beneficiaries and no assets; and

(b) there are no outstanding claims against the entity for benefits or other payments; and

(c) other circumstances (if any) prescribed by regulations made for the purposes of this paragraph exist.

29N(3) [Notice]

If APRA cancels the registration of a registrable superannuation entity under subsection (2), APRA must take all reasonable steps to ensure that the RSE licensee of the entity is given a notice:

(a) stating that APRA has cancelled the registration of the entity; and

(b) setting out the reasons for the cancellation;

as soon as practicable after cancelling the registration of the entity.

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Division 5 - RSE licensees must provide information about registrable superannuation entities

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Subdivision A - Annual members' meetings

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SECTION 29P ANNUAL MEMBERS' MEETING

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RSE licensees must hold annual members' meetings

29P(1)
The RSE licensee of a registrable superannuation entity must hold an annual meeting of members of the entity for each year of income of the entity.

Notice of meeting

29P(2)
The RSE licensee must give notice of the annual members' meeting to each of the following:

(a) all members of the registrable superannuation entity;

(b) if the RSE licensee is a body corporate - all responsible officers of the body corporate;

(c)

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any individual, company or firm that is the RSE auditor of the registrable superannuation entity;

(ca)

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any individual, company or firm that has been an RSE auditor of the registrable superannuation entity for the year of income of the entity;

(d) any person who has been an actuary of the registrable superannuation entity during the year of income of the entity.

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29P(3)
The RSE licensee must:

(a)

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set out in the notice:

(i) if there is only one location at which to physically attend the annual members' meeting - the date, time and place for the meeting; and

(ii) if there are 2 or more locations at which to physically attend the annual members' meeting - the date and time for the meeting at each location, and the main location for the meeting; and

(iii) if virtual meeting technology is to be used in holding the annual members' meeting - sufficient information to allow persons to participate in the meeting by means of the technology; and

(aaa) include in the notice the agenda of matters to be discussed at the annual members' meeting; and

(aa)

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include in the notice links to each of the following reports that are publicly available on the registrable superannuation entity's website:

(i) the financial report for the year of income of the entity;

(ii) the directors' report for the year of income of the entity;

(iii) the auditor's report on the financial report for the year of income of the entity; and

(b) include with the notice any other information prescribed by the regulations; and

(c) give the notice, and any information required to be included with the notice, in the manner (if any) prescribed by the regulations; and

(d) give the notice, and any information required to be included with the notice:

(i) no later than 6 months after the end of the year of income of the entity; and

(ii) at least 21 days before the meeting.

[ CCH Note: S 29(3) was amended by No No 69 of 2023, s 3 and Sch 4 item 66, by substituting para (a) and (aa) for para (a). This amendment has been editorially changed to renumber the newly inserted, first occurring para (aa) as para (aaa), in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003.]

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29P(3A)
Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of paragraph (3)(b) may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in a reporting standard, made by APRA under the Financial Sector (Collection of Data) Act 2001, as in force or existing from time to time.

Timing of meeting

29P(4)
The meeting must be held within 3 months after the notice of the meeting is given in accordance with subsections (2) and (3).

Place and time of meetings and presence at meetings

29P(4A)

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The RSE licensee may hold the annual members' meeting:

(a) at one or more physical venues; or

(b) at one or more physical venues and using virtual meeting technology; or

(c) using virtual meeting technology only.

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29P(4B)

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The place at which the annual members' meeting is held is taken to be:

(a) if the meeting is held at only one physical venue (whether or not it is also held using virtual meeting technology) - that physical venue; or

(b) if the meeting is held at more than one physical venue (whether or not it is also held using virtual meeting technology) - the main physical venue of the meeting as set out in the notice of the meeting; or

(c) if the meeting is held using virtual meeting technology only - the registered address of, or an address for service of notices on, the registrable superannuation entity as contained in a register kept by APRA under regulations made for the purposes of subsection 353(2).

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29P(4C)

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The time at which the annual members' meeting is held is taken to be the time at the place at which the meeting is taken to be held in accordance with subsection (4B).

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29P(4D)

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A person who attends the annual members' meeting (whether at a physical venue or by using virtual meeting technology) is taken for all purposes to be present in person at the meeting while so attending.

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Conduct of an annual members' meeting

29P(5)
At the annual members' meeting, the RSE licensee must give members of the registrable superannuation entity reasonable opportunities to ask questions about:

(a) the registrable superannuation entity; and

(b) if the RSE licensee is a body corporate - the RSE licensee and the responsible officers of the RSE licensee; and

(c) if the RSE licensee is a group of individual trustees - each of the individual trustees; and

(d) any audit of the registrable superannuation entity for the year of income of the entity; and

(e) any actuarial investigation of the registrable superannuation entity during the year of income of the entity; and

(f) any information included with the notice of the meeting.

Minutes of meeting

29P(6)
The RSE licensee must ensure that:

(a) minutes of the annual members' meeting are prepared; and

(b) those minutes include the answers to any questions asked at the meeting that a person is obliged to answer either at or after the meeting under sections 29PB, 29PC, 29PD or 29PE; and

(c) those minutes are made available to all members on the registrable superannuation entity's website.

Subsection (1) does not apply in relation to certain entities

29P(7)
Subsection (1) does not apply in relation to a registrable superannuation entity that is:

(a)

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a superannuation fund with no more than 6 members; or

(b) an excluded approved deposit fund; or

(c) a pooled superannuation trust; or

(d) an eligible rollover fund.

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Offence

29P(8)
A person commits an offence if:

(a) the person is:

(i) a body corporate that is an RSE licensee; or

(ii) a member of a group of individual trustees that is an RSE licensee; and

(b) the RSE licensee contravenes subsection (1), (2), (3), (4), (5) or (6).

Penalty: 50 penalty units.

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SECTION 29PA OBLIGATION TO ATTEND AN ANNUAL MEMBERS' MEETING

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29PA(1)
If:

(a) the RSE licensee of a registrable superannuation entity is a body corporate; and

(b) any of the following persons is given notice of an annual members' meeting for the entity in accordance with subsections 29P(2) and (3):

(i) the Chair of the board of directors of the RSE licensee;

(ii) a director of the RSE licensee;

(iii) an executive officer of the RSE licensee;

the person must attend the meeting.

Penalty: 50 penalty units.

29PA(2)
A member of a group of individual trustees that is an RSE licensee of a registrable superannuation entity must attend an annual members' meeting for the entity.

Penalty: 50 penalty units.

29PA(3)

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If:

(a) a person (the relevant person ) has been an individual RSE auditor of a registrable superannuation entity for a year of income of the entity; and

(b) the relevant person is given notice of an annual members' meeting for the entity for the year in accordance with subsections 29P(2) and (3);

then:

(c) if the relevant person is a practising auditor - the relevant person must attend the meeting; and

(d) if:

(i) the relevant person is not a practising auditor; and

(ii)another person is the individual RSE auditor of the entity;
the individual RSE auditor must attend the meeting; and

(e) if:

(i) the relevant person is not a practising auditor; and

(ii) a firm or company is the RSE auditor of the entity; and

(iii) the firm or company is conducting an audit of the entity;
the lead auditor of the audit must attend the meeting.

Penalty: 50 penalty units.

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29PA(3A)

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If:

(a) a firm or company has been an RSE auditor of a registrable superannuation entity for a year of income of the entity; and

(b) the firm or company is given notice of an annual members' meeting for the entity for the year in accordance with subsections 29P(2) and (3); and

(c) a person (the relevant lead auditor ) was the lead auditor of the audit of the entity that was conducted by the firm or company for the year;

then:

(d) if:

(i) the firm or company conducts audits; and

(ii) the relevant lead auditor is a member or employee of the firm or a director or employee of the company;

the relevant lead auditor must attend the meeting; and

(e) if:

(i) the firm or company conducts audits; and

(ii) paragraph (d) does not apply; and

(iii) a person (the relevant audit team member ) was a member of the audit team that was involved in the audit of the entity that was conducted by the firm or company for the year; and

(iv) the relevant audit team member is a member or employee of the firm or a director or employee of the company; and

(v) the relevant audit team member is not the lead auditor of the audit of the entity;

the relevant audit team member must attend the meeting; and

(f) if:

(i) the firm or company does not conduct audits; and

(ii) another person is the individual RSE auditor of the entity;

the individual RSE auditor must attend the meeting; and

(g) if:

(i) the firm or company does not conduct audits; and

(ii) another firm or company is the RSE auditor of the entity; and

(iii) the other firm or company is conducting an audit of the entity;

the lead auditor of the audit must attend the meeting.

Penalty: 50 penalty units.

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29PA(3B)

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If:

(a) 2 or more persons are required by paragraph (3A)(e) to attend a meeting; and

(b) one of those persons attends the meeting;

the remaining persons are not required to attend the meeting.

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29PA(4)
A person who has been an actuary of a registrable superannuation entity during a year of income of the entity must attend an annual members' meeting for the entity relating to that year if the person is given notice of the meeting in accordance with subsections 29P(2) and (3).

Penalty: 50 penalty units.

29PA(5)

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Subsections (1), (2), (3), (3A) and (4) do not apply to a person if the person has a reasonable excuse for not attending.

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29PA(6)
Subsection (1) does not apply to a director of an RSE licensee of a registrable superannuation entity, if:

(a) other directors of the entity have attended the meeting; and

(b) the number of directors of the entity who attended the meeting is no less than the number of directors that would constitute a quorum for a meeting of the board of directors of the entity.

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SECTION 29PB OBLIGATION ON RESPONSIBLE OFFICERS OF RSE LICENSEES TO ANSWER QUESTIONS

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29PB(1)
This section applies if a member of a registrable superannuation entity asks a responsible officer of the RSE licensee for the entity a question at the meeting.

29PB(2)
The responsible officer of the RSE licensee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.

Penalty: 50 penalty units.

29PB(3)
Subsection (2) does not apply:

(a) if the question is not relevant to:

(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or

(ii) the registrable superannuation entity; or

(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or

(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or

(d) in any other circumstances prescribed by the regulations.

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SECTION 29PC OBLIGATION ON INDIVIDUAL TRUSTEES TO ANSWER QUESTIONS

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29PC(1)
This section applies if a member of a registrable superannuation entity asks an individual trustee for the entity a question at an annual members' meeting for the entity.

29PC(2)
The individual trustee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.

Penalty: 50 penalty units.

29PC(3)
Subsection (2) does not apply:

(a) if the question is not relevant to:

(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or

(ii) the registrable superannuation entity; or

(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or

(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or

(d) in any other circumstances prescribed by the regulations.

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SECTION 29PD OBLIGATION ON AUDITOR TO ANSWER QUESTIONS

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29PD(1)

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This section applies if:

(a) a person is required by subsection 29P(3) or (3A) to attend an annual members' meeting for a registrable superannuation entity for a year of income of the entity; and

(b) a member of the entity asks the person a question at the meeting.

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29PD(2)

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The person must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.

Penalty: 50 penalty units.

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29PD(3)
Subsection (2) does not apply:

(a)

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if the question is not relevant to:

(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or

(ii) the registrable superannuation entity; or

(iii) an audit of the registrable superannuation entity carried out by the individual RSE auditor, the RSE audit firm or the RSE audit company, as the case may be; or

(iv) any matter that might reasonably be expected to be apparent to the auditorof the entity in relation to the entity; or

(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or

(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or

(d) in any other circumstances prescribed by the regulations.

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SECTION 29PE OBLIGATION ON ACTUARY TO ANSWER QUESTIONS

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29PE(1)
This section applies if a member of a registrable superannuation entity asks a person who has been an actuary of the registrable superannuation entity during a year of income of the entity a question at an annual members' meeting for the entity for the year.

29PE(2)
The actuary must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.

Penalty: 50 penalty units.

29PE(3)
Subsection (2) does not apply:

(a) if the question is not relevant to:

(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or

(ii) the registrable superannuation entity; or

(iii) an actuarial investigation of the registrable superannuation entity carried out by the actuary; or

(iv) any matter that might reasonably be expected to be apparent to the actuary of the entity in relation to the entity; or

(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or

(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or

(d) in any other circumstances prescribed by the regulations.

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Subdivision B - Other obligations in relation to information

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29QB (Repealed) SECTION 29QB CERTAIN INFORMATION REQUIRED TO BE MADE PUBLICLY AVAILABLE
(Repealed by No 29 of 2023)

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SECTION 29QC OBLIGATION TO GIVE CONSISTENT INFORMATION

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29QC(1)
Subject to subsection (2), if:

(a) an RSE licensee is required to give information to APRA under a reporting standard (within the meaning of the Financial Sector (Collection of Data) Act 2001); and

(b) under the reporting standard, the information is required to be calculated in a particular way; and

(c) the same or equivalent information is given by the RSE licensee to a person other than an agency of the Commonwealth or of a State or Territory, whether or not by publishing the information on a website;

the RSE licensee must ensure that the information given to the other person is calculated in the same way as the information given to APRA.

[ CCH Note 1: ASIC Class Order [CO 14/541] (as amended by ASIC Superannuation (Amendment) Instrument 2018/1080 [F2018L01779]) provides relief as below:

Exemption
4
A RSE licensee of a registrable superannuation entity does not have to comply with subsection 29QC(1) of the Act until 1 January 2024.

]

[ CCH Note 2: ASIC Superannuation (Disclosure and Reporting Consistency Obligations) Instrument 2023/941 (F2023L01739) continues the relief from compliance with s 29QC(1) previously provided under CO14/541 (which has been repealed by ASIC Superannuation (Repeal) Instrument 2023/942 (F2023L01738) effective 22 December 2023, as below:

PART 2 - EXEMPTION

5 Obligation to give consistent information
5
An RSE licensee does not have to comply with subsection 29QC(1) of the Act before 1 January 2026.

PART 3 - REPEAL

6 Repeal
6
This instrument is repealed at the start of 1 January 2026.

]

29QC(2)
Subsection (1) does not apply to information given to the other person in circumstances prescribed by the regulations.

29QC(3)
A person commits an offence if:

(a) the person is:

(i) a body corporate that is an RSE licensee; or

(ii) a member of a group of individual trustees that is an RSE licensee; and

(b) the RSE licensee contravenes subsection (1).

Penalty: 50 penalty units.

29QC(4)
Subsection (3) is an offence of strict liability.

Note 1:

For strict liability, see section 6.1 of the Criminal Code.

Note 2:

Chapter 2 of the Criminal Code sets out the general principles of criminal liability and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

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(Repealed) Division 6 - Offences and self-incrimination

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PART 2C - MYSUPER

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Division 1 - Object of this Part

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SECTION 29R OBJECT OF THIS PART

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29R(1)
It is intended that all MySuper products will be simple products sharing common characteristics.

29R(2)
The object of this Part is to ensure that a class of beneficial interest in a regulated superannuation fund is not offered as a MySuper product unless it has those characteristics.

29R(3)
This is done by requiring the RSE licensee of a regulated superannuation fund to obtain authority from APRA before offering a class of beneficial interest in the fund as a MySuper product.

29R(4)
The ability of an RSE licensee to offer a MySuper product is significant for the purposes of the Superannuation Guarantee (Administration) Act 1992. Under that Act, employers will need to pay contributions for an employee who has no chosen fund into a fund that offers a MySuper product, in order to meet the choice of fund requirements and so avoid an increased individual superannuation guarantee shortfall for the employee.

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Division 2 - Applying for authority

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SECTION 29S APPLICATION FOR AUTHORITY TO OFFER A MYSUPER PRODUCT

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Who may apply?

29S(1)
An RSE licensee may apply to APRA for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.

Requirements for applications

29S(2)
An application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product must:

(a) be in the approved form; and

(b) contain the information required by the approved form; and

(c) state the RSE licensee's and the fund's ABNs; and

(d) be accompanied by an up-to-date copy of the trust deed by which the fund is constituted (except to the extent that the trust deed is constituted by governing rules of the fund); and

(e) be accompanied by an up-to-date copy of the governing rules of the fund (except to the extent that the governing rules are constituted by the law of the Commonwealth or by unwritten rules); and

(f) be accompanied by elections made in accordance with each of the following sections:

(i) section 29SAA;

(ii) section 29SAB;

(iii) section 29SAC.

View history reference

View history note

Notifying certain changes while applications are pending

29S(3)
If:

(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and

(b) after the application is made but before APRA decides the application, the trust deed (other than the governing rules of the fund) by which the fund is constituted is varied or revoked and replaced;

the RSE licensee must lodge an up-to-date copy of the trust deed with APRA as soon as practicable after the trust deed is varied or revoked and replaced.

29S(4)
If:

(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and

(b) after the application is made but before APRA decides the application, any governing rules of the fund (that are not constituted by the law of the Commonwealth or by unwritten rules) are varied or revoked and replaced;

29S(5)
If:

(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and

(b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct;

the RSE licensee must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct.

29S(6)
An application is taken not to comply with this section if subsection (3), (4) or (5) is contravened.

Note:

APRA cannot give authority to offer a class of beneficial interest in the fund as a MySuper product while the application does not comply with this section: see paragraph 29T(1)(a).

Lapsed applications

29S(7)
An application for authority lapses if:

(a) it was made by an RSE licensee; and

(b) the RSE licensee ceases to be an RSE licensee before:

(i) APRA makes a decision on the application for authority; or

(ii) if APRA's decision with respect to the application is subject to review under this Act - the review is finally determined or otherwise disposed of.

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SECTION 29SAA ELECTION TO TRANSFER ACCRUED DEFAULT AMOUNTS

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29SAA(1)
An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:

(a) the RSE licensee elects that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, the RSE licensee will:

(i) attribute to the MySuper product each amount that is an accrued default amount for a member of the fund who is eligible to hold the MySuper product, unless the member directs the RSE licensee in writing to attribute the amount to another MySuper product or an investment option within a choice product in the fund; and

(ii) do so before the end of a period of 30 days beginning on the day on which notice of authority to offer the class of beneficial interest in the fund as a MySuper product is given to the RSE licensee under section 29TD; and

(b) the RSE licensee elects that the RSE licensee will, before the end of the action period, take the action required under the prudential standards in relation to the following:

(i) each amount that is an accrued default amount for a member of the fund who is not eligible to hold a MySuper product offered by the fund;

(ii) each amount that is an accrued default amount for a member of another regulated superannuation fund of the RSE licensee that does not offer a MySuper product; and

(c) the election is in writing; and

(d) the election is in the approved form.

29SAA(2)
The action period , for the purposes of paragraph (1)(b), in relation to an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, ends at the end of a period of 90 days beginning on:

(a) if APRA authorises the RSE licensee to offer the class of beneficial interest in the fund as a MySuper product - the day on which notice of that authority is given to the RSE licensee under section 29TD; or

(b) if APRA refuses the application - the day on which notice of the refusal is given to the RSE licensee under section 29TE.

29SAA(3)
If an RSE licensee makes an election under this section, the RSE licensee must comply with any requirements prescribed in the regulations in relation to:

(a) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is attributed, or a decision is taken to continue to attribute the amount, to a MySuper product or an investment option within a choice product in the fund; and

(b) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is moved to another fund.

View history note

SECTION 29SAB

29SAB ELECTION TO TRANSFER ASSETS ATTRIBUTED TO A MYSUPER PRODUCT IF AUTHORISATION CANCELLED

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An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:

(a) the RSE licensee elects:

(i) to take the action required under the prudential standards in relation to any asset or assets of the fund that are attributed to the MySuper product, if the authority to offer the relevant class of beneficial interest in the fund as a MySuper product is cancelled under subsection 29U(1); and

(ii) to do so before the end of a period of 90 days beginning on the day on which notice of the cancellation is given to the RSE licensee under subsection 29U(3); and

(b) the election is in writing; and

(c) the election is in the approved form.

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SECTION 29SAC ELECTION NOT TO CHARGE MYSUPER MEMBERS FOR PAYMENT OF CONFLICTED REMUNERATION

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29SAC(1)
An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:

(a) the RSE licensee elects that, if the authority is given, the RSE licensee will not charge any MySuper member a fee in relation to the MySuper product, all or part of which relates directly or indirectly to costs incurred by a trustee or the trustees of the fund:

(i) in paying conflicted remuneration to a financial services licensee, or a representative of a financial services licensee; or

(ii) in paying an amount to another person that a trustee of the fund knows, or reasonably ought to know, relates to conflicted remuneration paid by that other person to a financial services licensee, or a representative of a financial services licensee; and

(b) the election is in writing; and

(c) the election is in the approved form.

29SAC(2)

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In this section:

conflicted remuneration
has the same meaning as in the Corporations Act 2001, subject to the extension of that meaning in subsection (3).

View history note

representative
, of a financial services licensee, has the same meaning as in the Corporations Act 2001.

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29SAC(3)
In this section, conflicted remuneration also has the meaning it would have if:

(a) financial product advice provided to the RSE licensee mentioned in subsection (1) by a financial services licensee, or a representative of a financial services licensee, mentioned in subparagraph (1)(a)(i) or (ii) were provided to the RSE licensee as a retail client; and

(b) financial product advice provided to the other person mentioned in subparagraph (1)(a)(ii) by a financial services licensee, or a representative of a financial services licensee, mentioned in that subparagraph were provided to the other person as a retail client.

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SECTION 29SA

29SA APRA MAY REQUEST FURTHER INFORMATION

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APRA may give an RSE licensee that has applied for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application.

Note:

A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 29SB(1)(b).

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SECTION 29SB PERIOD FOR DECIDING APPLICATIONS FOR AUTHORITY

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29SB(1)
APRA must decide an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product:

(a) within 60 days after receiving the application; or

(b) if the applicant was requested to provide information under section 29SA - within 60 days after:

(i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or

(ii) all notices relating to that information being disposed of;

unless APRA extends the period for deciding the application under subsection (2).

29SB(2)
APRA may extend the period for deciding an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by up to 60 days if APRA informs the RSE licensee of the extension:

(a) in writing; and

(b) within the period in which it would otherwise be required to decide the application under subsection (1).

29SB(3)
If APRA extends the period for deciding an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, it must decide the application within the extended period.

29SB(4)
If APRA has not decided an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.

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Division 3 - Authority

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SECTION 29T AUTHORITY TO OFFER A MYSUPER PRODUCT

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29T(1)

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APRA must authorise an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if, and only if:

(a) the application for authority complies with section 29S; and

(b) the applicant has provided to APRA all information that the applicant was requested, under section 29SA, to provide, or the request has been disposed of; and

(c) the fund is registered under Part 2B; and

(d)

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either:

(i) the fund has 7 or more members; or

(ii) APRA is satisfied that the fund will, if authority is given, have 7 or more members within a period specified in the authority; and

(e)

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the fund is not an eligible rollover fund; and

(f) one of the following subparagraphs applies:

(i) the licensee is not already authorised to offer another class of beneficial interest in the fund as a MySuper product;

(ii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB is satisfied, in relation to the class of beneficial interest in the fund to which the application relates, at the time APRA gives authority;

(iii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB was satisfied in relation to each class of beneficial interest that the RSE licensee is already authorised to offer as a MySuper product, at the time APRA gave that earlier authority; and

(g) APRA is satisfied that section 29TC is satisfied in relation to that class of beneficial interest; and

(h)

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APRA has no reason to believe that:

(i) where the RSE licensee is a body corporate - the RSE licensee; or

(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;

may fail to comply with the enhanced trustee obligations for MySuper products; and

(i)

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where the RSE licensee is a body corporate - APRA has no reason to believe that the directors of the RSE licensee may fail to comply with the enhanced director obligations for MySuper products; and

(j)

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APRA has no reason to believe that:

(i) where the RSE licensee is a body corporate - the RSE licensee; or

(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;

may fail to comply with the general fees rules and the fees rules in relation to MySuper products; and

(k)

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APRA has no reason to believe that:

(i) where the RSE licensee is a body corporate - the RSE licensee; or

(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;

may contravene section 29W, 29WA or 29WB.

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29T(2)
Otherwise APRA must refuse to give the authority.

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SECTION 29TA

29TA PRODUCT IN ANOTHER FUND IN WHICH THERE IS ALREADY MATERIAL GOODWILL

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This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund (the proposed MySuper product ) if:

(a) the benefits of members and beneficiaries in another regulated superannuation fund (the original fund ) are to be transferred to the fund; and

(b) APRA is satisfied that:

(i) some or all of the persons whose benefits are to be transferred hold a class of interest in the original fund that is similar to the proposed MySuper product; and

(ii) there is material goodwill in that class of interest in the original fund; and

(iii) that goodwill could not be maintained unless the RSE licensee were authorised to offer the proposed MySuper product as an additional MySuper product in the fund; and

(iv) it would be in the best interests of the members of the fund, and those persons whose benefits are to be transferred to the fund, to maintain the distinction between the proposed MySuper product and other MySuper products within the fund.

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SECTION 29TB MYSUPER PRODUCTS FOR LARGE EMPLOYERS

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29TB(1)
This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if:

(a) under the governing rules of the fund, one employer is specified as a large employer in relation to the fund who is relevant to that class of beneficial interest; and

(b) either:

(i) that employer is a large employer in relation to the fund (see subsection (2)); or

(ii) APRA is satisfied that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, that employer will be a large employer in relation to the fund by the end of the period specified in the authority; and

(c) under the governing rules of the fund, a person is not entitled to hold an interest of that class in the fund unless the person is:

(i) an employee or a former employee of the large employer; or

(ii) an employee or a former employee of an associate of the large employer; or

(iii) a relative or dependant of an employee or a former employee mentioned in subparagraph (i) or (ii); and

(d) under the governing rules of the fund:

(i) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of the large employer, any employee of the large employer who is not a defined benefit member of the fund may hold an interest of that class in the fund; and

(ii) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of an associate of the large employer, any employee of that associate who is not a defined benefit member of the fund may hold an interest of that class in the fund.

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29TB(2)
An employer is a large employer in relation to a regulated superannuation fund if there are 500 or more members of the fund who are any of the following:

(a) a member of the fund:

(i) who is an employee of the employer; and

(ii) in relation to whom the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund;

(b) a member of the fund:

(i) who is an employee of an associate of the employer; and

(ii) in relation to whom either the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund.

29TB(3)

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In working out under subsection (2) whether an employer is a large employer , disregard defined benefit members of the fund.

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SECTION 29TC CHARACTERISTICS OF A MYSUPER PRODUCT

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29TC(1)
This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if, under the governing rules of the fund:

(a) a single diversified investment strategy is to be adopted in relation to assets of the fund, to the extent that they are attributed to that class of beneficial interest in the fund; and

(b) all members who hold a beneficial interest of that class in the fund are entitled to access the same options, benefits and facilities except to the extent that a benefit is provided by taking out risk insurance; and

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(c) amounts are attributed to members in relation to their beneficial interest of that class in the fund in a way that does not stream gains or losses that relate to any assets of the fund to only some of those members, except to the extent permitted under a lifecycle exception; and

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(d) the same process is to be adopted in attributing amounts to members in relation to their beneficial interest of that class in the fund, except to the extent that a different process is necessary to allow for fee subsidisation by employers or to comply with section 99G (fee cap on low balances); and

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(e) if fee subsidisation by employers is permitted, that subsidisation does not favour one member who holds a beneficial interest of that class in the fund and is an employee of a subsidising employer over another such member who is an employee of that employer; and

(f) the only limitations imposed on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of that class in the fund are those permitted under subsection (3); and

(g) a beneficial interest of that class in the fund cannot be replaced with a beneficial interest of another class in the fund, unless:

(i) the person who holds the interest consents in writing to that replacement no more than 30 days before it occurs; or

(ii) the person who holds the interest has died and the interest is replaced with a beneficial interest of another class in the fund of a kind, and in the circumstances, prescribed by the regulations; and

View history reference

(h) a beneficial interest of that class in the fund (the old interest ) cannot be replaced with a beneficial interest (the new interest ) in another superannuation entity unless:

[ CCH Note: There is no subparagraph 29TC(1)(h)(i).]

(ii) the replacement is permitted, or is required, under a law of the Commonwealth; or

(iii) the person who holds the old interest consents in writing to the replacement with the new interest no more than 30 days before it occurs; and

(i) to the extent that assets of the fund are attributed to beneficial interests of that class, a pension is not payable out of those assets by the trustee, or trustees, of the fund on the satisfaction of a condition of release of benefits specified in a standard made under paragraph 31(2)(h) by a person who holds a beneficial interest of that class, unless the payment is derived from a benefit of the kind mentioned in subparagraph 62(1)(b)(ii) provided to the fund by an insurer; and

Note:

Subparagraph 62(1)(b)(ii) is about benefits payable when a person ceases work due to ill-health.

(j) no member who holds a beneficial interest of that class in the fund is precluded from holding a beneficial interest of another class in the fund because of that fact; and

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(k) no member is precluded from holding a beneficial interest of that class in the fund because the member holds a beneficial interest of another class in the fund.

View history reference

View history note

29TC(2)
A lifecycle exception is a rule under the governing rules of the fund that allows gains and losses from different classes of asset of the fund to be streamed to different subclasses of the members of the fund who hold a MySuper product:

(a) on the basis, and only on the basis, of the age of those members; or

(b) on the basis of the age of those members and other prescribed factors; or

(c) on the basis of the age of those members and other prescribed factors in prescribed circumstances.

29TC(3)
A limitation on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of a particular class in a regulated superannuation fund is permitted for the purposes of paragraph (1)(f) if:

(a) the limitation is of a prescribed kind; or

(b) the limitation is imposed by or under the general law or another law of the Commonwealth.

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SECTION 29TD

29TD NOTICE OF AUTHORITY
If APRA authorises an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must notify the RSE licensee in writing of the authority.

View history note

SECTION 29TE

29TE APRA TO GIVE NOTICE OF REFUSAL OF AUTHORITY

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If APRA refuses an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice:

(a) informing it of APRA's refusal of the application; and

(b) setting out the reasons for the refusal;

as soon as practicable after refusing the application.

View history note

Division 4 - Cancelling authority

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View history note

SECTION 29U CANCELLING AUTHORITY TO OFFER MYSUPER PRODUCT

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29U(1)
APRA may, in writing, cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.

29U(2)
Without limiting subsection (1), APRA may cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if:

(a) APRA is no longer satisfied that section 29TC is satisfied in relation to that class of beneficial interest in the fund; or

(b)

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authority was given to offer that class of beneficial interest in the fund as a MySuper product because section 29TB was satisfied in relation to the class and either:

(i) in a case where that section was satisfied because APRA was satisfied that an employer would be a large employer by the end of a period specified in the authority - the employer was not a large employer at that time; or

(ii) in any case - that section was no longer satisfied in relation to the class on the last day of the immediately preceding year of income; or

(c)

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APRA has reason to believe that:

(i) where the RSE licensee is a body corporate - the RSE licensee; or

(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;

may not comply with the enhanced trustee obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or

(ca)

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where the RSE licensee is a body corporate - APRA has reason to believe that the directors of the RSE licensee may not comply with the enhanced director obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or

(d)

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APRA has reason to believe that:

(i) where the RSE licensee is a body corporate - the RSE licensee; or

(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;

may not comply with the general fees rules and the fees rules in relation to MySuper products (whether because of a previous failure to do so, or for any other reason); or

(e)

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APRA has reason to believe that:

(i) where the RSE licensee is a body corporate - the RSE licensee; or

(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;

may contravene section 29W, 29WA or 29WB (whether because of a previous contravention of that section, or for any other reason); or

(f) the fund ceases to be registered under Part 2B; or

(g)

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either:

(i) in a case where authority was given to offer the class of beneficial interest in the fund as a MySuper product on the basis that the fund would have 7 or more members within a period specified in the authority - the fund does not have 7 or more members at the end of that period; or

(ii) in any case - the fund has ceased to have 7 or more members; or

(h) paragraph 29T(1)(e) is no longer satisfied in relation to the fund (no longer an eligible rollover fund); or

(i) APRA is satisfied that:

(i) where the RSE licensee is a body corporate - the RSE licensee; or

(ii) where the RSE licensee is made up of a group of individual trustees - one of those individual trustees;

has contravened a provision of the governing rules of the fund relating to the MySuper product; or

(j)

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APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or

(k)

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APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAC (election not to pass costs of conflicted remuneration to MySuper members).

View history note

29U(3)
If APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product it must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee:

(a) that APRA has cancelled the authority; and

(b) of the reasons for the cancellation.

29U(4)

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If:

(a) APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and

(b) as a result of the cancellation, the fund no longer offers any MySuper product;

APRA must also notify the Fair Work Commission in writing of that fact.

View history note

SECTION 29UA CANCELLATION OF AUTHORITY OF AN RSE LICENSEE THAT IS ALSO A FINANCIAL SERVICES LICENSEE

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29UA(1)
Before cancelling an authority of an RSE licensee that is also a financial services licensee, APRA must consult ASIC if, in APRA's opinion, the cancellation might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides.

29UA(2)
If APRA cancels the authority of an RSE licensee that is also a financial services licensee, APRA must inform ASIC of the cancellation within one week after the cancellation.

29UA(3)
A failure to comply with a requirement of this section does not invalidate the cancellation of an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.

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SECTION 29UB

29UB APRA MAY ALLOW AUTHORITY TO CONTINUE IN EFFECT

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In a notice that APRA gives to an RSE licensee cancelling an authority, APRA may specify that the authority continues in effect as though the cancellation had not happened for the purposes of:

(a) a specified provision, administered by APRA, of this Act, the regulations or the prudential standards; or

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(b) a specified provision, administered by APRA, ofany other law of the Commonwealth;

in relation to specified matters, a specified period, or both.

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Division 5 - Fees rules for MySuper products

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View history note

SECTION 29V FEES THAT MAY BE CHARGED IN RELATION TO A MYSUPER PRODUCT

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29V(1)
The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge fees of one or more of the following kinds in relation to that product:

(a) an administration fee;

(b) an investment fee;

(c) a buy-sell spread;

(d) a switching fee;

(e) (Repealed by No 16 of 2019)

(f) an activity fee;

(g)

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an advice fee;

(h)

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an insurance fee.

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29V(2)

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An administration fee is a fee that relates to the administration or operation of a superannuation entity and includes costs incurred by the trustee, or the trustees, of the entity that:

(a) relate to the administration or operation of the fund; and

(b)

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are not otherwise charged as an investment fee, a buy-sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.

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29V(3)

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An investment fee is a fee that relates to the investment of the assets of a superannuation entity and includes:

(a) fees in payment for the exercise of care and expertise in the investment of those assets (including performance fees); and

(b)

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costs incurred by the trustee, or the trustees, of the entity that:

(i) relate to the investment of assets of the entity; and

(ii) are not otherwise charged as an administration fee, a buy-sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.

View history note

29V(4)

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A buy-sell spread is a fee to recover transaction costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the sale and purchase of assets of the entity.

View history note

29V(5)

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A switching fee is a fee to recover the costs of switching all or part of a member's interest in a superannuation entity from one class of beneficial interest in the entity to another.

View history note

29V(6)
(Repealed by No 16 of 2019)

View history note

29V(7)

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A fee is an activity fee if:

(a) the fee relates to costs incurred by the trustee, or the trustees, of a superannuation entity that are directly related to an activity of the trustee, or the trustees:

(i) that is engaged in at the request, or with the consent, of a member; or

(ii) that relates to a member and is required by law; and

(aa)

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the fee does not satisfy the condition in paragraph (8)(a); and

(b)

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those costs are not otherwise charged as an administration fee, an investment fee, a buy-sell spread, a switching fee or an insurance fee.

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29V(8)

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A fee is an advice fee if:

(a) the fee relates directly to costs incurred by the trustee, or the trustees, of a superannuation entity because of the provision of financial product advice to a member by:

(i) a trustee of the entity; or

(ii) another person acting as an employee of, or under an arrangement with, a trustee or trustees of the entity; and

(b)

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those costs are not otherwise charged as an administration fee, an investment fee, a switching fee or an insurance fee.

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29V(9)

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A fee is an insurance fee if:

(a) the fee relates directly to either or both of the following:

(i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member or members of the entity;

(ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member or members of the entity; and

(b) the fee does not relate to any part of a premium paid or cost incurred in relation to a life policy or a contract of insurance that relates to a benefit to the member that is based on the performance of an investment rather than the realisation of a risk; and

(c)

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the premiums and costs to which the fee relates are not otherwise charged as an administration fee, an investment fee, a switching fee, an activity fee or an advice fee.

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SECTION 29VA CHARGING RULES

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29VA(1)

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The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge a fee in relation to the MySuper product during a period if it satisfies one of the charging rules set out in this section in relation to that period.

View history note

All MySuper members charged same flat fee

29VA(2)
This rule is satisfied if:

(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and

(b) the amount of the fee is the same for each of those members.

All MySuper members charged same percentage of account balance

29VA(3)
This rule is satisfied if:

(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and

(b) the amount of the fee charged in relation to one member is a percentage of so much of the member's account balance with the fund that relates to the MySuper product; and

(c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the same percentage of so much of that member's account balance with the fund that relates to the MySuper product.

All MySuper members charged combination of same flat fee and same percentage of account balance

29VA(4)
This rule is satisfied if:

(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and

(b) the amount of the fee charged in relation to one member is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member's account balance with the fund that relates to the MySuper product; and

(c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the sum of the flat fee and the same percentage of so much of that member's account balance with the fund that relates to the MySuper product.

All MySuper members to whom action relates charged same flat fee

29VA(5)
This rule is satisfied if:

(a)

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the fee is a buy-sell spread, a switching fee or an activity fee; and

(b) the fee is only charged in relation to those members of the fund:

(i) who hold the MySuper product; and

(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and

(c) the amount of the fee charged is the same for each member to whom it is charged.

View history note

All MySuper members to whom action relates charged same percentage of account balance

29VA(6)
This rule is satisfied if:

(a)

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the fee is a buy-sell spread, a switching fee or an activity fee; and

(b) the fee is only charged in relation to those members of the fund:

(i) who hold the MySuper product; and

(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and

(c) the amount of the fee charged in relation to one of those members is a percentage of so much of the member's account balance with the fund:

(i) that relates to the MySuper product; and

(ii) in relation to which the relevant action is taken; and

(d) the amount of the fee charged in relation to each of the other of those members is the same percentage of so much of that member's account balance with the fund:

(i) that relates to the MySuper product; and

(ii) in relation to which the relevant action is taken.

View history note

All MySuper members to whom action relates charged combination of same flat fee and same percentage of account balance

29VA(7)
This rule is satisfied if:

(a)

View history reference

the fee is a buy-sell spread, a switching fee or an activity fee; and

(b) the fee is only charged in relation to those members of the fund:

(i) who hold the MySuper product; and

(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and

(c) the amount of the fee charged in relation to one of those members is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member's account balance with the fund:

(i) that relates to the MySuper product; and

(ii) in relation to which the relevant action is taken; and

(d) the amount of the fee charged in relation to each of the other of those members is the sum of the flat fee and the same percentage of so much of that member's account balance with the fund:

(i) that relates to the MySuper product; and

(ii) in relation to which the relevant action is taken.

View history note

Administration fee exemption for employees of an employer-sponsor

29VA(8)

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This rule is satisfied if:

(a) the fee is an administration fee charged in relation to one or more members of the fund who hold the MySuper product in accordance with the administration fee exemption for employees of an employee sponsor (see section 29VB); and

(b) in relation to those members of the fund who hold the MySuper product but in relation to whom the administration fee is not charged in accordance with the administration fee exemption for employees of an employee sponsor (the remaining members ) - the fee would satisfy the charging rule in subsection (2), (3) or (4) if the remaining members were the only members of the fund who held the MySuper product.

Note:

In some circumstances, the RSE licensee may wish to offer a MySuper product for the employees of a large employer or its associates (see sections 29T and 29TB). Any fee set for that MySuper product may differ from the equivalent fee set for another MySuper product within the fund. In other circumstances, a separate MySuper product may not be offered, but instead a lower administration fee charged to the employees of a particular employer sponsor (see section 29VB).

View history note

Lifecycle differentiated investment fees

29VA(9)

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This rule is satisfied if:

(a) the fee is an investment fee; and

(b)

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the fee would satisfy one of the charging rules in subsections (2) to (4) if the rule were applied to a subclass of the members of the fund who hold the MySuper product to whom gains and losses from different classes of asset of the fund may be streamed in accordance with a lifecycle exception, rather than in relation to all members of the fund who hold the MySuper product; and

(c) (Repealed No 141 of 2020)

(d)

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the investment fees for each such subclass reflect a fair and reasonable attribution of the investment costs of the fund between all such subclasses.

View history note

Advice fees

29VA(9A)

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This rule is satisfied if:

(a) the fee is an advice fee that relates directly to financial product advice provided to a member; and

(b) the member holds a MySuper product; and

(c) the fee is charged to the member; and

(d)

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the fee is to be paid in accordance with the terms of an arrangement entered into by the member; and

(e)

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the arrangement is not an ongoing fee arrangement.

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Insurance fees

29VA(10)

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This rule is satisfied if:

(a) the fee is an insurance fee that relates directly to either or both of the following:

(i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member;

(ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member; and

(b) the member holds a MySuper product; and

(c) the fee is charged to the member.

View history note

Fees for members with low balances

29VA(11)

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This rule is satisfied if:

(a) the fee is an administration fee or investment fee; and

(b) the fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more members of the fund who hold the MySuper product; and

(c) in relation to the remaining members of the fund who hold the MySuper product, the fee would satisfy a charging rule in another subsection of this section if those were the only members of the fund who held the MySuper product.

View history note

SECTION 29VB ADMINISTRATION FEE EXEMPTION FOR EMPLOYEES OF AN EMPLOYER-SPONSOR

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29VB(1)
An administration fee charged to members of a regulated superannuation fund who hold a MySuper product is charged in accordance with the administration fee exemption for employees of an employer-sponsor if:

(aa) although the trustee, or the trustees, of the fund are authorised to offer the MySuper product, it is not on the basis that section 29TB was satisfied in relation to that class of beneficial interest in the fund; and

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(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and

(b) an employer-sponsor contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for the benefit of those members of the fund (the employee members ) who hold the MySuper product and who are:

(i) employees of the employer-sponsor, or an associate of the employer-sponsor; or

(ii) the relatives or dependants of those employees; and

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(c) the trustee, or the trustees, of the fund have entered into an arrangement with the employer-sponsor that secures lower administration fees for the employee members; and

(d) the fee is in accordance with subsection (2), (3), (4) or (4A); and

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(e) the fee is in accordance with subsection (5).

View history reference

View history note

All employees charged same flat fee

29VB(2)
The amount of the administration fee is the same for each of the employee members.

All employees charged same percentage of account balance

29VB(3)
Each of the following is satisfied:

(a) the amount of the administration fee charged in relation to one of the employee members is a percentage of so much of the member's account balance with the fund that relates to the MySuper product;

(b) the amount of the administration fee charged in relation to each of the other employee members is the same percentage of so much of that member's account balance with the fund that relates to the MySuper product.

All employees charged combination of same flat fee and same percentage of account balance

29VB(4)
Each of the following is satisfied:

(a) the amount of the administration fee charged in relation to one of the employee members is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member's account balance with the fund that relates to the MySuper product;

(b) the amount of the administration fee charged in relation to each of the other employee members is the sum of the flat fee and the same percentage of so much of that member's account balance with that fund that relates to the MySuper product.

Reduced fees for employees with low balances

29VB(4A)

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Each of the following is satisfied:

(a) the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more employee members of the fund;

(b) in relation to the remaining employee members of the fund, the administration fee would be in accordance with subsection (2), (3) or (4) if those were the only employee members of the fund.

View history note

29VB(5)

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The total amount of the administration fee charged in relation to the employee members is at least equal to an amount that reasonably relates to costs that:

(a) are incurred by the trustee, or the trustees, of the fund in the administration and operation of the fund in relation to those members; and

(b) are not otherwise charged as an investment fee, a buy-sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.

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View history reference

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SECTION 29VC ACTIVITY FEES AND INSURANCE FEES TO BE CHARGED ON A COST RECOVERY BASIS

29VC(1)
If the trustee, or the trustees, of a regulated superannuation fund charge an activity fee or an insurance fee to a member in relation to a MySuper product, the fee must be no more than it would be if it were charged on a cost recovery basis.

29VC(2)
The regulations may prescribe the way in which an activity fee or an insurance fee charged on a cost recovery basis is to be worked out.

View history note

SECTION 29VD PERFORMANCE-BASED FEES

29VD(1)
This section applies if:

(a) a regulated superannuation fund offers a MySuper product; and

(b) the trustee, or the trustees, of the fund enter into an arrangement with an investment manager for the investment ofan asset or assets of the fund attributed, in whole or in part, to the MySuper product; and

(c) under the arrangement, a fee payable to the investment manager is determined, in whole or in part, by reference to the performance of the investments made by the investment manager on behalf of the trustee or trustees of the fund (a performance-based fee ).

29VD(2)
The trustee, or the trustees, of the regulated superannuation fund must ensure that the arrangement complies with this section.

Base fee must be set or adjusted to give incentive to obtain performance-based fee

29VD(3)
If, under the arrangement, a fee is or fees are payable to the investment manager in addition to the performance-based fee, the other fee or fees must be set or adjusted so that they are lower than they would be if the arrangement did not include the performance-based fee.

Period to which performance-based fee relates

29VD(4)
The period over which entitlement to the performance-based fee is determined under the arrangement must be appropriate to the kinds of investment to which the performance-based fee relates.

Performance of investment must be measured against an appropriate benchmark

29VD(5)
Under the arrangement, the performance of the investment must be measured by comparison with the performance of investments of a similar kind.

Performance-based fee to be worked out on after-costs, after-tax basis

29VD(6)
For the purposes of working out the performance-based fee payable under the arrangement, the performance of the investment must be determined on an after-costs and, where possible, an after-tax basis.

Disincentives to underperformance

29VD(7)
Under the arrangement, the performance-based fee must be calculated in a way that includes disincentives for poorly performing investments.

Best interests of MySuper members

29VD(8)
A trustee of a regulated superannuation fund does not breach this section to the extent that the asset or assets of the fund invested under the arrangement are attributed by the trustee or the trustees of the fund to a MySuper product if, despite the fact that the arrangement does not comply with one or more of the provisions of this section, the arrangement promotes the financial interests of the beneficiaries of the fund who hold the MySuper product.

View history note

SECTION 29VE

29VE PERCENTAGE-BASED ADMINISTRATION FEES MAY BE CAPPED

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If, under the governing rules of a regulated superannuation fund:

(a) all or part of the administration fee in relation to a MySuper product is charged to those members of the fund who hold the product as a percentage of so much of the account balance of each of those members that relates to the MySuper product; and

(b) the amount of the administration fee is capped at a specified amount; and

(c) either:

(i) the cap is the same for all of those members; or

(ii) if the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more of those members - the cap is the same for all of the remainder of those members; and

View history reference

(d) but for the fact that the administration fee is capped in that way, a charging rule in section 29VA would be satisfied in relation to the administration fee;

that charging rule is taken to be satisfied in relation to the administration fee.

View history note

(Repealed) Division 6 - Trustee obligations relating to MySuper

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29VN (Repealed) SECTION 29VN ADDITIONAL OBLIGATIONS OF A TRUSTEE IN RELATION TO A MYSUPER PRODUCT
(Repealed by No 40 of 2019)

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29VO (Repealed) SECTION 29VO ADDITIONAL OBLIGATIONS OF A DIRECTOR OF A CORPORATE TRUSTEE IN RELATION TO A MYSUPER PRODUCT
(Repealed by No 40 of 2019)

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29VP (Repealed) SECTION 29VP CONTRAVENTION OF SECTION 29VN
(Repealed by No 40 of 2019)

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29VPA (Repealed) SECTION 29VPA CONTRAVENTION OF SECTION 29VO
(Repealed by No 40 of 2019)

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29VQ (Repealed) SECTION 29VQ GOVERNING RULES VOID TO THE EXTENT THAT THEY ARE INCONSISTENT WITH OBLIGATIONS UNDER SECTION 29VN OR 29VO
(Repealed by No 40 of 2019)

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Division 7 - Offences

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SECTION 29W OFFERING A PRODUCT AS A MYSUPER PRODUCT WHEN NOT AUTHORISED TO DO SO

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29W(1)
A person commits an offence if:

(a) the person makes a representation; and

(b) the representation is that a class of beneficial interest in a regulated superannuation fund is a MySuper product; and

(c) the RSE licensee for the fund does not have authority to offer a beneficial interest of that class in the fund as a MySuper product.

Penalty: 60 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

29W(2)
Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

View history note

SECTION 29WA CONTRIBUTIONS IN RELATION TO WHICH NO ELECTION IS MADE ARE TO BE PAID INTO MYSUPER PRODUCT

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29WA(1)
This section applies if:

(a) a person is a member of a regulated superannuation fund (other than a defined benefit member); and

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(b) a contribution to the fund is made for the benefit of the person; and

(c) either:

(i) the person has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or

(ii) the person has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution.

View history reference

View history note

29WA(2)

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The trustee, or trustees, of the fund must treat any contribution to the fund in relation to which no direction has been given, and any part of a contribution to the fund in relation to which no direction has been given, as a contribution to be paid into a MySuper product of the fund.

View history note

29WA(3)
A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

Note 2:

For strict liability, see section 6.1 of the Criminal Code.

Directions

29WA(4)

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For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:

(a) the direction was not given in writing; or

(b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.

View history note

29WA(5)

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The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.

View history note

Exception - life policies, investment account contracts and cash investment options

29WA(6)

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If an asset (or assets) attributed to the person mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:

(a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;

(b) a life policy under which the benefit to the person (or a relative or dependant of the person) is based only on the realisation of a risk, not the performance of an investment;

(c) an investment account contract the only beneficiaries of which are the person, and relatives and dependants of the person;

(d) an investment option under which the investment is held as cash;

subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the person is invested in the life policy, under the investment account contract or in the cash investment option.

View history note

[ CCH Note: No 171 of 2012 (as amended by No 61 of 2013), s 3 and Sch 4 item 13 contains the following transitional provision:

13 Section 29WA of SIS Act not apply to contributions made under certain enterprise agreements

13(1)
This item applies if:

(a) an enterprise agreement is approved by the FWC before 1 January 2014; and

(b) at the time the agreement is approved by the FWC, the agreement includes a term that has the effect of requiring or permitting contributions, for the benefit of an employee (the relevant employee ) covered by the agreement who is a default fund employee, to be made to a superannuation fund or scheme that is specified in the agreement but does not satisfy one of the following:

(i) it is a fund that offers a MySuper product;

(ii) it is a fund or scheme of which the relevant employee, and each other default fund employee in relation to whom contributions are made to the fund or scheme by the same employer as the relevant employee, is a defined benefit member;

(iii) it is an exempt public sector superannuation scheme; and

(c) on or after 1 January 2014, one or more contributions (the relevant contributions ) are made to the fund or scheme under, or in accordance with, the agreement.
View history note

Hide history note

History

S 13(1) amended by No 61 of 2013, s 3 and Sch 1 item 119A, by substituting "the FWC" for "FWA" (wherever occurring), effective 1 January 2013.

13(2)
Section 29WA of the SIS Act does not apply to the relevant contributions.

13(3)
In this item:
default fund employee
has the same meaning as in the Fair Work Act 2009.

defined benefit member
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

enterprise agreement
has the same meaning as in the Fair Work Act 2009.

exempt public sector superannuation scheme
has the same meaning as in the SIS Act.

FWA
(Repealed by No 61 of 2013)
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Hide history note

History

Definition of "FWA" repealed by No 61 of 2013, s 3 and Sch 1 item 119B, effective 1 January 2013. The definition formerly read:

FWA
has the same meaning as in the Fair Work Act 2009.

FWC
has the same meaning as in the Fair Work Act 2009.
View history note

Hide history note

History

Definition of "FWC" inserted by No 61 of 2013, s 3 and Sch 1 item 119C, effective 1 January 2013.

MySuper product
has the same meaning as in the SIS Act.

SIS Act
means the Superannuation Industry (Supervision) Act 1993.

]

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SECTION 29WB CONTRIBUTIONS BY LARGE EMPLOYER IN RELATION TO WHICH NO ELECTION IS MADE TO BE PAID INTO LARGE EMPLOYER MYSUPER PRODUCT

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29WB(1)
This section applies if:

(a) the trustee, or the trustees, of a regulated superannuation fund are authorised to offer a class of beneficial interest in the fund as a MySuper product on the basis that section 29TB is satisfied in relation to that class of beneficial interest; and

(b) a member (other than a defined benefit member) is entitled to hold the MySuper product; and

(c) a contribution is made for the benefit of the member; and

(d) either:

(i) the member has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or

(ii) the member has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution.

29WB(2)
The trustee, or the trustees, of the fund must treat so much of the contribution in relation to which no direction is given as a contribution to be paid into the MySuper product.

29WB(3)
A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

Note 2:

For strict liability, see section 6.1 of the Criminal Code.

Directions

29WB(4)
For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:

(a) the direction was not given in writing; or

(b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.

29WB(5)
The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.

Exception - life policies, investment account contracts and cash investment options

29WB(6)
If an asset (or assets) attributed to the member mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:

(a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;

(b) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment;

(c) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member;

(d) an investment option under which the investment is held as cash;

subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the member is invested in the life policy, under the investment account contract or in the cash investment option.

View history note

Division 8 - Other matters

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SECTION 29X

29X PRUDENTIAL STANDARDS DEALING WITH ACCRUED DEFAULT AMOUNTS

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A prudential standard determined under section 34C may include provisions:

(a) requiring an RSE licensee of a regulated superannuation fund who holds an accrued default amount:

(i) for a member of the fund who is not eligible to hold a MySuper product offered by the fund; or

(ii) for a member of a regulated superannuation fund of the RSE licensee that does not offer a MySuper product;

to transfer that amount to another regulated superannuation fund that includes a MySuper product; and

(b) setting out the requirements that must be met in relation to the transfer of such an accrued default amount; and

(c) dealing with other matters relating to such an accrued default amount.

View history note

SECTION 29XA

29XA PRUDENTIAL STANDARDS DEALING WITH ASSETS ATTRIBUTED TO FORMER MYSUPER PRODUCTS

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A prudential standard determined under section 34C may include provisions:

(a) requiring an RSE licensee who is authorised to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product to transfer any asset or assets of the fund that are attributed to the MySuper product into another MySuper product within the fund, or a MySuper product within another fund, if the authority is cancelled under subsection 29U(1); and

(b) setting out the requirements that must be met in relation to the transfer of such an asset or assets; and

(c) dealing with other matters relating to such an asset or assets.

View history note

SECTION 29XB

29XB NO LIABILITY FOR CERTAIN TRANSFERS

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A trustee of a regulated superannuation fund is not subject to any liability to a member of the fund:

(a) for an action taken to give effect to an election made in accordance with section 29SAA or 29SAB; or

(b) for an action of the kind mentioned in subsection 55C(1).

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SECTION 29XC

29XC PUBLIC SECTOR SUPERANNUATION SCHEME CEASES TO BE EXEMPT

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If APRA becomes aware that:

(a) a public sector superannuation scheme has ceased to be an exempt public sector superannuation scheme; and

(b) the scheme is not a regulated superannuation fund that offers a MySuper product;

APRA must notify the Fair Work Commission of that fact.

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PART 3 - OPERATING STANDARDS

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View history note

Division 1 - Object of Part

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SECTION 30

30 OBJECT OF PART

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The object of this Part is to provide for a system of prescribed standards applicable to:

(a) the operation of regulated superannuation funds, approved deposit funds and pooled superannuation trusts; and

(b) the trustees and RSE licensees of those funds and trusts.

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Division 2 - Operating standards

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SECTION 31 OPERATING STANDARDS FOR REGULATED SUPERANNUATION FUNDS

31(1)

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The regulations may prescribe standards applicable to the operation of regulated superannuation funds ( funds ) and to trustees and RSE licensees of those funds.

View history note

31(2)
The standards that may be prescribed include, but are not limited to, standards relating to the following matters:

(a) the persons who may contribute to funds;

(b) the vesting in beneficiaries in funds of benefits arising directly or indirectly from amounts contributed to the funds;

(c) the amount of contributions that a fund may accept;

(d) the circumstances in which a fund may accept contributions;

(da) the charging of fees (including the calculation of the amount of fees) to:

(i) members of a fund; and

(ii) members who hold a particular class of beneficial interest in a fund;

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(db) the attribution of costs between classes of beneficial interest in a fund;

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(dc) the calculation of a member's account balance with the fund on a particular day, or a member's account balance with the fund on a particular day that relates to a choice product or MySuper product;

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(e) the form in which benefits may be provided by funds;

(ea) the kinds of benefits that must not be provided by taking out insurance, or insurance of a particular kind;

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(eb) the kinds of benefits that must not be provided other than by taking out insurance, or insurance of a particular kind;

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(f) the actuarial standards that will apply to funds;

(g) the preservation of benefits arising directly or indirectly from amounts contributed to funds;

(h) the payment by funds of benefits arising directly or indirectly from amounts contributed to the funds;

(i) the portability of benefits arising directly or indirectly from amounts contributed to funds;

(j) the levels of benefits that may be provided by funds and the levels of assets that may be held by funds;

(k) the application by funds of money no longer required to meet payments of benefits to beneficiaries because the beneficiaries have ceased to be entitled to receive those benefits;

(l) the investment of assets of funds and the management of the investment;

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(m) the number of trustees, and the composition of boards or committees of trustees, of funds;

(ma) the requirements relating to fitness and propriety for RSE licensees of funds and trustees of funds;

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(n) the keeping and retention of records in relation to funds;

(o) the financial and actuarial reports to be prepared in relation to funds;

(p) the disclosure of information to beneficiaries in funds;

(pa) the disclosure of information by a trustee of a fund who is a member of a group of individual trustees to the other trustees in that group;

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(q) the disclosure of information about funds to the Regulator;

(r) the disclosure of information about funds to persons other than beneficiaries or the Regulator;

(s) the financial position of funds;

(sa) the outsourcing arrangements relating to the operation of funds;

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(sb) the adequacy of resources (including human resources, technical resources, and financial resources) of, or available to, trustees of funds;

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(t) the funding and solvency of funds;

(u) the winding-up of funds.

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SECTION 32 OPERATING STANDARDS FOR APPROVED DEPOSIT FUNDS

32(1) [Standards prescribed in regulations]

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The regulations may prescribe standards applicable to the operation of approved deposit funds ( funds ) and to trustees and RSE licensees of those funds.

View history note

32(2) [Scope of standards]

The standards that may be prescribed include, but are not limited to, standards relating to the following matters:

(a) the kinds of amounts that may be deposited with funds;

(aa) the circumstances in which amounts may be deposited with funds;

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(b) the preservation of amounts deposited with funds, and of earnings on such amounts;

(c) the payment out of funds of amounts deposited with the funds, and of earnings on such amounts;

(d) the portability of amounts deposited with funds, and of earnings on such amounts;

(e) the form in which benefits may be paid out of funds;

(f) the investment of assets of funds and the management of the investment;

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(fa) the requirements relating to fitness and propriety for RSE licensees of funds and trustees of funds;

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(g) the keeping and retention of records in relation to funds;

(h) the financial and actuarial reports to be prepared in relation to funds;

(i) the disclosure of information to beneficiaries in funds;

(j) the disclosure of information about funds to the Regulator;

(k) the disclosure of information about funds to persons other than beneficiaries or the Regulator;

(l) the financial position of funds;

(la) the outsourcing arrangements relating to the operation of funds;

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(lb) the adequacy of resources (including human resources, technical resources and financial resources) of, or available to, trustees of funds;

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(m) the funding and solvency of funds;

(n) the winding-up of funds.

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SECTION 33 OPERATING STANDARDS FOR POOLED SUPERANNUATION TRUSTS

33(1) [Standards prescribed in regulations]

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The regulations may prescribe standards applicable to the operation of pooled superannuation trusts ( trusts ) and to trustees and RSE licensees of those trusts.

View history note

33(2) [Scope of standards]

The standards that may be prescribed include, but are not limited to, standards relating to the following matters:

(aa) the circumstances in which units in trusts may be acquired;

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(a) the ownership and disposal of units in trusts;

(b) the investment of assets of trusts and the management of the investment;

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(ba) the requirements relating to fitness and propriety for RSE licensees of trusts and trustees of trusts;

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(c) the persons who may be trustees of trusts;

(d) the number of trustees, and the composition of boards or committees of trustees, of trusts;

(e) the keeping and retention of records in relation to trusts;

(f) the financial and actuarial reports to be prepared in relation to trusts;

(g) the disclosure of information to unit-holders in trusts;

(h) the disclosure of information about trusts to the Regulator;

(i) the disclosure of information about trusts to persons other than unit-holders or the Regulator;

(j) the financial position of trusts;

(ja) the outsourcing arrangements relating to the operation of trusts;

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(jb) the adequacy of resources (including human resources, technical resources and financial resources) of, or available to, trustees of trusts;

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(k) the funding and solvency of trusts.

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SECTION 33A RELATIONSHIP BETWEEN OPERATING STANDARDS, THIS ACT AND THE REGULATIONS

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33A(1)
A standard applicable to the operation of a superannuation entity may be prescribed that elaborates, supplements or otherwise deals with any aspect of:

(a) a matter relating to the operation of the entity to which a covenant referred to in sections 52 to 53 or prescribed under section 54A relates; or

(b) a matter relating to the operation of the entity to which a provision of this Act or another provision of the regulations relates.

33A(2)
However, a standard applicable to the operation of a superannuation entity is of no effect to the extent that it conflicts with this Act.

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SECTION 34 PRESCRIBED OPERATING STANDARDS MUST BE COMPLIED WITH
Standards must be complied with

34(1)

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Each trustee of a superannuation entity must ensure that the prescribed standards applicable to the operation of the entity are complied with at all times.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

View history note

Offence

34(2)

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A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

Standards relating to record keeping obligations

34(2A)

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If standards are prescribed by the regulations for the purposes of paragraph 31(2)(n), 32(2)(g) or 33(2)(e), each trustee of a superannuation entity must ensure that those standards are, when applied to the operation of the entity, complied with at all times.

Penalty: 50 penalty units.

View history note

34(2B)

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Subsection (2A) is an offence of strict liability.

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Validity of transaction not affected by contravention

34(3)

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A contravention of subsection (1) or (2A) does not affect the validity of a transaction.

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Division 3 - Portability forms

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View history note

SECTION 34A PORTABILITY FORMS

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34A(1)
For the purposes of standards made under Division 2, and without limiting that Division, the regulations may prescribe a scheme under which:

(a) a beneficiary of:

(i) a regulated superannuation fund; or

(ii) an approved deposit fund;

gives to the Commissioner of Taxation a request for the benefits held for the beneficiary in the fund to be rolled-over or transferred; and

(b) the Commissioner may pass the request on to the trustee of the fund.

Note:

The standards may require the trustee to act on the request. See paragraphs 31(2)(i) and 32(2)(d).

34A(2)
The regulations may provide that the request must be given to the Commissioner in the approved form.

Note:

The approved form may require the beneficiary to set out his or her tax file number. See subsection 299U(2A).

View history note

PART 3A - PRUDENTIAL STANDARDS

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View history note

SECTION 34B

34B OBJECT OF THIS PART

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The object of this Part is to provide for a system of standards in relation to prudential matters concerning registrable superannuation entities.

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SECTION 34C APRA MAY DETERMINE PRUDENTIAL STANDARDS

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34C(1)
APRA may determine (in writing) standards ( prudential standards ) relating to prudential matters that must be complied with by:

(a) all RSE licensees of registrable superannuation entities; or

(b) the connected entities of all RSE licensees of registrable superannuation entities; or

(c) a specified class of RSE licensees of registrable superannuation entities; or

(d) a specified class of connected entities of RSE licensees of registrable superannuation entities; or

(e) one or more specified RSE licensees of registrable superannuation entities; or

(f) one or more specified connected entities of RSE licensees of registrable superannuation entities.

34C(2)
A prudential standard may impose different requirements to be complied with:

(a) by different classes of RSE licensees of registrable superannuation entities or connected entities of RSE licensees of registrable superannuation entities; or

(b) in different situations; or

(c) in respect of different activities.

34C(3)
Without limiting the prudential matters in relation to which APRA may determine a prudential standard, a prudential standard may require the following entities to ensure that the entity's connected entities (or particular connected entities), or the entity and the entity's connected entities (or particular connected entities), collectively satisfy particular requirements:

(a) each RSE licensee of a registrable superannuation entity;

(b) each RSE licensee of a registrable superannuation entity included in a specified class of RSE licensees;

(c) a specified RSE licensee of a registrable superannuation entity;

(d) each of 2 or more RSE licensees of registrable superannuation entities.

34C(4)
A prudential matter is a matter relating to:

(a) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the registrable superannuation entity, or the affairs of a connected entity of the RSE licensee, in such a way as to:

(i) protect the interests of the beneficiaries of the registrable superannuation entity; or

(ii) meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or

(b) the conduct by a connected entity of an RSE licensee of a registrable superannuation entity of the affairs of the connected entity in such a way as to:

(i) protect the interests of the beneficiaries of the registrable superannuation entity; or

(ii) meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or

(c) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the licensee in such a way as:

(i) to keep itself in a sound financial position; or

(ii) not to cause or promote instability in the Australian financial system; or

(d) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the registrable superannuation entity in such a way as not to cause or promote instability in the Australian financial system; or

(e) the conduct by a connected entity of an RSE licensee of a registrable superannuation entity of the affairs of the connected entity in such a way as:

(i) to keep itself in a sound financial position; or

(ii) not to cause or promote instability in the Australian financial system; or

(ea)

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the conduct by an RSE licensee of a registrable superannuation entity, or by a connected entity of such an RSE licensee, of the affairs of the licensee, the registrable superannuation entity, or any connected entity of the licensee, in such a way as to:

(i) facilitate resolution of the RSE licensee; or

(ii) facilitate resolution of the registrable superannuation entity; or

(iii) facilitate resolution of the connected entity that is reasonably necessary to facilitate resolution of the RSE licensee; or

(iv) facilitate resolution of the connected entity that is reasonably necessary to facilitate resolution of the registrable superannuation entity; or

(v) facilitate resolution of the connected entity that is reasonably necessary to protect the interests of the beneficiaries of the registrable superannuation entity; or

(vi) facilitate resolution of the connected entity that is reasonably necessary to meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or

(f) the conduct by an RSE licensee of a registrable superannuation entity, or a connected entity of the RSE licensee, of any of its affairs that are relevant to the registrable superannuation entity with integrity, prudence and professional skill; or

(g) the appointment of auditors and actuaries; or

(h) the conduct of audits and actuarial investigations.

View history note

34C(5)
The prudential standards may provide for APRA to exercise powers and discretions under the standards, including but not limited to discretions to approve, impose, adjust or exclude specific prudential requirements in relation to the following:

(a) a particular RSE licensee of a registrable superannuation entity;

(b) a particular connected entity of an RSE licensee of a registrable superannuation entity;

(c) specified RSE licensees of registrable superannuation entities;

(d) specified connected entities of RSE licensees of registrable superannuation entities.

34C(6)
APRA may, in writing, vary or revoke a standard.

34C(7)
A standard referred to in paragraph (1)(e) or (f), or a variation of a standard referred to in those paragraphs, comes into force on the later of:

(a) the day on which APRA satisfies subsection 34E(1) in relation to the standard or variation (obligation to give a copy to each RSE licensee and connected entity to which it applies); and

(b) if APRA includes with the copy of the standard or variation a notice that the standard or variation will come into force on a later day - that later day.

34C(8)
The revocation of a standard referred to in paragraph (1)(e) or (f) comes into force on the later of:

(a) the day on which APRA satisfies subsection 34E(2) in relation to the revocation (obligation to give notice of the revocation to each RSE licensee or connected entity to which the standard relates); and

(b) the day specified in that notice as the day on which the revocation comes into force.

34C(9)
The following instruments made under this section are not legislative instruments:

(a) a standard referred to in paragraph (1)(e) or (f);

(b) an instrument varying or revoking a standard referred to in paragraph (1)(e) or (f).

34C(10)
Otherwise, an instrument made under this section is a legislative instrument.

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SECTION 34D RELATIONSHIP BETWEEN PRUDENTIAL STANDARDS, THIS ACT AND THE REGULATIONS

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34D(1)
A prudential standard may be determined that elaborates, supplements or otherwise deals with any aspect of:

(a) a prudential matter to which a covenant referred to in sections 52 to 53 or prescribed under section 54A relates; or

(b) a prudential matter to which a provision of this Act or the regulations relates.

34D(2)
However, a prudential standard is of no effect to the extent that it conflicts with this Act or the regulations.

View history note

SECTION 34E NOTICE OF DETERMINATION, VARIATION OR REVOCATION OF CERTAIN PRUDENTIAL STANDARDS

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34E(1)
If APRA determines or varies a prudential standard referred to in paragraph 34C(1)(e) or (f), APRA must give a copy of the standard or of the variation to each RSE licensee and connected entity to which the standard applies.

34E(2)
If APRA revokes a prudential standard referred to in paragraph 34C(1)(e) or (f), APRA must give notice of the revocation to each RSE licensee and connected entity to which the standard applies.

View history note

SECTION 34F

34F APRA TO MONITOR PRUDENTIAL MATTERS

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The functions of APRA include:

(a) collecting and analysing information on prudential matters concerning RSE licensees of registrable superannuation entities and connected entities of RSE licensees of registrable superannuation entities; and

(b) encouraging and promoting the carrying out of sound practices in relation to prudential matters by RSE licensees of registrable superannuation entities and connected entities of RSE licensees of registrable superannuation entities; and

(c) evaluating the effectiveness and carrying out of those practices.

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PART 3B - SUPERANNUATION DATA AND PAYMENT REGULATIONS AND STANDARDS

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Division 1 - Superannuation data and payment regulations and standards

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SECTION 34H OBJECT OF PART

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34H(1)

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The object of this Part is to further the interests of beneficiaries of eligible superannuation entities by improving the productivity of the superannuation system.

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34H(2)

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The Part does this by providing for a system of standards relating to payments and information connected with the operation of eligible superannuation entities.

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SECTION 34J

34J ALTERNATIVE CONSTITUTIONAL BASIS

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Without limiting its effect apart from this section, this Part also has the effect it would have if each reference to an employer were, by express provision, confined to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.

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SECTION 34K SUPERANNUATION DATA AND PAYMENT REGULATIONS AND STANDARDS

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34K(1)
The regulations may make provision for and in relation to superannuation data and payment matters, to be complied with by:

(a) trustees of eligible superannuation entities; and

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(b) employers in their dealings with eligible superannuation entities.

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34K(2)
The regulations may prescribe different requirements for different classes of eligible superannuation entity or employer.

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34K(3)
The Commissioner of Taxation may, by legislative instrument, determine standards ( superannuation data and payment standards ) relating to superannuation data and payment matters, applicable to:

(a) trustees of eligible superannuation entities; and

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(b) employers in their dealings with eligible superannuation entities.

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Note:

For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

[ CCH Note: Superannuationdata and payment standards have been determined - see Superannuation Data and Payment Standards 2012 (F2013L00041), as amended by Superannuation Data and Payment Standards (Contribution Transitional Arrangements) Amendment 2014 (F2014L00608)]

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34K(4)

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The superannuation data and payment standards may specify different requirements for different classes of eligible superannuation entity or employer.

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34K(5)
A superannuation data and payment matter is a matter relating to the manner in which payments and information of a kind mentioned in subsection (6):

(a) relating to:

(i) a member of an eligible superannuation entity; or

(ii) an employee for whose benefit a contribution to an eligible superannuation entity is to be made by an employer; and

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(b) connected with the operation of the eligible superannuation entity;

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are dealt with.

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34K(6)
The kinds of payments and information are:

(a) transactions, including payments, contributions, roll-over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997), allocations, transfers and refunds; and

(b) reports; and

(c) records, including registrations; and

(d) unique identifiers for use with such transactions, reports and records; and

(e) any other kind of payment or information that is prescribed by the regulations for the purposes of this paragraph; and

(f) to avoid doubt, any payment or information of a kind mentioned in paragraphs (a) to (e) and made or provided by the Commissioner of Taxation.

Adoption of other instruments

34K(7)
The regulations or standards may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

34K(8)

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Subsection (7) has effect despite anything in subsection 14(2) of the Legislation Act 2003.

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Consultations in preparing superannuation data and payment standards

34K(9)
The Commissioner of Taxation must consult with APRA in preparing the superannuation data and payment standards.

Note:

For further consultation requirements, see section 17 of the Legislation Act 2003.

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34K(10)
A failure to comply with subsection (9) does not affect the validity or enforceability of the superannuation data and payment standards.

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SECTION 34L RELATIONSHIP BETWEEN STANDARDS AND OTHER LAW

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34L(1)
A superannuation data and payment standard may elaborate on or supplement any aspect of regulations made under this Part.

34L(2)
However, a superannuation data and payment standard is of no effect to the extent that it conflicts with this Act or the regulations.

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Division 2 - Compliance with superannuation data and payment regulations and standards

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SECTION 34M COMPLIANCE REQUIREMENT - TRUSTEES OF ELIGIBLE SUPERANNUATION ENTITIES

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34M(1)

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Each trustee of an eligible superannuation entity must ensure that payments and information relating to a member of the eligible superannuation entity, or a person for whose benefit a contribution to the eligible superannuation entity is to be made, are dealt with in a manner that complies with any applicable:

(a) regulations made under this Part; and

(b) superannuation data and payment standards.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

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Strict liability offence

34M(2)
A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 20 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

34M(3)
A contravention of subsection (1) does not affect the validity of a transaction.

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SECTION 34N COMPLIANCE REQUIREMENT - EMPLOYERS

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34N(1)

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An employer must deal with payments and information relating to an employee, for whose benefit a contribution to an eligible superannuation entity is to be made, in a manner that complies with any applicable:

(a) regulations made under this Part; and

(b) superannuation data and payment standards.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

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Strict liability offence

34N(2)
A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 20 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

34N(3)
A contravention of subsection (1) does not affect the validity of a transaction.

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SECTION 34P REGULATOR'S POWER TO GIVE DIRECTIONS IN CERTAIN CIRCUMSTANCES - TRUSTEES OF ELIGIBLE SUPERANNUATION ENTITIES

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34P(1)

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The Regulator may give a trustee of an eligible superannuation entity a direction of a kind specified in subsection (4) if the Regulator reasonably believes that a trustee of the eligible superannuation entity has contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular superannuation data and payment standard.

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34P(2)
In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:

(a) the extent (if any) to which the eligible superannuation entity is operating in a way that is contrary to the object of this Part;

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(b) any other matter that the Regulator considers relevant.

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34P(3)

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The direction must be given by notice in writing to the trustee of the eligible superannuation entity.

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34P(4)

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The kinds of direction that a trustee of an eligible superannuation entity may be given are directions to do any one or more of the following by a specified time:

(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);

(b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection).

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34P(5)
The time specified in the direction must be 21 days or more after the day the direction is given.

34P(6)

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The trustee of the eligible superannuation entity must ensure the direction is complied with by the specified time.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

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Strict liability offence

34P(7)
A person commits an offence of strict liability if the person contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

34P(8)

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The Regulator may, by notice in writing to the trustee of the eligible superannuation entity, vary the direction or the time specified if, at the time of the variation, the Regulator considers that the variation is necessary and appropriate.

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34P(9)

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The direction has effect until the Regulator revokes it by notice in writing to the trustee of the eligible superannuation entity. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

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SECTION 34Q REGULATOR'S POWER TO GIVE DIRECTIONS IN CERTAIN CIRCUMSTANCES - EMPLOYERS

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34Q(1)
The Regulator may give an employer a direction of a kind specified in subsection (4) if the Regulator reasonably believes that the employer has contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular superannuation data and payment standard.

34Q(2)
In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:

(a) the extent (if any) to which the employer is operating in a way that is contrary to the object of this Part;

(b) any other matter that the Regulator considers relevant.

34Q(3)
The direction must be given by notice in writing to the employer.

34Q(4)
The kinds of direction that the employer may be given are directions to do any one or more of the following by a specified time:

(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);

34Q(5)
The time specified in the direction must be 21 days or more after the day the direction is given.

34Q(6)
The employer must comply with the direction by the specified time.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

34Q(7)
A person commits an offence of strict liability if the person contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

34Q(8)
The Regulator may, by notice in writing to the employer, vary the direction or the time specified if, at the time of the variation, it considers that the variation is necessary and appropriate.

34Q(9)
The direction has effect until the Regulator revokes it by notice in writing to the employer. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

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Division 3 - Infringement notices

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SECTION 34R WHEN AN INFRINGEMENT NOTICE MAY BE GIVEN

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34R(1)
If the Regulator has reasonable grounds to believe that a person has contravened an offence of strict liability in Division 2, the Regulator may give to the person an infringement notice for the alleged contravention.

34R(2)
The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

34R(3)
A single infringement notice may be given to a person in respect of:

(a) 2 or more alleged contraventions of an offence of strict liability in Division 2; and

(b) alleged contraventions of 2 or more offences of strict liability in Division 2.

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SECTION 34S MATTERS TO BE INCLUDED IN NOTICE

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34S(1)
An infringement notice must:

(a) state the day on which it is given; and

(b) state the name of the person to whom it is given; and

(c) state the name of the person who gave the notice; and

(d) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose for the contravention; and

(iii) the time (if known) and day of, and the place of, the alleged contravention; and

(e) state the amount that is payable under the notice; and

(f) give an explanation of how payment of the amount is to be made; and

(g) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) the person is not liable to be prosecuted in a court in relation to the alleged contravention; and

(h) state that payment of the amount is not an admission of guilt or liability; and

(i) state that the person may apply to the Regulator to have the period in which to pay the amount extended; and

(j) state that the person may choose not to pay the amount and, if the person does so, the person may be prosecuted in a court in relation to the alleged contravention; and

(k) set out how the notice can be withdrawn; and

(l) state that if the notice is withdrawn:

(i) any amount paid under the notice must be refunded; and

(ii) the person may be prosecuted in a court for the alleged contravention; and

(m) state that the person may make written representations to the Regulator seeking the withdrawal of the notice.

34S(2)
For the purposes of paragraph (1)(e), the amount to be stated in the notice for the alleged contravention of the provision must be equal to one-fifth of the maximum penalty that a court could impose on the person for that contravention.

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SECTION 34T EXTENSION OF TIME TO PAY AMOUNT

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34T(1)
A person to whom an infringement notice has been given may apply to the Regulator for an extension of the period referred to in paragraph 34S(1)(g).

34T(2)
If the application is made before the end of that period, the Regulator may, in writing, extend that period. The Regulator may do so before or after the end of that period.

34T(3)
If the Regulator extends that period, a reference in this Division, or in a notice or other instrument under thisDivision, to the period referred to in paragraph 34S(1)(g) is taken to be a reference to that period as so extended.

34T(4)
If the Regulator does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 34S(1)(g) is taken to be a reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in paragraph 34S(1)(g);

(b) the day that is 7 days after the day the person was given notice of the Regulator's decision not to extend.

34T(5)
The Regulator may extend the period more than once under subsection (2).

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SECTION 34U WITHDRAWAL OF AN INFRINGEMENT NOTICE

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Representations seeking withdrawal of notice

34U(1)
A person to whom an infringement notice has been given may, within 21 days after the day the notice is given, make written representations to the Regulator seeking the withdrawal of the notice.

Withdrawal of notice

34U(2)
The Regulator may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).

34U(3)
When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the Regulator:

(a) must take into account any written representations seeking the withdrawal that were given by the person to the Regulator; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the person for a contravention of an offence of strict liability in Division 2;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of an offence of strict liability in Division 2 if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;

(iv) any other matter the Regulator considers relevant.

Notice of withdrawal

34U(4)
Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:

(a) the person's name and address; and

(b) the day the infringement notice was given; and

(c) that the infringement notice is withdrawn; and

(d) that the person may be prosecuted in a court in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

34U(5)
If:

(a) the Regulator withdraws the infringement notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to the amount paid.

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SECTION 34V EFFECT OF PAYMENT OF AMOUNT

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34V(1)
If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 34S(1)(g):

(a) any liability of the person for the alleged contravention is discharged; and

(b) the person may not be prosecuted in a court for the alleged contravention; and

(c) the person is not regarded as having been convicted of the alleged offence; and

(d) the person is not regarded as having admitted guilt or liability for the alleged contravention.

34V(2)
Subsection (1) does not apply if the notice has been withdrawn.

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SECTION 34W

34W EFFECT OF THIS DIVISION

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This Division does not:

(a) require an infringement notice to be given to a person for an alleged contravention of an offence of strict liability in Division 2; or

(b) affect the liability of a person for an alleged contravention of an offence of strict liability in Division 2 if:

(i) the person does not comply with an infringement notice given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the contravention; or

(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or

(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of an offence of strict liability in Division 2; or

(d) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened an offence of strict liability in Division 2.

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Division 4 - Information

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Subdivision A - Correction and rectification of information

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SECTION 34X CORRECTION AND RECTIFICATION OF INFORMATION

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34X(1)
The Commissioner of Taxation may alter information in his or her possession for the purposes of ensuring the information complies with:

(a) any applicable regulations made under this Part; and

(b) any applicable superannuation data and payment standards.

34X(2)
An alteration made by the Commissioner of Taxation under subsection (1) does not have the effect of discharging any liability of a person for a contravention of a provision of this Part relating to the information.

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Subdivision B - Register of information about certain funds and schemes

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SECTION 34Y REGISTER OF INFORMATION ABOUT CERTAIN FUNDS AND SCHEMES

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34Y(1)
The Commissioner of Taxation must keep a register of information for the purposes of this Part.

34Y(2)
The Commissioner of Taxation is to keep the register by electronic means.

34Y(3)
The register is not a legislative instrument.

34Y(4)
The Commissioner of Taxation may cause the contents of all or part of the register to be made available to:

(a) entities that must comply with the superannuation data and payment regulations and standards; and

(b) entities that must comply with the data and payment regulations and standards relating to RSAs; and

(c) exempt public sector superannuation schemes.

Contents of the register

34Y(5)
The register must contain the information given to the Commissioner of Taxation in accordance with section 34Z.

34Y(6)
The trustee of an exempt public sector superannuation scheme may give the Commissioner of Taxation information that both:

(a) relates to the scheme; and

(b) is of the kind given to the Commissioner of Taxation in accordance with section 34Z.

The Commissioner of Taxation may include that information on the register.

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SECTION 34Z TRUSTEES TO PROVIDE INFORMATION FOR INCLUSION IN REGISTER

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34Z(1)
The following matters may be prescribed by regulation:

(a) information that is required to be given to the Commissioner of Taxation in accordance with this section in relation to prescribed eligible superannuation entities;

(b) the manner and form (including electronic form) in which the prescribed information is to be provided;

(c) the time at which, or period within which, the prescribed information is to be provided.

34Z(2)
Each trustee of a prescribed eligible superannuation entity must ensure that the prescribed information in relation to the entity is given to the Commissioner of Taxation in accordance with the regulation.

Contravening requirement to give information

34Z(3)
A person commits an offence of strict liability if the person contravenes subsection (2).

Penalty: 25 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

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PART 4 - ACCOUNTS, AUDIT AND REPORTING OBLIGATIONS FOR SUPERANNUATION ENTITIES

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Division 1 - Objects

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SECTION 35

35 OBJECTS OF PART

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The objects of this Part are:

(a) to set out rules about the accounts, statements and audits of superannuation entities; and

(b) to require certain reports and returns relating to superannuation entities to be given to the Regulator.

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Division 2 - Obligations for registrable superannuation entities

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SECTION 35A ACCOUNTING RECORDS

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Accounting records must be kept etc.

35A(1)
Each trustee of a registrable superannuation entity must ensure that:

(a) accounting records that correctly record and explain the transactions and financial position of the RSE licensee for the entity and the entity are kept; and

(b)

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the accounting records of the RSE licensee and the entity are kept in a way that enables:

(i) the preparation of reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001; and

(ii) the preparation of any other documents required to be audited under the RSE licensee law or Chapter 2M of the Corporations Act 2001; and

(c)

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the accounting records of the RSE licensee and the entity are kept in a way that enables those reporting documents and other documents to be conveniently and properly audited in accordance with the RSE licensee law and Chapter 2M of the Corporations Act 2001 (if applicable).

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35A(1A)

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If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1), each trustee of the entity must ensure that the records are retained for at least 7 years after the end of the year of income to which the transactions relate.

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35A(2)
If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1), each trustee of the entity must ensure that:

(a) (Repealed by No 29 of 2023)

(b)

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the records are kept either:

(i) in Australia; or

(ii) in another country if the Regulator gives written approval for the records to be kept in that country, and the conditions (if any) specified in the approval are met; and

(c) the records are kept:

(i) in writing in the English language; or

(ii) in a form in which they are readily accessible and readily convertible into writing in the English language.

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35A(3)
An approval given under subparagraph (2)(b)(ii) may be given subject to specified conditions.

Notification of address where accounting records are kept

35A(4)
A trustee of a registrable superannuation entity must notify APRA, in the approved form, of the address where the accounting records of the RSE licensee and the entity are kept:

(a) if, immediately before the commencement of this subsection, APRA has not already been notified of the current address where the accounting records of the RSE licensee or the entity are kept - within 28 days after that commencement; or

(b) otherwise - within 28 days after the entity is registered under section 29M.

35A(5)
If:

(a) a trustee of a registrable superannuation entity has notified APRA of the address where the accounting records of the RSE licensee and the entity are kept; and

(b) the entity moves the accounting records to a new address;

a trustee of the entity must notify APRA, in the approved form and within 28 days after the day on which the accounting records are moved to the new address, of the new address where the accounting records are kept.

Offences

35A(6)

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A trustee commits an offence if the trustee contravenes subsection (1) or (1A).

Penalty: Imprisonment for 2 years.

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35A(7)

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A trustee commits an offence of strict liability if the trustee contravenes subsection (1), (1A), (2), (4) or (5).

Penalty: 60 penalty units.

Note:

For strict liability, see section 6.1 of the Criminal Code.

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SECTION 35AB AUDITOR REQUESTS FOR DOCUMENTS

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35AB(1)
If the auditor of a registrable superannuation entity requests, in writing, a trustee of the entity to give the auditor a document, each trustee of the entity must ensure that the document is given to the auditor within 14 days of the request being made. An auditor may only request documents that are relevant to the preparation of a report about the operations of the entity or the RSE licensee of the entity.

35AB(2)
A trustee commits an offence if the trustee contravenes subsection (1).

Penalty: Imprisonment for 2 years.

35AB(3)
A trustee commits an offence of strict liability if the trustee contravenes subsection (1).

Penalty: 60 penalty units.

Note:

For strict liability, see section 6.1 of the Criminal Code.

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SECTION 35AC APPOINTED AUDITOR'S FUNCTIONS AND DUTIES

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35AC(1)
This section applies if the RSE licensee law:

(a) requires an auditor of a registrable superannuation entity to be appointed; or

(b) requires or permits a function or duty to be performed, or a power to be exercised, by an auditor.

35AC(1A)

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Subject to this Part, the following may be appointed as an auditor of the registrable superannuation entity:

(a) an individual;

(b) a firm;

(c) a company.

The entity may only have one auditor.

Note:

In addition to audit requirements under the RSE licensee law, a registrable superannuation entity may have audit requirements under Chapter 2M of the Corporations Act 2001. Subsection (8) sets out a rule that is applicable in such a case.

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35AC(2)

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The RSE licensee of the registrable superannuation entity must not appoint an individual as an auditor of the entity unless the RSE licensee is reasonably satisfied that the individual:

(a) meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; and

(b) has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; and

(c)

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is not a member or employee of a firm that is disqualified under section 130EA; and

(d)

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is not a director or employee of a company that is disqualified under section 130EA.

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35AC(2A)

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The RSE licensee of the registrable superannuation entity must not appoint a firm or company as an auditor of the entity unless the RSE licensee is reasonably satisfied that:

(a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company:

(i) meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; and

(ii) has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; and

(b) the firm or company has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA.

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35AC(3)

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An individual, company or firm that is appointed as an auditor must perform the functions and duties set out in the RSE licensee law that are relevant to the appointment of the individual, company or firm.

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35AC(4)
The appointed auditor must comply with the RSE licensee law in performing the functions and duties.

35AC(5)
The trustee of the registrable superannuation entity to whom the RSE licensee law applies must make any arrangements that are necessary to enable the appointed auditor to perform the functions and duties.

35AC(6)

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The RSE licensee of the registrable superannuation entity must end the appointment of an individual as an auditor of the entity if the RSE licensee becomes aware that the individual:

(a) no longer meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; or

(b) has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; or

(c)

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is a member or employee of a firm that is disqualified under section 130EA; or

(d)

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is a director or employee of a company that is disqualified under section 130EA.

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35AC(7)

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The RSE licensee of the registrable superannuation entity must end the appointment of a firm or company as an auditor of the entity if the RSE licensee becomes aware that:

(a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company:

(i) no longer meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; or

(ii) has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; or

(b) the firm or company has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA.

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35AC(8)

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If the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001, the RSE licensee for the entity must ensure that the appointed auditor of the entity is the individual, firm or company that is the auditor of the entity for the purposes of that Chapter.

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35AC(9)

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If:

(a) the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001; and

(b) an individual, firm or company ceases to be the auditor of the entity for the purposes of that Chapter;

then, for the purposes of the RSE licensee law, the appointment of the individual, firm or company as the auditor of the entity ends at the time of the cessation.

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SECTION 35AD APPOINTED ACTUARY'S FUNCTIONS AND DUTIES

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35AD(1)
This section applies if the RSE licensee law:

(a) requires an actuary of a registrable superannuation entity to be appointed; or

(b) requires or permits a function or duty to be performed, or a power to be exercised, by an actuary.

35AD(2)
The RSE licensee of a registrable superannuation entity must not appoint a person as an actuary of the entity unless the RSE licensee is reasonably satisfied that the person:

(a) meets the eligibility criteria for actuaries of registrable superannuation entities set out in the prudential standards; and

(b) has not been disqualified from being or acting as an actuary of a registrable superannuation entity under section 130D.

35AD(3)
A person who is appointed as an actuary must perform the functions and duties set out in the RSE licensee law that are relevant to the person's appointment.

35AD(4)
The appointed actuary must comply with the RSE licensee law in performing the functions and duties.

35AD(5)
The trustee of the registrable superannuation entity to whom the RSE licensee law applies must make any arrangements that are necessary to enable the appointed actuary to perform the functions and duties.

35AD(6)
The RSE licensee of a registrable superannuation entity must end the appointment of a person as an actuary of the entity if the RSE licensee becomes aware that the person:

(a) no longer meets the eligibility criteria for actuaries of registrable superannuation entities set out in the prudential standards; or

(b) has been disqualified from being or acting as an actuary of a registrable superannuation entity under section 130D.

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Division 3 - Obligations for self managed superannuation funds

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SECTION 35AE ACCOUNTING RECORDS

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Accounting records must be kept etc.

35AE(1)
Each trustee of a superannuation entity that is a self managed superannuation fund must ensure that:

(a) accounting records that correctly record and explain the transactions and financial position of the entity are kept; and

(b) the accounting records of the entity are kept in a way that enables the following to be prepared:

(i) the accounts and statements of the entity referred to in section 35B;

(ii) the returns of the entity referred to in section 35D; and

(c) the accounting records of the entity are kept in a way that enables those accounts, statements and returns to be conveniently and properly audited in accordance with this Act.

35AE(2)
If accounting records of a superannuation entity that is a self managed superannuation fund are kept in accordance with subsection (1), each trustee of the superannuation entity must ensure that:

(a) the records are retained for at least 5 years after the end of the year of income to which the transactions relate; and

(b) the records are kept in Australia; and

(c) the records are kept:

(i) in writing in the English language; or

(ii) in a form in which they are readily accessible and readily convertible into writing in the English language.

Offences

35AE(3)
A trustee commits an offence if the trustee contravenes subsection (1) or (2).

Penalty: 100 penalty units.

35AE(4)
A trustee commits an offence of strict liability if the trustee contravenes subsection (1) or (2).

Penalty: 50 penalty units.

Note:

For strict liability, see section 6.1 of the Criminal Code.

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SECTION 35B ACCOUNTS AND STATEMENTS

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35B(1)
Each trustee of a superannuation entity that is a self managed superannuation fund must, in respect of each year of income of the fund, ensure that the following accounts and statements are prepared in respect of the entity:

(a) except where the regulations provide that this paragraph does not apply - a statement of financial position;

(b) except where the regulations provide that this paragraph does not apply - an operating statement;

(c) the accounts and statements specified in the regulations.

35B(2)
The regulations may provide for or in relation to the preparation of accounts and statements covered by subsection (1) If the regulations do so, the accounts and statements covered by subsection (1) must be prepared in accordance with the regulations.

35B(3)
The accounts and statements prepared in accordance with subsection (1) must be signed as follows:

(a)

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if there is a single corporate trustee - by:

(i) if the corporate trustee has one or 2 directors - each director; or

(ii) otherwise - at least half of the directors; or

(b)

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if there is a group of individual trustees - by:

(i) if there are only 2 trustees - both trustees; or

(ii) otherwise - at least half of the trustees.

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35B(4)
Each trustee must ensure that the accounts and statements prepared in accordance with subsection (1) are retained for a period of 5 years after the end of the year of income to which they relate.

35B(5)
A person commits an offence if the person contravenes this section.

Penalty: 100 penalty units.

35B(6)
A person commits an offence if the person contravenes this section. This is an offence of strict liability.

Penalty: 50 penalty units.

Note 1:

For strict liability , see section 6.1 of the Criminal Code.

Note 2:

Section 166 imposes an administrative penalty for a contravention of this section.

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SECTION 35C AUDIT OF ACCOUNTS AND STATEMENTS

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35C(1)

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For each year of income, each trustee of a superannuation entity that is a self managed superannuation fund must ensure that an approved SMSF auditor is appointed to give the trustee or trustees a report, in the approved form, of the operations of the entity for that year. The appointment must be made within whichever of the periods set out in the regulations applies to the entity.

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35C(1A)
(Repealed by No 61 of 2013)

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35C(2) [Auditor's request for documents]

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If an auditor requests, in writing, a trustee of a superannuation entity that is a self managed superannuation fund to give the auditor a document, each trustee of the entity must ensure that the document is given to the auditor within 14 days of the request being made. Only documents that are relevant to the preparation of the report may be requested.

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35C(3) [Offence]

A trustee commits an offence if the trustee contravenes subsection (1) or (2).

Penalty: Imprisonment for 2 years.

35C(4) [Strict liability]

A trustee commits an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.

Penalty: 50 penalty units.

Note:

For strict liability , see section 6.1 of the Criminal Code.

35C(5)

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Without limiting subsection (1), an approved form:

(a) must either:

(i) relate solely to the audit of the accounts and statements referred to in subsection 35B(1) and prepared in respect of a year of income; or

(ii) relate only to the audit of those accounts and statements and of any other accounts and statements, prepared in respect of a year of income, that are identified in the form; and

(b) must include a statement by the auditor as to the extent of the auditor's compliance with the auditor independence requirements referred to in paragraph 128F(d); and

(c) must include a statement by the auditor as to whether, in the auditor's opinion, each trustee of the entity has, during the year of income, complied with the provisions of this Act and the regulations that are identified in the form.

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35C(6) [Provision of report to trustees]

The auditor must give the report to each trustee of the entity within the prescribed period after the end of the year of income.

35C(7)
(Repealed by No 61 of 2013)

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35C(8)
The auditor commits an offence if the auditor contravenes subsection (6). This is an offence of strict liability.

Penalty: 50 penalty units.

Note:

For strict liability , see section 6.1 of the Criminal Code.

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SECTION 35D TRUSTEE TO LODGE ANNUAL RETURNS

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35D(1) Lodgment.

Each trustee of a superannuation entity that was a self managed superannuation fund at any time during a year of income must, within the reporting period, or within such longer period as the Commissioner of Taxation allows, ensure that the Commissioner of Taxation is given a return under this section.

35D(2) Period for lodgment.

The reporting period is the period that begins at the end of the year of income and whose length is:

(a) prescribed by the regulations for the purposes of this paragraph; or

(b) if the length of the period is not prescribed - specified, by legislative instrument, by the Commissioner of Taxation.

35D(3) Form of return.

The return must:

(a) be in the approved form; and

(b) contain the information required by the form in relation to the fund in respect of that year of income or in relation to another year of income, or both.

Note:

The approved form of return may require a trustee to set out the tax file number of the entity. See subsection 299U(2).

35D(4) [Offence]

A person commits an offence if the person contravenes this section.

Penalty: 50 penalty units.

35D(5) [Strict liability]

A person commits an offence if the person contravenes this section. This is an offence of strict liability.

Penalty: 25 penalty units.

Note:

For strict liability , see section 6.1 of the Criminal Code.

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36 (Repealed) SECTION 36 TRUSTEE TO GIVE COPY OF AUDIT REPORT TO APRA (REGISTRABLE SUPERANNUATION ENTITIES ONLY)
(Repealed by No 61 of 2013)

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36A (Repealed) SECTION 36A TRUSTEE OF SELF MANAGED SUPERANNUATION FUND TO LODGE ANNUAL RETURNS
(Repealed by No 154 of 2007)

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PART 5 - NOTICES ABOUT COMPLYING FUND STATUS

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Division 1 - Objects and interpretation

SECTION 37

37 OBJECTS OF PART
The objects of this Part are:

(a) to provide for a system of notices about complying fund status in relation to a year of income (see Division 2); and

(b) to provide for those notices to be used to determinecomplying fund status for tax purposes (see Division 3).

SECTION 38

38 MEANING OF ENTITY
In this Part:

entity
means a fund, scheme or trust.

Division 2 - The Regulator may give notices about complying fund status

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SECTION 38A

38A MEANING OF REGULATORY PROVISION

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In this Division:

regulatory provision
, in relation to a superannuation entity, means:

(a) a provision of this Act or the regulations; or

(aa) a provision of the Financial Sector (Collection of Data) Act 2001; or

(aba) a provision of the Financial Accountability Regime Act 2023; or

(ab) for a superannuation entity that is a self managed superannuation fund - any of the following provisions in Schedule 1 to the Taxation Administration Act 1953:

(i) subsections 284-75(1) and (4) and section 284-95;

(ii) Division 390;

(iii) subsection 136-80(1); or

(b) any of the following provisions of the Corporations Act 2001 as applying in relation to financial products (within the meaning of Division 3 of Part 7.1 of that Act) that are interests in the superannuation entity:

(i) subsection 1013K(1) or (2);

(ii) subsection 1016A(2) or (3);

(iii) subsection 1017B(1);

(iv) subsection 1017C(2), (3) or (5);

(v) subsection 1017D(1);

(vi) subsection 1017DA(3);

(vii) subsection 1017E(3) or (4);

(viii) subsection 1020E(8) or (9);

(ix) subsection 1021C(1) or (3);

(x) subsection 1021D(1);

(xi)subsection 1021E(1);

(xii) subsection 1021O(1) or (3);

(xiii) section 1041E;

(xiv) subsection 1041F(1);

(xv) subsection 1043A(1) or (2);

(xvi) any other provisions that are specified in regulations made for the purposes of this subparagraph; or

(c) any of the following provisions of the Corporations Act 2001:

(i) subsection 1021NA(1), (2) or (3);

(ii) subsection 1021NB(1), (2) or (3).

(iii) (Repealed by No 40 of 2019)

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SECTION 39 MEANING OF CONTRAVENTION

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39(1) ["Contravention"]

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For the purposes of this Division, a contravention of a regulatory provision is to be ignored unless the contravention is:

(a) an offence; or

(b) a contravention of a civil penalty provision; or

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(c) a contravention of a provision mentioned in paragraph 38A(ab).

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39(1A) [Commits an offence]

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In relation to a regulatory provision that states that a person commits an offence if they engage, or fail to engage, in specified conduct, a person is, for the purposes of this Division, taken to contravene the provision if the person engages, or fails to engage, in that conduct.

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39(1B) [Conduct giving rise to contravention]

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To avoid doubt, for the purposes of this Division, treat conduct giving rise to an administrative penalty under subsection 284-75(1) or (4) in Schedule 1 to the Taxation Administration Act 1953 as a contravention of that subsection.

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39(2) [Balance of probabilities]

For the purposes of this Division, it is sufficient if a contravention is established on the balance of probabilities.

SECTION 40 NOTICES BY THE REGULATOR TO TRUSTEE

40(1) Notice about complying fund status.

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The Regulator may give a written notice to a trustee of an entity stating:

(a) whether the entity is or is not a complying superannuation fund; or

(b) whether the entity is or is not a complying approved deposit fund; or

(c) whether the entity is or is not a pooled superannuation trust;

as the case may be, in relation to a year of income specified in the notice.

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40(2) Reasons.

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If the Regulator gives a notice to a trustee of an entity stating that:

(a) the entity is not a complying superannuation fund; or

(b) the entity is not a complying approved deposit fund; or

(c) the entity is not a pooled superannuation trust;

as the case may be, in relation to a year of income, the notice must set out the reasons why the Regulator so stated.

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40(3) Commissioner of Taxation to be told about notice.

When the APRA gives a notice under this section, APRA must give particulars of the notice to the Commissioner of Taxation.

Note:

A statement of the tax file number of the entity may accompany the particulars of the notice. See subsection 299U(3).

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40(4) Revocation.

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If:

(a) the Regulator gives a notice under this section (the original notice ) to a trustee of an entity stating that:

(i) the entity is a complying superannuation fund; or

(ii) the entity is a complying approved deposit fund; or

(iii) the entity is a pooled superannuation trust;

as the case may be, in relation to a year of income; and

(b) the Regulator subsequently gives a notice under this section (the second notice ) to a trustee of the entity stating that:

(i) the entity is not a complying superannuation fund; or

(ii) the entity is not a complying approved deposit fund; or

(iii) the entity is not a pooled superannuation trust;

as the case may be, in relation to the year of income;

the second notice is taken to revoke the original notice.

Note:

Because "the Regulator" is whichever of APRA or the Commissioner of Taxation is administering this provision in respect of a fund, a notice given by one of those Regulators could revoke a notice given by the other Regulator. This might happen if a fund became, or stopped being, a self managed superannuation fund after the first notice was given.

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SECTION 41 WHEN THE REGULATOR OBLIGED TO GIVE NOTICE OF COMPLIANCE

41(1) [Notice not required]

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Except as provided by subsection (2), the Regulator is not obliged to give a notice under section 40.

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41(2) [Where notice required]

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The Regulator must give a notice under section 40 to a trustee of an entity stating that the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case may be, in relation to a year of income (the current year of income ) if:

(a) the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to the current year of income; and

(b) either:

(i) the Regulator has not given a notice to a trustee of the entity under section 40 stating that the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to a previous year of income; or

(ii) both:

(A) the Regulator has given a notice to a trustee of the entity under section 40 stating that the entity is not a complying superannuation fund, is not a complying approved deposit fund or is not a pooled superannuation trust, as the case requires, in relation to a previous year of income; and

(B) the Regulator has not given a notice to a trustee of the entity under section 40 stating that the fund is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to a year of income that is later than that previous year of income and earlier than the current year of income.

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41(3) [Previous year of income]

Despite section 2, a previous year mentioned in subsection (2) may be a year of income earlier than the 1994-95 year of income (see section 49). However, despite section 49, for the purposes of the application of subsection (2) to a complying superannuation fund, if the fund was not a regulated superannuation fund at all times during the current year of income when the fund was in existence, paragraph (2)(b) does not apply unless the previous year of income is the 1994-95 year of income or a later year of income.

41(4) [Notice deemed not given]

For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.

SECTION 42 COMPLYING SUPERANNUATION FUND

42(1)
An entity is a complying superannuation fund in relation to a year of income for the purposes of this Division if:

(a) either:

(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or

(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and

(b)

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either of the following conditions is satisfied:

(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the year of income;

(ii) both:

(A) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and

(B) the entity did not fail the culpability test set out in subsection (1A) in relation to any of those contraventions; and

(c)

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the entity was not a self managed superannuation fund at any time during the year of income.

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42(1AA)

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An entity is also a complying superannuation fund in relation to the 1994-95 year of income or a later year of income if:

(a) the entity:

(i) is a superannuation fund that came into existence during the year of income; or

(ii) was a resident approved deposit fund that became a superannuation fund during the year of income; and

(b)

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the entity complied with subsections 19(2) to (4):

(i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or

(ii) within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 60 days) allows; and

(c)

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either of the following conditions is satisfied:

(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the whole of the period (the pre-lodgment period ) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4);

(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the pre-lodgment period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the pre-lodgment period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and

(d) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the pre-lodgment period; and

(da)

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the entity was not a self managed superannuation fund at any time during the year of income; and

(e) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the pre-lodgment period.

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42(1AB)

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In determining for the purpose of paragraph (1AA)(c) whether any of the regulatory provisions were contravened in respect of the entity in respect of the pre-lodgment period, the regulatory provisions are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.

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42(1AC)

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An entity is also a complying superannuation fund in relation to the 1994-95 year of income or a later year of income if:

(a)

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the trustee, or the trustees, of the entity have purported to make an election under subsection 19(4); and

(b)

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the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after a trustee of the entity finds out (whether by written notice from the Commissioner of Taxation or otherwise) that they were not complied with, or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 28 days) allows; and

(c)

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except where a trustee of the entity received written notice from the Commissioner of Taxation about the non-compliance - a trustee of the entity tells the Commissioner of Taxation in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 7 days) allows; and

(d)

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either of the following conditions is satisfied:

(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the whole of the period (the rectification period ) that began when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4) and ended when the entity complied with subsections 19(2) to (4);

(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the rectification period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and

(e)

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if the fund was in existence before the beginning of its 1994-95 year of income - under regulations made for the purposes of section former section 50 (as those regulations were in force as at the beginning of that year of income), the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the fund's 1994-95 year of income and ended when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4); and

(f) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and

(fa) the entity was not a self managed superannuation fund at any time during the year of income; and

(g) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the rectification period.

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42(1AD)

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In determining for the purpose of paragraph (1AC)(d) whether any of the regulatory provisions were contravened in respect of the entity in respect of the rectification period, the regulatory provisions are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.

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42(1A)

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For the purposes of subparagraph (1)(b)(ii), an entity fails the culpability test in relation to a particular contravention of a regulatory provision if:

(a)

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both:

(i) all of the members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention; and

(ii) the Regulator, after considering:

(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and

(B) the seriousness of the contravention; and

(C) all other relevant circumstances;
thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned; or

(b)

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all of the following conditions are satisfied:

(i) one or more members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention;

(ii) one or more members of the entity (the innocent members ) were not in any way directly or indirectly knowingly concerned in, or party to, the contravention;

(iii) none of the innocent members would suffer any substantial financial detriment if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned;

(iv) the Regulator, after considering:

(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and

(B) the seriousness of the contravention; and

(C) all other relevant circumstances;
thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned.

Note:

The culpability test is still relevant to a fund that has been a self managed fund during only part of a year of income - see subparagraph 42A(2)(b)(ii), paragraph 42A(3)(g) and subparagraph 42A(4)(f)(ii).

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42(1B)
For the purposes of subsection (1A), if there is a question whether a person was in any way directly or indirectly knowingly concerned in, or party to, a particular contravention, that question may be decided on the balance of probabilities.

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42(2)
In this section, a reference to a member of an entity means, if the entity is an approved deposit fund, a beneficiary of the fund.

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42(3)
(Repealed by No 135 of 2020)

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SECTION 42A COMPLYING SUPERANNUATION FUND - FUND THAT HAS BEEN A SELF MANAGED SUPERANNUATION FUND AT ANY TIME DURING A YEAR

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42A(1) Entity that was a self managed superannuation fund throughout a year of income.

An entity that was a self managed superannuation fund at all times during a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if:

(a) either:

(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or

(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and

(b) the entity passes the test in subsection (5) in relation to the year of income.

42A(2) Entity that was a self managed superannuation fund during only part of a year of income.

An entity that was a self managed superannuation fund during a part or parts of a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if:

(a) either:

(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or

(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and

(b)

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both:

(i) the entity passes the test in subsection (5) in respect of the part or parts of the year of income during which the entity was a self managed superannuation fund; and

(ii) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any other part or parts of the year of income - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.

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42A(3) Funds coming into existence during year of income etc.

An entity that:

(a) is a superannuation fund that came into existence during the year of income and at that time or later in the year of income became a self managed superannuation fund; or

(b) was a resident approved deposit fund that became a superannuation fund during the year of income;

is also a complying superannuation fund in relation to the year of income if:

(c)

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the entity complied with subsections 19(2) to (4):

(i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or

(ii) within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 60 days) allows; and

(d)

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either of the following conditions is satisfied:

(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the whole of the period (the pre-lodgment period ) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4);

(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the pre-lodgment period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the pre-lodgment period, it would be reasonable for the fund to be treated as if it hadsatisfied the regulatory provisions; and

(e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the pre-lodgment period; and

after the pre-lodgment period:

(f) the entity passed the test in subsection (5) in respect of the part or parts of the year of income, occurring after the pre-lodgment period, during which the entity was a self managed superannuation fund; and

(g)

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if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any part or parts of the year of income, occurring after the pre-lodgment period, during which the entity was not a self managed superannuation fund - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.

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Trustee makes an election

42A(4)

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An entity that was a self managed superannuation fund at some time, or at all times, during a year of income is also a complying superannuation fund in relation to the year of income if:

(a)

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the trustee, or the trustees, of the entity have purported to make an election under subsection 19(4); and

(b)

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if, when the election was made, the requirements of subsections 19(2) to (4) are not complied with:

(i) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after a trustee of the entity finds out (whether by written notice from the Commissioner of Taxation or otherwise) that they were not complied with, or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 28 days) allows; and

(ii) except where a trustee of the entity received written notice from the Commissioner of Taxation about the non-compliance - a trustee of the entity tells the Commissioner of Taxation in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 7 days) allows; and

(c)

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either of the following conditions is satisfied:

(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the whole of the period (the rectification period ) that began when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4) and ended when the entity complied with subsections 19(2) to (4);

(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the rectification period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and

(d)

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if the fund was in existence before the beginning of its 1994-95 year of income - under regulations made for the purposes of former section 50 (as those regulations were in force as at the beginning of that year of income), the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the fund's 1994-95 year of income and ended when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4); and

(e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and

(f)

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in respect of the part of the year of income occurring after the end of the rectification period, both:

(i) the entity passed the test in subsection (5) in respect of the part or parts of the year of income occurring after the end of the rectification period, during which the entity was a self managed superannuation fund; and

(ii) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any other part or parts of the year of income occurring after the end of the rectification period, during which the entity was not a self managed superannuation fund - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.

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42A(5) Circumstances in which entity passes the test in this subsection.

An entity passes the test in this subsection in relation to a year of income or part of a year of income if:

(a)

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no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the year of income or the part of the year of income; or

(b)

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if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the year of income or the part of the year of income, the Regulator, after considering:

(i) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and

(ii) the seriousness of the contravention or contraventions; and

(iii) all other relevant circumstances;

thinks that a notice should nevertheless be given stating that the entity is a complying superannuation fund in relation to the year of income concerned.

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42A(6) Determining whether contravention.

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In determining for the purposes of this section whether any of the regulatory provisions were contravened in respect of the entity in respect of the pre-lodgment period or the rectification period, the regulatory provisions are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.

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42A(7)
(Repealed by No 135 of 2020)

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SECTION 43

43 COMPLYING APPROVED DEPOSIT FUND
An entity is a complying approved deposit fund in relation to a year of income for the purposes of this Division if:

(a) at all times during the year of income when the entity was in existence, the entity was a resident approved deposit fund; and

(b) any of the following conditions is satisfied:

(i) the trustee did not contravene any of the regulatory provisions in relation to the entity in respect of the year of income;

(ii) both:

(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and

(B) each contravention was rectified within a period of 30 days after the trustee became aware of the contravention or within such further period as APRA allows;

(iii) both:

(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and

(B) APRA is satisfied that the seriousness or frequency, or both, of the contraventions does not warrant the giving of a notice stating that the entity is not a complying approved deposit fund in relation to the year of income;

(iv) APRA, after considering all relevant circumstances, thinks that a notice should be given stating that the entity is a complying approved deposit fund in relation to the year of income.

View history reference

View history note

SECTION 44

44 POOLED SUPERANNUATION TRUST
An entity is a pooled superannuation trust in relation to a year of income for the purposes of this Division if:

(a) at all times during the year of income when the entity was in existence, the entity was a pooled superannuation trust; and

(b) any of the following conditions is satisfied:

(i) the trustee did not contravene any of the regulatory provisions in relation to the entity in respect of the year of income;

(ii) both:

(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and

(B) each contravention was rectified within a period of 30 days after the trustee became aware of the contravention or such further period as APRA allows;

(iii) both:

(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and

(B) APRA is satisfied that the seriousness or frequency, or both, of the contraventions does not warrant the giving of a notice stating that the entity is not a pooled superannuation trust in relation to the year of income;

(iv) APRA, after considering all relevant circumstances, thinks that a notice should be given stating that the entity is a pooled superannuation trust in relation to the year of income.

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Division 3 - Complying fund status for tax purposes

SECTION 45 COMPLYING SUPERANNUATION FUND

45(1) [Complying superannuation fund for tax purposes]

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A fund is a complying superannuation fund for the purposes of the Income Tax Assessment Act in relation to a year of income (the current year of income ) if, and only if:

(a) the Regulator has given a notice to a trustee of the fund under section 40 stating that the fund is a complying superannuation fund in relation to the current year of income; or

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(b) the Regulator has given a notice to a trustee of the fund under section 40 stating that the fund is a complying superannuation fund in relation to a previous year of income and has not given a notice to a trustee of the fund under that section stating that the fund was not a complying superannuation fund in relation to:

(i) the current year of income; or

(ii) a year of income that is:

(A) later than that previous year of income; and

(B) earlier than the current year of income.

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45(2) [Previous year of income]

Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994-95 year of income (see section 49). However, despite section 49, if the fund was not a regulated superannuation fund at all times during the current year of income when the fund was in existence, paragraph (1)(b) does not apply unless the previous year of income is the 1994-95 year of income or a later year of income.

45(3) [Notice deemed not given]

For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.

45(4) [Amendment of assessment]

Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3).

45(5) [Notice deemed given at beginning of income year]

For the purposes of this section, if a notice under section 40 is given in relation to a fund in relation to a year of income, the notice is taken to have been given at the beginning of the year of income.

45(6) [Exempt public sector superannuation scheme]

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Despite subsection (1), if, at all times during a year of income when a fund was in existence, the fund was, or was part of, an exempt public sector superannuation scheme, the fund is a complying superannuation fund in relation to the year of income for the purposes of the Income Tax Assessment Act.

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SECTION 46

46 COMPLYING SUPERANNUATION SCHEME - SUPERANNUATION GUARANTEE CHARGE
An exempt public sector superannuation scheme is taken to be a complying superannuation scheme for the purposes of the Superannuation Guarantee (Administration) Act 1992.

SECTION 47 COMPLYING APPROVED DEPOSIT FUND

47(1) [Complying approved deposit fund for tax purposes]

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A fund is a complying approved deposit fund for the purposes of the Income Tax Assessment Act in relation to a year of income (the current year of income ) if, and only if:

(a) APRA has given a notice to the trustee under section 40 stating that the fund is a complying approved deposit fund in relation to the current year of income; or

(b) APRA has given a notice to the trustee under section 40 stating that the fund is a complying approved deposit fund in relation to a previous year of income and has not given a notice to the trustee under that section stating that the fund was not a complying approved deposit fund in relation to:

(i) the current year of income; or

(ii) a year of income that is:

(A) later than that previous year of income; and

(B) earlier than the current year of income.

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47(2) [Previous year of income]

Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994-95 year of income (see section 49).

47(3) [Notice deemed not given]

For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.

47(4) [Amendment of assessment]

Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3).

47(5) [Notice deemed given at beginning of income year]

SECTION 48 POOLED SUPERANNUATION TRUST

48(1) [Pooled superannuation trust for tax purposes]

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A unit trust is a pooled superannuation trust for the purposes of the Income Tax Assessment Act in relation to a year of income (the current year of income ) if, and only if:

(a) APRA has given a notice to the trustee under section 40 stating that the trust is a pooled superannuation trust in relation to the current year of income; or

(b) APRA has given a notice to the trustee under section 40 stating that the trust is a pooled superannuation trust in relation to a previous year of income and has not given a notice to the trustee under that section stating that the trust was not a pooled superannuation trust in relation to:

(i) the current year of income; or

(ii) a year of income that is:

(A) later than that previous year of income; and

(B) earlier than the current year of income.

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48(2) [Previous year of income]

Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994-95 year of income (see section 49).

48(3) [Notice deemed not given]

For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.

48(4) [Amendment of assessment]

Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3).

48(5) [Notice deemed given at beginning of income year]

For the purposes of this section, if a notice under section 40 is given in relation to a trust in relation to a year of income, the notice is taken to have been given at the beginning of the year of income.

SECTION 49 TRANSITIONAL - NOTICES UNDER THE REPEALED PROVISIONS OF THE OCCUPATIONAL SUPERANNUATION STANDARDS ACT 1987

49(1) Superannuation funds - positive.

For the purposes of paragraph 41(2)(b) and this Division, if:

(a) a notice under repealed section 12 or 13 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that:

(i) a fund satisfied the superannuation fund conditions in relation to a year of income; or

(ii) a fund should be treated as if it had satisfied the superannuation fund conditions in relation to a year of income; and

(b) the year of income is the 1993-94 year of income or an earlier year of income;

the notice has effect as if it were a notice under section 40 stating that the fund is a complying superannuation fund in relation to the year of income.

49(2) ADFs - positive.

For the purposes of paragraph 41(2)(b) and this Division, if:

(a) a notice under repealed section 14 or 15 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that:

(i) a fund satisfied the approved deposit fund conditions in relation to a year of income; or

(ii) a fund should be treated as if it had satisfied the approved deposit fund conditions in relation to a year of income; and

(b) the year of income is the 1993-94 year of income or an earlier year of income;

the notice has effect as if it were a notice under section 40 stating that the fund is a complying approved deposit fund in relation to the year of income.

49(3) PSTs - positive.

For the purposes of paragraph 41(2)(b) and this Division, if:

(a) a notice under repealed section 15B or 15C of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that:

(i) a trust satisfied the pooled superannuation trust conditions in relation to a year of income; or

(ii) a trust should be treated as if it had satisfied the pooled superannuation trust conditions in relation to a year of income; and

(b) the year of income is the 1993-94 year of income or an earlier year of income;

the notice has effect as if it were a notice under section 40 stating that the trust is a pooled superannuation trust in relation to the year of income.

49(4) Superannuation funds - negative.

For the purposes of paragraph 41(2)(b) and this Division, if:

(a) a notice under the repealed section 12 or 13 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a fund satisfied the superannuation fund conditions in relation to a year of income; and

(b) the year of income is the 1993-94 year of income or an earlier year of income;

the notice has effect as if it were a notice under section 40 stating that the fund is not a complying superannuation fund in relation to the year of income.

49(5) ADFs - negative.

For the purposes of paragraph 41(2)(b) and this Division, if:

(a) a notice under the repealed section 14 or 15 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a fund satisfied the approved deposit fund conditions in relation to a year of income; and

(b) the year of income is the 1993-94 year of income or an earlier year of income;

the notice has effect as if it were a notice under section 40 stating that the fund is not a complying approved deposit fund in relation to the year of income.

49(6) PSTs - negative.

For the purposes of paragraph 41(2)(b) and this Division, if:

(a) a notice under the repealed section 15B or 15C of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a trust satisfied the pooled superannuation trust conditions in relation to a year of income; and

(b) the year of income is the 1993-94 year of income or an earlier year of income;

the notice has effect as if it were a notice under section 40 stating that the trust is not a pooled superannuation trust in relation to the year of income.

49(7) OSSA - continued operation.

A reference in this section to a provision of the Occupational Superannuation Standards Act 1987 includes a reference to that provision as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.

50 (Repealed) SECTION 50 TRANSITIONAL - LATE LODGMENT OF ELECTIONS BY TRUSTEES OF SUPERANNUATION FUNDS
(Repealed by No 49 of 2019)

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PART 6 - PROVISIONS RELATING TO GOVERNING RULES OF SUPERANNUATION ENTITIES

SECTION 51

51 OBJECT OF PART
The object of this Part is to set out rules about the content of the governing rules of superannuation entities.

SECTION 51A

51A COVENANTS ARE CUMULATIVE

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To avoid doubt, each covenant referred to in sections 52 to 53 or prescribed under section 54A that applies to a trustee of a superannuation entity, or a director of a corporate trustee of a superannuation entity, applies in addition to every other covenant or obligation referred to in those sections that applies to the trustee or director.

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SECTION 52 COVENANTS TO BE INCLUDED IN GOVERNING RULES - REGISTRABLE SUPERANNUATION ENTITIES

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Governing rules taken to contain covenants

52(1)
If the governing rules of a registrable superannuation entity do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.

Note:

There are civil and criminal consequences for contravening a covenant: see sections 54B, 54C, 55 and 202. Civil consequences may arise from an act or omission resulting in a contravention of a covenant regardless of whether or not the act or omission was intentional. Criminal consequences under section 202 require proof of dishonesty or intention in relation to a contravention of a covenant.

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General covenants

52(2)

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The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a) to act honestly in all matters concerning the entity;

(b) to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to an entity of which it is trustee and on behalf of the beneficiaries of which it makes investments;

(c)

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to perform the trustee's duties and exercise the trustee's powers in the best financial interests of the beneficiaries;

(d) where there is a conflict between the duties of the trustee to the beneficiaries, or the interests of the beneficiaries, and the duties of the trustee to any other person or the interests of the trustee or an associate of the trustee:

(i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and

(ii) to ensure that the duties to the beneficiaries are met despite the conflict; and

(iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and

(iv) to comply with the prudential standards in relation to conflicts;

(e) to act fairly in dealing with classes of beneficiaries within the entity;

(f) to act fairly in dealing with beneficiaries within a class;

(g) to keep the money and other assets of the entity separate from any money and assets, respectively:

(i) that are held by the trustee personally; or

(ii) that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the entity;

(h) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee's functions and powers;

(i) if there are any reserves of the entity - to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the entity's investment strategies and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due;

(j) to allow a beneficiary of the entity access to any prescribed information or any prescribed documents.

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Superannuation trustee

52(3)
In paragraph (2)(b), a superannuation trustee is a person whose profession, business or employment is or includes acting as a trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity.

Payments to third parties must be in best financial interests of beneficiaries

52(3A)

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To avoid doubt, the obligations of the trustee under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the entity.

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Obligations to beneficiaries override obligations under certain other Acts

52(4)
The obligations of the trustee under paragraph (2)(d) override any conflicting obligations an executive officer or employee of the trustee has under:

(a) Part 2D.1 of the Corporations Act 2001; or

(b)

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Subdivision A of Division 3 of Part 2-2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials) or any rules made for the purposes of that Subdivision.

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Trustee not prevented from engaging or authorising persons to act on trustee's behalf

52(5)
A covenant referred to in paragraph (2)(h) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.

Investment covenants

52(6)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a) to formulate, review regularly and give effect to an investment strategy for the whole of the entity, and for each investment option offered by the trustee in the entity, having regard to:

(i) the risk involved in making, holding and realising, and the likely return from, the investments covered by the strategy, having regard to the trustee's objectives in relation to the strategy and to the expected cash flow requirements in relation to the entity; and

(ii) the composition of the investments covered by the strategy, including the extent to which the investments are diverse or involve the entity in being exposed to risks from inadequate diversification; and

(iii) the liquidity of the investments covered by the strategy, having regard to the expected cash flow requirements in relation to the entity; and

(iv) whether reliable valuation information is available in relation to the investments covered by the strategy; and

(v) the ability of the entity to discharge its existing and prospective liabilities; and

(vi) the expected tax consequences for the entity in relation to the investments covered by the strategy; and

(vii) the costs that might be incurred by the entity in relation to the investments covered by the strategy; and

(viii) any other relevant matters;

(b) to exercise due diligence in developing, offering and reviewing regularly each investment option;

(c) to ensure the investment options offered to each beneficiary allow adequate diversification.

Insurance covenants

52(7)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a) to formulate, review regularly and give effect to an insurance strategy for the benefit of beneficiaries of the entity that includes provisions addressing each of the following matters:

(i) the kinds of insurance that are to be offered to, or acquired for the benefit of, beneficiaries;

(ii) the level, or levels, of insurance cover to be offered to, or acquired for the benefit of, beneficiaries;

(iii) the basis for the decision to offer or acquire insurance of those kinds, with cover at that level or levels, having regard to the demographic composition of the beneficiaries of the entity;

(iv) the method by which the insurer is, or the insurers are, to be determined;

(b) to consider the cost to all beneficiaries of offering or acquiring insurance of a particular kind, or at a particular level;

(c) to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries;

(d) to do everything that is reasonable to pursue an insurance claim for the benefit of a beneficiary, if the claim has a reasonable prospect of success.

Covenants relating to risk

52(8)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a) to formulate, review regularly and give effect to a risk management strategy that relates to:

(i) the activities, or proposed activities, of the trustee, to the extent that they are relevant to the exercise of the trustee's powers, or the performance of the trustee's duties and functions, as trustee of the entity; and

(ii) the risks that arise in operating the entity;

(b) to maintain and manage in accordance with the prudential standards financial resources (whether capital of the trustee, a reserve of the entity or both) to cover the operational risk that relates to the entity.

Retirement income covenants

52(8A)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a) to formulate, review regularly and give effect to a retirement income strategy that meets the requirements in section 52AA;

(b) to take reasonable steps to gather the information necessary to inform the formulation and review of the strategy;

(c) to record the strategy in writing;

(d) to record in the document in which the strategy is recorded:

(i) each determination made by the trustee for the purposes of the strategy, and the reasons for the determination; and

(ii) each other decision made by the trustee in formulating, reviewing or giving effect to the strategy that the trustee considers to be significant, and the reasons for the decision; and

(iii) the steps taken to gather the information that informed the formulation of the strategy, and the reasons for taking those steps;

(e) to make a summary of the strategy publicly available on the website of the entity.

View history note

52(8B)
Subsection (8A) does not apply if the entity is a regulated superannuation fund, and the only benefits it provides to, or in respect of, its members are any of the following:

(a) death benefit;

(b) permanent incapacity benefit;

(c) a benefit provided if, and only if, a member is suffering temporary incapacity (within the meaning of the superannuation data and payment standards).

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Covenants relating to regulated superannuation funds - annual outcomes assessments

52(9)

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If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a)

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to determine, in writing, on an annual basis, for each MySuper product and choice product offered by the entity, whether the financial interests of the beneficiaries of the entity who hold the product are being promoted by the trustee, having regard to:

(i) if the product is a MySuper product - a comparison of the MySuper product with other MySuper products offered by other regulated superannuation funds, based on the factors mentioned in subsection (10), and a comparison of the MySuper product with any other benchmarks specified in regulations made for the purposes of this subparagraph; and

(ii) if the product is a choice product - a comparison of the choice product with the comparable choice products in relation to the choice product, based on factors mentioned in subsection (10A), and a comparison of the choice product with any other benchmarks specified in regulations made for the purposes of this subparagraph; and

(iii) the factors mentioned in subsection (11); and

(iv) the latest determination (if any) made by APRA under subsection 60C(2) for the product;

(aa) to determine, in writing, on an annual basis, whether each trustee of the entity is promoting the financial interests of the beneficiaries of the fund, as assessed against benchmarks specified in regulations made for the purposes of this paragraph;

(b) to make the determination referred to in paragraph (a), and a summary of the assessments and comparisons on which the determination is based, publicly available on the website of the entity;

(c) to do so within 28 days after the determination is made;

(d) to keep the determination, and the summary of the assessments and comparisons on which the determination is based, on the website until a new determination is made as referred to in paragraph (a).

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52(10)

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In comparing a MySuper product with other MySuper products, the trustees must compare each of the following:

(a) the fees and costs that affect the return to the beneficiaries holding the MySuper products;

(b) the return for the MySuper products (after the deduction of fees, costs and taxes);

(c) the level of investment risk for the MySuper products;

(d) any other matter set out in the prudential standards.

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52(10A)

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In comparing a choice product with the comparable choice products in relation to the choice product, the trustees must compare each of the following:

(a) the fees and costs that affect the return to the beneficiaries holding the choice products;

(b) the return for the choice products;

(c) the level of investment risk for the choice products;

(d) any other matter specified in the prudential standards.

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52(11)

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In determining whether the financial interests of the beneficiaries of the entity who hold a MySuper product or choice product are being promoted by the trustee, the trustee must assess each of the following:

(a) whether the options, benefits and facilities offered under the product are appropriate to those beneficiaries;

(b) whether the investment strategy for the product, including the level of investment risk and the return target, is appropriate to those beneficiaries;

(c) whether the insurance strategy for the product is appropriate to those beneficiaries;

(d) whether any insurance fees charged in relation to the product inappropriately erode the retirement income of those beneficiaries;

(e) any other relevant matters, including any matters set out in the prudential standards.

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Covenants relating to regulated superannuation funds - promoting financial interests of beneficiaries

52(12)

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If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include a covenant by each trustee of the entity to promote the financial interests of the beneficiaries of the entity who hold a MySuper product or a choice product, in particular returns to those beneficiaries (after the deduction of fees, costs and taxes).

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Covenants relating to regulated superannuation funds - MySuper products

52(13)

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If the entity is a regulated superannuation fund that offers a MySuper product, the covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a) to include in the investment strategy for the MySuper product the details of the trustee's determination of the matters mentioned in paragraph (9)(a);

(b) to include in the investment strategy for the MySuper product, and update each year:

(i) the investment return target over a period of 10 years for the assets of the entity that are attributed to the MySuper product; and

(ii) the level of risk appropriate to the investment of those assets.

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Covenants relating to regulated superannuation funds - failing annual performance assessments

52(14)

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(a) to comply with subsection 60E(2) (notifying beneficiaries);

(b) to comply with subsection 60F(2) (consequences of 2 consecutive fail assessments).

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SECTION 52AA RETIREMENT INCOME STRATEGY REQUIREMENTS - REGISTRABLE SUPERANNUATION ENTITIES

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52AA(1)
A retirement income strategy formulated for an entity by a trustee for the purposes of subsection 52(8A) must meet the requirements in this section.

52AA(2)
The strategy must be for the benefit of beneficiaries of the entity who are retired or who are approaching retirement and must address how the trustee will assist those beneficiaries to achieve and balance the following objectives:

(a) to maximise expected retirement income over the period of retirement;

(b) to manage expected risks to the sustainability and stability of retirement income over the period of retirement of the following kinds:

(i) longevity risks;

(ii) investment risks;

(iii) inflation risks;

(iv) any other risks to the sustainability and stability of the retirement income;

(c) to have flexible access to expected funds over the period of retirement.

Determining the class of beneficiaries who are retired or who are approaching retirement

52AA(3)
The trustee must determine the class of beneficiaries of the entity who are retired or who are approaching retirement for the purposes of the strategy. The class may be determined excluding beneficiaries who:

(a) only hold a defined benefit interest in the entity; and

(b) are not eligible to commute that benefit (whether during the period of retirement or otherwise).

52AA(4)
The strategy may divide the class of beneficiaries into sub-classes and make different provision in respect of those sub-classes.

Determining meaning of retirement income and period of retirement

52AA(5)
The trustee must determine the meaning of retirement income for the purposes of the strategy, which:

(a) must include income, net of tax, received during the period of retirement of the following kinds:

(i) income paid from, or supported by, a superannuation interest in the entity;

(ii) income from an age pension under the Social Security Act 1991; and

(b) may include income from any other source if the trustee determines that it is appropriate to include income from that source.

52AA(6)
The trustee must determine the meaning of period of retirement for the purposes of the strategy.

View history note

SECTION 52A COVENANTS RELATING TO DIRECTORS TO BE INCLUDED IN GOVERNING RULES - REGISTRABLE SUPERANNUATION ENTITIES

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Governing rules taken to contain covenants

52A(1)
If the governing rules of a registrable superannuation entity of which a trustee is a body corporate do not contain covenants to the effect of the covenants set out in subsection (2), those governing rules are taken to contain covenants to that effect.

Note:

View history note

The covenants

52A(2)
The covenants referred to in subsection (1) are the following covenants by each director of a corporate trustee of the entity:

(a) to act honestly in all matters concerning the entity;

(b) to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation entity director would exercise in relation to an entity where he or she is a director of the trustee of the entity and that trustee makes investments on behalf of the entity's beneficiaries;

(c)

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to perform the director's duties and exercise the director's powers as director of the corporate trustee in the best financial interests of the beneficiaries;

(d) where there is a conflict between the duties of the director to the beneficiaries, or the interests of the beneficiaries, and the duties of the director to any other person or the interests of the director, the corporate trustee or an associate of the director or corporate trustee:

(i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and

(ii) to ensure that the duties to the beneficiaries are met despite the conflict; and

(iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and

(iv) to comply with the prudential standards in relation to conflicts;

(e) not to enter into any contract, or do anything else, that would:

(i) prevent the director from, or hinder the director in, properly performing or exercising the director's functions and powers as director of the corporate trustee; or

(ii) prevent the corporate trustee from, or hinder the corporate trustee in, properly performing or exercising the corporate trustee's functions and powers as trustee of the entity;

(f) to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52.

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Payments to third parties must be in best financial interests of beneficiaries

52A(2A)

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To avoid doubt, the obligations of the director under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the entity.

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Obligations to beneficiaries override obligations under certain other Acts

52A(3)
The obligations of the director under paragraph (2)(d) override any conflicting obligations the director has under:

(a) Part 2D.1 of the Corporations Act 2001; or

(b)

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View history note

Director not prevented from engaging or authorising persons to act on behalf of the trustee

52A(4)
A covenant referred to in paragraph (2)(e) does not prevent the director from engaging or authorising persons to do acts or things on behalf of the trustee.

Using reasonable care and diligence to ensure compliance by corporate trustee

52A(5)
The reference in paragraph (2)(f) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a superannuation entity director would exercise in the circumstances of the corporate trustee.

Covenants operate as if director party to the governing rules

52A(6)
A covenant referred to in subsection (2) operates as if the director were a party to the governing rules.

Superannuation entity director

52A(7)

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A superannuation entity director is a person whose profession, business or employment is or includes acting as director of a corporate trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity.

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SECTION 52B COVENANTS TO BE INCLUDED IN GOVERNING RULES - SELF MANAGED SUPERANNUATION FUNDS

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Governing rules taken to contain covenants

52B(1)
If the governing rules of a self managed superannuation fund do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.

The covenants

52B(2)
The covenants referred to in subsection (1) are the following covenants by each trustee of the fund:

(a) to act honestly in all matters concerning the fund;

(b) to exercise, in relation to all matters affecting the fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide;

(c)

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to perform the trustee's duties and exercise the trustee's powers in the best financial interests of the beneficiaries;

(d) to keep the money and other assets of the fund separate from any money and assets, respectively:

(i) that are held by the trustee personally; or

(ii) that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the fund;

(e) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee's functions and powers;

(f) to formulate, review regularly and give effect to an investment strategy that has regard to the whole of the circumstances of the fund including, but not limited to, the following:

(i) the risk involved in making, holding and realising, and the likely return from, the fund's investments, having regard to its objectives and its expected cash flow requirements;

(ii) the composition of the fund's investments as a whole including the extent to which the investments are diverse or involve the fund in being exposed to risks from inadequate diversification;

(iii) the liquidity of the fund's investments, having regard to its expected cash flow requirements;

(iv) the ability of the fund to discharge its existing and prospective liabilities;

(g) if there are any reserves of the fund - to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the fund's investment strategy and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due;

(h) to allow a beneficiary of the fund access to any prescribed information or any prescribed documents.

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Payments to third parties must be in best financial interests of beneficiaries

52B(2A)

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To avoid doubt, the obligations of the trustee under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the fund.

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Trustee not prevented from engaging or authorising persons to act on trustee's behalf

52B(3)
A covenant referred to in paragraph (2)(e) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.

Covenant referred to in paragraph (2)(f)

52B(4)
An investment strategy is taken to be in accordance with paragraph (2)(f) even if it provides for a specified beneficiary or a specified class of beneficiaries to give directions to the trustee, where:

(a) the directions relate to the strategy to be followed by the trustee in relation to the investment of a particular asset or assets of the fund; and

(b) the directions are given in circumstances prescribed by regulations made for the purposes of this paragraph.

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SECTION 52C COVENANT RELATING TO DIRECTORS TO BE INCLUDED IN GOVERNING RULES - SELF MANAGED SUPERANNUATION FUNDS

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Governing rules taken to contain covenant

52C(1)
If the governing rules of a self managed superannuation fund of which a trustee is a body corporate do not contain a covenant to the effect of the covenant set out in subsection (2), those governing rules are taken to contain a covenant to that effect.

The covenant

52C(2)
The covenant referred to in subsection (1) is a covenant by each director of a corporate trustee of the fund to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52B.

Reasonable degree of care and diligence

52C(3)
The reference in subsection (2) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a reasonable person in the position of director of the corporate trustee would exercise in the corporate trustee's circumstances.

Covenant operates as if director party to the governing rules

52C(4)
The covenant referred to in subsection (2) operates as if the director were a party to the governing rules.

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SECTION 53 COVENANTS TO REPAY AMOUNTS TO BENEFICIARIES IN APPROVED DEPOSIT FUNDS

53(1) Governing rules to contain 2 covenants.

If the governing rules of an approved deposit fund (other than an excluded approved deposit fund) do not contain covenants to the effect of those set out in subsection (2), they are taken to contain covenants to that effect.

53(2) Content of the covenants.

The covenants are:

(a) that, if:

(i) a beneficiary, by written notice given to the trustee, requests the trustee to pay to the beneficiary an amount equal to the beneficiary's interest in the fund; and

(ii) compliance by the trustee with the request would not be inconsistent with the standards applicable to the fund under section 32;

the trustee will pay that amount within a period (not being more than 12 months) determined by the trustee; and

(b) that each director of the trustee will ensure that the trustee gives effect to the covenant in paragraph (a).

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53(2A) Legal personal representatives of beneficiaries.

A reference in subsection (2) to a beneficiary includes a reference to the legal personal representative of a beneficiary.

Note:

Section 15 sets out additional rules relating to the interpretation of subsection (2).

View history note

53(3) Directors taken to be parties to governing rules.

The covenant in paragraph (2)(b) has effect as if each director were a party to the governing rules.

53(4) Period for payments to beneficiaries.

The trustee is to determine the period within which amounts are to be paid to beneficiaries under the covenant referred to in paragraph (2)(a).

53(5) Variation of payment period.

When the trustee has determined the period under subsection (4), the trustee may make a further determination varying that period if, and only if:

(a) ASIC has consented in writing to the variation; or

(b) the requirements of section 54 have been complied with.

View history note

SECTION 54 PREREQUISITES TO VARIATION OF REPAYMENT PERIOD

54(1) [Requirements for variation of payment period]

The requirements referred to in paragraph 53(5)(b) are as follows:

(a) the question whether the variation should be made has been voted on at a meeting of the beneficiaries;

(b) the trustee convened the meeting by sending by post, to the last-known address of each of the beneficiaries, at least 21 days before the meeting, a notice that set out:

(i) the date, time and place of the meeting; and

(ii) the reason for convening the meeting;

(c) the beneficiaries who, at the meeting, vote (whether in person or by proxy) on the question hold interests equal in value to at least the prescribed percentage of the total value of all the interests in the fund;

(d) the prescribed percentage of the beneficiaries who voted on the question cast their votes in favour of making the variation.

54(2) [Value of an interest]

For the purposes of paragraph (1)(c), the value of an interest is the price at which the trustee would have to make a payment in respect of the interest if the trustee were required to do so, under the covenant referred to in section 53, on the day immediately before the day when the meeting is held.

SECTION 54A REGULATIONS MAY PRESCRIBE OTHER COVENANTS

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54A(1)
The regulations may prescribe a covenant to be included in the governing rules of a superannuation entity and, if the governing rules of such a superannuation entity do not contain a covenant to the effect of the prescribed covenant, those rules are taken to contain a covenant to that effect.

Prescribed covenants may deal with same matters as other requirements

54A(2)
Without limiting the generality of subsection (1), the regulations may prescribe, for the purposes of that subsection, a covenant that elaborates, supplements, or otherwise deals with, any aspect of:

(a) a matter to which a covenant in sections 52 to 53 relates; or

(b) a matter to which a provision of this Act relates.

But prescribed covenants must be capable of operating concurrently with other requirements

54A(3)
However, a covenant prescribed under subsection (1) must be capable of operating concurrently with:

(a) all the covenants referred to in sections 52 to 53; and

(b) this Act.

54A(4)

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The regulations may specify that a covenant prescribed under subsection (1) is to form part of the enhanced trustee obligations, or the enhanced director obligations, for MySuper products or eligible rollover funds.

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SECTION 54B CIVIL AND CRIMINAL CONSEQUENCES FOR CONTRAVENING SECTIONS 52 AND 52A COVENANTS

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Section 52 covenants

54B(1)
A person must not contravene a covenant that:

(a) is to the effect of a covenant set out in section 52; and

(b) is contained, or taken to be contained, in the governing rules of a superannuation entity.

Section 52A covenants

54B(2)
A person must not contravene a covenant that:

(a) is to the effect of a covenant set out in section 52A; and

(b) is contained, or taken to be contained, in the governing rules of a superannuation entity.

Contravention has civil and criminal consequences

54B(3)
Subsections (1) and (2) are civil penalty provisions as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections.

54B(4)
A contravention of subsection (1) or (2) does not result in the invalidity of a transaction.

54B(5)
This section does not limit the operation of section 55.

Note:

A contravention of subsection (1) or (2) may result in an action to recover loss or damage under section 55.

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SECTION 54C OTHER COVENANTS MUST NOT BE CONTRAVENED

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54C(1)
A person must not contravene any other covenant contained, or taken to be contained, in the governing rules of a superannuation entity.

54C(2)
A contravention of subsection (1) is not an offence.

54C(3)
A contravention of subsection (1) does not result in the invalidity of a transaction.

54C(4)
This section does not limit the operation of section 55.

Note:

A contravention of subsection (1) may result in an action to recover loss or damage under section 55.

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SECTION 55 RECOVERING LOSS OR DAMAGE FOR CONTRAVENTION OF COVENANT

55(1)
(Repealed by No 40 of 2019)

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55(2)
(Repealed by No 40 of 2019)

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Breach of covenant may result in action to recover loss or damage

55(3)

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Subject to subsection (4A), a person who suffers loss or damage as a result of conduct of another person that was engaged in in contravention of subsection 54B(1), 54B(2) or 54C(1) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

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55(4)

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Unless an action under subsection (3) is of a kind dealt with in subsections (4A) to (4D), it may be begun at any time within 6 years after the day on which the cause of action arose.

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Leave of court required where directors' covenants contravened

55(4A)

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If:

(a) the person who is alleged to have contravened subsection 54B(2) or 54C(1) is or was a director of a corporate trustee of a registrable superannuation entity; and

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(b) it is alleged that the contravention is of a covenant that is contained, or taken to be contained, in the governing rules of the entity, and is:

(i) a covenant of the kind mentioned in subsection 52A(2); or

(ii) a covenant prescribed under section 54A that relates to the conduct of the director of a corporate trustee of a registrable superannuation entity;

an action under subsection (3) may be brought only with the leave of the court.

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55(4B)

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A person may, within 6 years after the day on which the cause of action arose, seek the leave of the court to bring such an action.

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55(4C)

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In deciding whether to grant an application for leave to bring such an action, the court must take into account whether:

(a) the applicant is acting in good faith; and

(b) there is a serious question to be tried.

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55(4D)

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The court may, in granting leave to bring such an action, specify a period within which the action may be brought.

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Defences in actions to recover loss or damage

55(5)

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It is a defence to an action for loss or damage suffered by a person as a result of the making of an investment by or on behalf of a trustee of a superannuation entity if the defendant establishes that the defendant has complied with all of the covenants referred to in sections 52 to 53 and prescribed under section 54A that apply to the defendant in relation to each act, or failure to act, that resulted in the loss or damage.

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55(6)

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It is a defence to an action for loss or damage suffered by a person as a result of the management of any reserves by a trustee of a superannuation entity if the defendant establishes that the defendant has complied with all of the covenants referred to in sections 52 to 53 and prescribed under section 54A that apply to the defendant in relation to each act, or failure to act, that resulted in the loss or damage.

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55(7)

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Subsections (5) and (6) apply to an action for loss or damage, whether brought under subsection (3) or otherwise.

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SECTION 55A RULES ABOUT CASHING BENEFITS AFTER DEATH OF MEMBERS

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55A(1)
The governing rules of a regulated superannuation fund must not permit a fund member's benefits to be cashed after the member's death otherwise than in accordance with standards prescribed for the purposes of section 31.

55A(2)
If the governing rules of a fund are inconsistent with subsection (1):

(a) subsection (1) prevails; and

(b) the governing rules are invalid, to the extent of the inconsistency.

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SECTION 55B

55B GOVERNING RULES DO NOT PREVENT GIVING EFFECT TO CERTAIN ELECTIONS

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A provision in the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from giving effect to:

(a) an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or

(b) an election made in accordance with section 29SAB (election to transfer assets attributed to a MySuper product if authorisation cancelled); or

(c) a requirement in regulations made for the purposes of subsection 29SAA(3); or

(d) an election made in accordance with section 29SAC (election not to pass costs of paying conflicted remuneration onto MySuper members); or

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(e) an election made in accordance with section 242B (election to transfer amounts held in an eligible rollover fund if authorisation cancelled); or

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(f) an election made in accordance with section 242C (election not to pass costs of paying conflicted remuneration to members of eligible rollover fund).

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SECTION 55C GOVERNING RULES DO NOT PREVENT TRANSFER FROM PRE-MYSUPER DEFAULT OPTION TO MYSUPER PRODUCT

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55C(1)
A provision of the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from attributing an amount to a MySuper product for a member, instead of attributing the amount to a pre-MySuper default option.

55C(2)
A pre-MySuper default option , in relation to an amount attributed to a member of a regulated superannuation fund, is an investment option under which an asset (or assets) of the fund attributed to the member in relation to the amount would be invested, under the governing rules of the fund, if the member gave no direction in relation to the amount.

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SECTION 55D

55D GOVERNING RULES VOID TO THE EXTENT THAT THEY ARE INCONSISTENT WITH OBLIGATIONS IN RELATION TO ANNUAL OUTCOMES ASSESSMENTS AND MYSUPER PRODUCTS

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A provision of the governing rules of a regulated superannuation fund is void to the extent that it is inconsistent with:

(a) a covenant referred to in subsection 52(9), (12) or (13) that is contained, or taken to be contained, in the governing rules of the fund; or

(b) if the trustee of the fund is a body corporate - a covenant referred to in paragraph 52A(2)(f) that is contained, or taken to be contained, in the governing rules of the fund, to the extent that the covenant relates to a covenant referred to in subsection 52(9), (12) or (13).

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SECTION 56 INDEMNIFICATION OF TRUSTEE FROM ASSETS OF ENTITY

56(1)

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Subject to subsections (2) and (2A), a provision in the governing rules of a superannuation entity is void if:

(a)

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it purports to preclude a trustee of the entity from being indemnified out of the assets of the entity in respect of any liability incurred while acting as trustee of the entity; or

(b)

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it limits the amount of such an indemnity.

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56(2)

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A provision in the governing rules of a superannuation entity is void in so far as it would have the effect of exempting a trustee of the entity from, or indemnifying a trustee of the entity against:

(a) liability for breach of trust if the trustee:

(i) fails to act honestly in a matter concerning the entity; or

(ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the trustee was required to exercise; or

(b) liability for an amount of a criminal, civil or administrative penalty incurred by the trustee of the entity in relation to a contravention of a law of the Commonwealth (including this Act); or

(c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or

(d)

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liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act).

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56(2A)

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A provision in the governing rules of a registrable superannuation entity is void in so far as it would have the effect of allowing a trustee of the entity:

(a) to indemnify itself out of the assets of the entity for any amount expended out of capital of the trustee managed and maintained by the trustee to cover the operational risk of the entity; or

(b) to indemnify itself out of any assets of the entity that do not form part of a reserve maintained for the purpose of covering the operational risk relating to the entity, any amount that relates to that risk, without first exhausting the reserve and any other financial resources managed and maintained by the trustee to cover the risk.

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56(3)

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Nothing in the governing rules of a superannuation entity prohibits a trustee of the entity from seeking advice from any person in respect of any matter relating to performance of the duties or the exercise of the powers of a trustee. A provision in the governing rules that purports to preclude a trustee of the entity from being indemnified out of assets of the entity in respect of the cost of obtaining such advice, or to limit the amount of such an indemnity, is void.

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SECTION 57 INDEMNIFICATION OF DIRECTORS OF TRUSTEE FROM ASSETS OF ENTITY

57(1)
Subject to subsection (2), the governing rules of a superannuation entity may provide for a director of the trustee to be indemnified out of the assets of the entity in respect of a liability incurred while acting as a director of the trustee.

57(2)

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A provision of the governing rules of a superannuation entity is void in so far as it would have the effect of indemnifying a director of the trustee against:

(a) a liability that arises because the director:

(i) fails to act honestly in a matter concerning the entity; or

(ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the director is required to exercise; or

(b) liability for an amount of a criminal, civil or administrative penalty incurred by the director in relation to a contravention of a law of the Commonwealth (including this Act); or

(c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or

(d)

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liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act).

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57(3)
A director of the trustee of a superannuation entity may be indemnified out of the assets of the entity in accordance with provisions of the entity's governing rules that comply with this section.

57(4)

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This section has effect despite section 241 of the Corporations Act 2001.

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SECTION 58 TRUSTEE NOT TO BE SUBJECT TO DIRECTION

58(1)

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Subject to subsection (2), the governing rules of a superannuation entity other than a superannuation fund with no more than 6 members or an excluded approved deposit fund must not permit a trustee to be subject, in the exercise of any of the trustee's powers under those rules, to direction by any other person.

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58(2)

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Subsection (1) does not apply to:

(a) a direction given by a court; or

(b) a direction givenby the Regulator; or

(c) a direction given by a beneficiary or a group of beneficiaries that relates to benefits payable to that beneficiary or those beneficiaries, as the case may be; or

(d)

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a direction given by a beneficiary to take up, dispose of or alter the amount invested in an investment option, where:

(i) the entity is a registrable superannuation entity; and

(ii) the direction is given in circumstances prescribed by the regulations for the purposes of this paragraph; or

(da)

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a direction given by a member of a regulated superannuation fund to attribute (or continue to attribute) an amount that is an accrued default amount for the member to a MySuper product or an investment option within a choice product in the fund; or

(e) if the entity is an employer-sponsored fund - a direction given by an employer-sponsor, or an associate of an employer-sponsor, in circumstances prescribed by the regulations; or

(f) (Repealed by No 13 of 2018)

(fa)

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a direction given under the AFCA scheme; or

(g) a direction given by a member (within the meaning of the Superannuation Contributions Tax (members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997) that is permitted to be given by subsection 15(8A) of that Act.

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58(2A)

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To avoid doubt, paragraph (2)(fa) applies in relation to any requirement imposed under the AFCA scheme, whether the requirement is referred to, in Part 7.10A of the Corporations Act 2001 or in a determination under that Part, as a direction or by any other name.

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58(2B)

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Subsection (2A) does not affect the meaning of any paragraph of subsection (2) other than paragraph (2)(fa).

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58(3)
If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.

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SECTION 58A SERVICE PROVIDERS AND INVESTMENTS CANNOT BE LIMITED TO PARTICULAR PERSONS OR ASSOCIATES

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Does not apply to self managed superannuation funds

58A(1)
This section does not apply to a regulated superannuation fund that is a self managed superannuation fund.

Service providers

58A(2)
A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies a person or persons (whether by name or in any other way, directly or indirectly) from whom the trustee, or one or more of the trustees, of the fund may or must acquire a service.

Investments in entities

58A(3)
A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies an entity or entities (whether by name or in any other way, directly or indirectly) in or through which one or more of the assets of the fund may or must be invested.

Financial products

58A(4)
A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies (whether by name or by reference to an entity) a financial product or financial products:

(a) in or through which one or more of the assets of the fund may or must be invested; or

(b) that may or must be purchased using assets of the fund; or

(c) in relation to which one or more assets of the fund may or must be used to make payments.

Exception

58A(5)
Subsections (2), (3) and (4) do not apply if the relevant person, entity or financial product is specified in a law of the Commonwealth or of a State or Territory, or is required to be specified under such a law.

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SECTION 58B SERVICE PROVIDERS AND INVESTMENTS

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58B(1)
This section applies if a trustee, or the trustees, of a regulated superannuation fund does one or more of the following:

(a) acquires a service from an entity;

(b) invests assets of the fund in or through an entity;

(c) invests assets of the fund in or through a financial product;

(d) purchases a financial product using assets of the fund;

(e) uses assets of the fund to make payments in relation to a financial product.

58B(2)
If the trustee, or the trustees, would not breach:

(a) a provision of any of the following:

(i) this or any other Act;

(ii) a legislative instrument made under this or any other Act;

(iii) the prudential standards;

(iv) the operating standards;

(v) the governing rules of the fund; or

(b) any covenant referred to in this Part or prescribed under this Part;

in doing one or more of the things mentioned in subsection (1), the general law relating to conflict of interest does not apply to the extent that it would prohibit the trustee, or the trustees, from doing the thing.

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SECTION 59 EXERCISE OF DISCRETION BY PERSON OTHER THAN TRUSTEE

59(1) [Rules governing exercise of discretion]

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Subject to subsection (1A), the governing rules of a superannuation entity other than a self managed superannuation fund must not permit a discretion under those rules that is exercisable by a person other than a trustee of the entity to be exercised unless:

(a) those rules require the consent of the trustee, or the trustees, of the entity to the exercise of that discretion; or

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(b) if the entity is an employer-sponsored fund:

(i) the exercise of the discretion relates to the contributions that an employer-sponsor will, after the discretion is exercised, be required or permitted to pay to the fund; or

(ii) the exercise of the discretion relates solely to a decision to terminate the fund; or

(iii) the circumstances in which the discretion was exercised are covered by regulations made for the purposes of this subparagraph.

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59(1A) [Binding beneficiary nomination]

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Despite subsection (1), the governing rules of a superannuation entity may, subject to a trustee of the entity complying with any conditions contained in the regulations, permit a member of the entity, by notice given to a trustee of the entity in accordance with the regulations, to require a trustee of the entity to provide any benefits in respect of the member on or after the member's death to a person or persons mentioned in the notice, being the legal personal representative or a dependant or dependants of the member.

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59(2) [Inconsistent rules invalid]

If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.

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SECTION 60 AMENDMENT OF GOVERNING RULES

60(1) [Superannuation entity other than a self managed fund]

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The governing rules of a superannuation entity other than a self managed superannuation fund must not permit those rules to be amended unless:

(a) the trustee, or the trustees, of the entity have consented to the amendment; or

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(b) if the entity is an employer-sponsored fund:

(i) the amendment relates to the contributions that an employer-sponsor will, after the amendment, be required or permitted to pay to the fund; or

(ii) the amendment relates solely to the termination of the fund; or

(iii) the circumstances in which the amendment was made are covered by regulations made for the purposes of this subparagraph; or

(c) the amendment is made solely for the purpose of conferring on the trustee, or the trustees, the power to consent to amendments of those rules.

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View history note

60(2) [Regulated superannuation fund]

The governing rules of a regulated superannuation fund must not permit those rules to be amended in such a way that:

(a) a person other than a constitutional corporation would be eligible to be appointed as trustee unless the rules provide, and will continue to provide after the amendment is made, that the fund has, as its sole or primary purpose, the provision of old-age pensions; or

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(b) the sole or primary purpose of the fund would be a purpose other than the provision of old-age pensions unless the rules provide, and will continue to provide after the amendment is made, that the trustee must be a constitutional corporation.

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60(3) [Inconsistent rules invalid]

If the governing rules of the superannuation entity are inconsistent with subsection (1) or (2), the subsection concerned prevails, and the governing rules are, to the extent of the inconsistency, invalid.

SECTION 60A DISMISSAL OF TRUSTEE OF PUBLIC OFFER ENTITY

60A(1) [Rules governing removal]

Subject to subsection (2), the governing rules of a public offer entity must not permit the trustee to be removed by a person other than APRA.

Note:

Part 17 provides for the removal of trustees by APRA.

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60A(2) [Removal specified in regulations]

Subsection (1) does not apply to a removal of a kind specified in regulations made for the purposes of this subsection.

60A(3) [Inconsistent rules invalid]

If the governing rules of the public offer entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.

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PART 6A - ANNUAL PERFORMANCE ASSESSMENTS ETC.

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SECTION 60B

60B MEANING OF PART 6A PRODUCT

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A Part 6A product is:

(a) a MySuper product; or

(b) a class of beneficial interest in a regulated superannuation fund, if that class is identified by regulations made for the purposes of this paragraph.

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SECTION 60C REGULATOR TO MAKE ANNUAL PERFORMANCE ASSESSMENTS

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60C(1)

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This section applies in relation to each entity that is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members).

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60C(2)
APRA must determine in relation to each financial year, for each Part 6A product offered by the entity, whether the requirement in subsection 60D(1) has been met.

60C(3)
APRA must give the trustee or trustees of the entity a notification of the determination. The notification must include a copy of the determination.

60C(4)
APRA must make the determination and give the notification:

(a) in writing; and

(b) within a period, starting after the end of the financial year, worked out under regulations made for the purposes of this subsection.

60C(5)
APRA must ensure that a description of the contents of every notification it gives under subsection (3) in relation to a financial year is published, within the period mentioned in paragraph (4)(b), on a website maintained by APRA.

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SECTION 60D REQUIREMENTS FOR ASSESSMENT

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Meeting requirements specified in regulations

60D(1)
The requirement in this subsection is met for a Part 6A product in relation to a financial year if:

(a) where the Part 6A product is in a class of Part 6A products specified in regulations made for the purposes of this subsection - the requirements (if any) specified in regulations made for the purposes of this subsection for that class of Part 6A product are met for the Part 6A product in relation to the financial year; or

(b) the Part 6A product is not in a class of Part 6A products specified in regulations made for the purposes of this subsection.

Requirements specified in regulations

60D(2)
Regulations made for the purposes of subsection (1) may specify requirements in respect of:

(a) investment returns; and

(b) any other matter (whether or not related to investment returns).

60D(3)
The investment returns mentioned in paragraph (2)(a) may be investment returns net of fees and/or tax.

60D(4)
Regulations made for the purposes of subsection (1) may do any of the following:

(a) specify requirements that depend on the exercise of a discretion by APRA;

(b) if the regulations specify requirements that depend on the exercise of such a discretion - specify matters that APRA must or may take into account in exercising that discretion;

(c) if the regulations specify requirements that depend on the exercise of such a discretion - allow APRA to make specified assumptions in exercising that discretion.

Comparing actual return and benchmark return

60D(5)
Regulations made for the purposes of subsection (1) may specify requirements based on a comparison of the actual return for a Part 6A product for a period with a benchmark return for the Part 6A product, or a class of Part 6A products, for the period.

Methods for determining return - general

60D(6)
In specifying requirements mentioned in subsection (5), regulations made for the purposes of subsection (1) may:

(a) specify one or more methods for determining the actual return for a Part 6A product, or a class of Part 6A products, for a period; and

(b) specify one or more methods for determining the benchmark return for a Part 6A product, or a class of Part 6A products, for a period.

Methods for determining return - assumptions

60D(7)
In specifying a method or methods mentioned in subsection (6), regulations made for the purposes of subsection (1) may:

(a) specify assumptions to be made in applying that method or methods; and

(b) allow APRA to determine, by legislative instrument, specified alternative assumptions that:

(i) are to be made in applying that method or methods; and

(ii) replace one or more of the assumptions mentioned in paragraph (a); and

(c) require specified conditions to be met before APRA can make such a determination.

60D(8)
The assumptions mentioned in subsection (7) may include assumptions as to any of the following matters:

(a) rates of fees for a period;

(b) rates of taxation for a period;

(c) any other matter (whether or not related to a matter mentioned in paragraphs (a) and (b)).

Methods for determining return - regulations to replace assumptions

60D(9)
Subsections (10) and (11) apply if:

(a) APRA makes a determination mentioned in paragraph (7)(b) that specifies an assumption (the earlier assumption ); and

(b) the earlier assumption is to be made in applying a method or methods in relation to a matter in respect of a period (the relevant period ).

60D(10)
Regulations made for the purposes of subsection (1) may later specify an assumption (the later assumption ) that:

(a) is to be made in applying that method or methods in relation to that matter in respect of the relevant period; and

(b) replaces the earlier assumption.

60D(11)
However, if the regulations mentioned in subsection (10) are made after the end of the relevant period, the later assumption must be the same as the earlier assumption.

Scope of regulations not limited

60D(12)
Subsections (2) to (11) do not limit the scope of regulations that may be made for the purposes of subsection (1).

Incorporation by reference

60D(13)
Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

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SECTION 60E TRUSTEE TO NOTIFY BENEFICIARIES OF FAIL ASSESSMENT

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60E(1)
This section applies if:

(a) APRA gives the trustee or trustees of an entity a notification of a determination under subsection 60C(2); and

(b) the determination is that the requirement in subsection 60D(1) has not been met for a Part 6A product offered by the entity, in relation to a financial year.

60E(2)
Each trustee of the entity must ensure that each beneficiary of the entity who holds the Part 6A product is given notice of the determination in accordance with subsections (3), (5) and (6).

60E(3)
The notice must be given no later than:

(a) 28 days after APRA gave the notification; or

(b) if APRA or ASIC informs the trustee or trustees of the entity of a later day in accordance with subsection (4) - that later day.

60E(4)
For the purposes of paragraph (3)(b), APRA or ASIC may, no later than 28 days after APRA gave the notification, inform the trustee or trustees of the entity in writing of a later day.

60E(5)
The notice must consist of:

(a) unless paragraph (b) applies - both of the following:

(i) a letter sent to the beneficiary by pre-paid post or by courier to the address of the place of residence or business of the beneficiary last known to the trustee;

(ii) an electronic communication (within the meaning of the Corporations Act 2001) sent to the beneficiary to the nominated electronic address (within the meaning of that Act) in relation to the beneficiary; or

(b) if there is no nominated electronic address (within the meaning of that Act) in relation to the beneficiary - a letter sent to the beneficiary by pre-paid post or by courier to the address of the place of residence or business of the beneficiary last known to the trustee.

60E(6)
The notice must:

(a) be in the form specified in regulations made for the purposes of this subsection; and

(b) contain information of a kind specified in regulations made for the purposes of this subsection that relates to:

(i) the ranking of Part 6A products according to relative fee levels, investment returns or any other criterion; or

(ii) any other matter (whether or not related to the matter mentioned in subparagraph (i)).

Note:

Regulations made for the purposes of this subsection may refer to regulations made for the purposes of section 60J, which may specify formulas as a basis for ranking such products.

60E(7)
Regulations made for the purposes of subsection (6) may specify kinds of information by applying, adopting or incorporating any matter contained in an instrument or other writing, as in force or existing from time to time, if the instrument or other writing is published on a website maintained by the Australian Taxation Office.

60E(8)
Regulations made for the purposes of subsection (6) may specify information that is a standard text or standard texts.

60E(9)
Subsection (8) does not limit the scope of regulations that may be made for the purposes of subsection (6).

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SECTION 60F CONSEQUENCES OF 2 CONSECUTIVE FAIL ASSESSMENTS

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Application of section

60F(1)
Subsection (2) applies if both of the following conditions are satisfied:

(a) APRA gives the trustee or trustees of an entity a notification of a determination under subsection 60C(2) that the requirement in subsection 60D(1) has not been met for a Part 6A product offered by the entity, in relation to a financial year;

(b) APRA gives the trustee or trustees of the entity a notification (the second notification ) of another determination under subsection 60C(2) that the requirement in subsection 60D(1) has not been met for that Part 6A product, in relation to the next financial year.

No new beneficiaries for the Part 6A product

60F(2)
Each trustee of the entity must ensure that:

(a) a person who, on the day when the second notification is given, is not a beneficiary of the entity does not become a beneficiary of the entity who holds the Part 6A product; and

(b) a person who, on that day, is a beneficiary of the entity who does not hold the Part 6A product does not start to hold the Part 6A product.

Exemption determination

60F(3)
Subsection (2) does not apply in relation to a Part 6A product offered by an entity if a determination made by APRA under subsection (4) that specifies the Part 6A product and the entity is in force.

60F(4)
APRA may make a determination, in writing, that specifies a Part 6A product offered by a specified entity, if APRA considers that requirements specified in regulations made for the purposes of this subsection have been met in relation to the Part 6A product and the entity.

60F(5)
The determination comes into force on:

(a) the day on which the determination is made; or

(b) a later day specified in the determination.

60F(6)
APRA must give a copy of the determination to the entity as soon as practicable after making it.

60F(7)
A determination under subsection (4) is not a legislative instrument.

60F(8)
To avoid doubt, if APRA makes a determination under subsection (4) in relation to a Part 6A product:

(a) APRA may later give notifications for the purposes of subsection (1) in relation to the Part 6A product in relation to financial years ending after APRA made the determination; and

(b) subsection (3) does not prevent subsection (2) from applying in relation to the Part 6A product as a result of those notifications.

Family law payment splits

60F(9)
Subsection (2) does not apply in relation to:

(a)

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a person becoming a beneficiary of an entity who holds a Part 6A product, if this occurs as a result of a payment split (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975); or

(b) a person starting to hold a Part 6A product, if this occurs as a result of such a payment split.

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Notifications to Fair Work Commission

60F(10)
If:

(a) subsection (2) starts to apply in relation to a Part 6A product that is a MySuper product offered by an entity; or

(b) APRA makes a determination under subsection (4) in relation to a Part 6A product that is a MySuper product offered by an entity;

APRA must notify the Fair Work Commission in writing of that fact.

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SECTION 60G MULTIPLE PART 6A PRODUCTS TREATED AS ONE PART 6A PRODUCT IN CERTAIN CIRCUMSTANCES

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60G(1)
This section applies if regulations made for the purposes of this subsection:

(a) specify one or more kinds of circumstances; and

(b) specify provisions of this Part in relation to each of those kinds of circumstances.

60G(2)
In circumstances of a kind specified in the regulations, for the purposes of provisions of this Part specified in the regulations in relation to that kind of circumstances:

(a) treat 2 or more Part 6A products (the single Part 6A products ) as being one Part 6A product (the combined Part 6A product ); and

(b) treat anything that happened in relation to a single Part 6A product as having happened in relation to the combined Part 6A product; and

(c) treat a person who holds a single Part 6A product as holding the combined Part 6A product.

60G(3)
Subsection (4) applies if a Part 6A product (the replaced product ) ceased to exist because it was incorporated into one or more single Part 6A products (whether or not the entity that offered the replaced product before it ceased to exist is the entity offering the single Part 6A product or any of the single Part 6A products).

60G(4)
For the purposes of paragraph (2)(b), treat anything that happened in relation to the replaced product as having happened in relation to the single Part 6A product.

60G(5)
Regulations made for the purposes of subsection (1) may:

(a) specify different provisions of this Part in relation to different kinds of circumstances; and

(b) in specifying provisions of this Part, specify all the provisions of this Part (apart from this section).

60G(6)
Regulations made for the purposes of subsection (1) may do any of the following:

(a) specify requirements that depend on the exercise of a discretion by APRA;

(b) if the regulations specify requirements that depend on the exercise of such a discretion - specify matters that APRA must or may take into account in exercising that discretion;

(c) if the regulations specify requirements that depend on the exercise of such a discretion - allow APRA to make specified assumptions in exercising that discretion.

60G(7)
Subsections (5) and (6) do not limit the scope of regulations made for the purposes of subsection (1).

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SECTION 60H REQUIREMENTS FOR CONTRIBUTIONS TO BLOCKED FUND NOT ENFORCEABLE

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60H(1)
This section applies if there is a requirement in:

(a) a Commonwealth law or a Territory law; or

(b) a Commonwealth industrial award or a Territory industrial award;

that an employer make contributions to a specified superannuation fund (or to a superannuation fund in a specified class or group of superannuation funds) on behalf of an employee.

60H(2)
This section also applies if there is a requirement in

(a) a State law; or

(b) a State industrial award;

that an employer make contributions to a specified superannuation fund (or to a superannuation fund in a specified class or group of superannuation funds) on behalf of an employee.

60H(3)
The requirement is not enforceable to the extent that the employer cannot make contributions to the superannuation fund (or to any of those superannuation funds) on behalf of the employee because of section 60F (consequences of 2 consecutive fail assessments).

60H(4)
In this section, the following terms have the same meaning as in the Superannuation Guarantee (Administration) Act 1992:

(a) Commonwealth industrial award ;

(b) employee ;

(c) employer ;

(d) State industrial award ;

(e) Territory industrial award .

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SECTION 60J FORMULAS FOR RANKING PRODUCTS

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60J(1)
APRA may give the following, in writing, to the Australian Taxation Office in relation to a period or periods:

(a) a description of one or more methods for ranking Part 6A products;

(b) information relating to all Part 6A products that allows that method or those methods to be used to rank those Part 6A products.

60J(2)
In giving the description mentioned in paragraph (1)(a), APRA may take into account regulations mentioned in subsection (3).

60J(3)
Regulations made for the purposes of this section may:

(a) specify one or more formulas as a basis for ranking Part 6A products, or classes of Part 6A products, according to relative fee levels, investment returns or any other criterion; and

(b) specify one or more methods for ranking Part 6A products according to that formula or those formulas.

60J(4)
As soon as practicable after receiving the information, the Commissioner of Taxation must ensure that the information, to the extent that it relates to Part 6A products that are MySuper products, is made available on a website maintained by the Commissioner of Taxation.

Note:

If the disclosure of information is for the purposes of this Act, subsection 56(3) of the Australian Prudential Regulation Authority Act 1998 provides an exception to the secrecy offence in subsection 56(2) of that Act.

60J(5)
For the purposes of subsection (4), the information may be made available by:

(a) making it available only in response to a query by a particular person; and

(b) making it available in the form of a ranked list or ranked lists of Part 6A products, or classes of Part 6A products.

60J(6)
Subsection (5) does not limit the ways in which the information may be made available for the purposes of subsection (4).

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PART 7 - PROVISIONS APPLYING ONLY TO REGULATED SUPERANNUATION FUNDS

SECTION 61

61 OBJECT OF PART
The object of this Part is to set out special rules which apply only to regulated superannuation funds.

SECTION 62 SOLE PURPOSE TEST

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62(1) [Purposes for which fund is maintained]

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Each trustee of a regulated superannuation fund must ensure that the fund is maintained solely:

(a) for one or more of the following purposes (the core purposes ):

(i) the provision of benefits for each member of the fund on or after the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged (whether the member's retirement occurred before, or occurred after, the member joined the fund);

(ii) the provision of benefits for each member of the fund on or after the member's attainment of an age not less than the age specified in the regulations;

(iii) the provision of benefits for each member of the fund on or after whichever is the earlier of:

(A) the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged; or

(B) the member's attainment of an age not less than the age prescribed for the purposes of subparagraph (ii);

(iv) the provision of benefits in respect of each member of the fund on or after the member's death, if:

(A) the death occurred before the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged; and

(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both;

(v) the provision of benefits in respect of each member of the fund on or after the member's death, if:

(A) the death occurred before the member attained the age prescribed for the purposes of subparagraph (ii); and

(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both; or

(b) for one or more of the core purposes and for one or more of the following purposes (the ancillary purposes ):

(i) the provision of benefits for each member of the fund on or after the termination of the member's employment with an employer who had, or any of whose associates had, at any time, contributed to the fund in relation to the member;

(ii) the provision of benefits for each member of the fund on or after the member's cessation of work, if the work was for gain or reward in any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged and the cessation is on account of ill-health (whether physical or mental);

(iii) the provision of benefits in respect of each member of the fund on or after the member's death, if:

(A) the death occurred after the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged (whether the member's retirement occurred before, or occurred after, the member joined the fund); and

(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both;

(iv) the provision of benefits in respect of each member of the fund on or after the member's death, if:

(A) the death occurred after the member attained the age prescribed for the purposes of subparagraph (a)(ii); and

(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both;

(v) the provision of such other benefits as the Regulator approves in writing.

[ CCH Note: The APRA has issued "Approval of Provision of Benefits No 1 of 2007" under s 62(1)(b)(v), effective 27 November 2007. The Commissioner of Taxation has issued "Approval of Provision of Benefits (No 1) of 2007", under s 62(1)(b)(v), effective 12 December 2007. The "Approval of Provision of Benefits" by the former ISC dated 1 July 1997 has been revoked from 27 November 2007.]

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62(1A) [Same kind of benefits for members not required]

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Subsection (1) does not imply that a trustee of a regulated superannuation fund is required to maintain the fund so that the same kind of benefits will be provided:

(a) to each member of the fund; or

(b) in respect of each member of the fund.

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62(2) [Civil penalty]

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.

62(3) [The Regulator's approval]

An approval given by the Regulator for the purposes of subsection (1) may be expressed to relate to:

(a) a specified fund; or

(b) a specified class of funds.

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SECTION 62A

62A SELF MANAGED SUPERANNUATION FUNDS - INVESTMENT IN COLLECTABLES AND PERSONAL USE ASSETS

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The regulations may prescribe rules in relation to the trustees of regulated superannuation funds that are self managed superannuation funds making, holding and realising investments involving:

(a) artwork (within the meaning of the Income Tax Assessment Act 1997); or

(b) jewellery; or

(c) antiques; or

(d) artefacts; or

(e) coins or medallions; or

(f) postage stamps or first day covers; or

(g) rare folios, manuscripts or books; or

(h) memorabilia; or

(i) wine; or

(j) cars; or

(k) recreational boats; or

(l) memberships of sporting or social clubs; or

(m) assets of a particular kind, if assets of that kind are ordinarily used or kept mainly for personal use or enjoyment (not including land).

Note:

The regulations may prescribe penalties of not more than 10 penalty units for offences against the regulations. See paragraph 353(1)(d).

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SECTION 63 CERTAIN REGULATED SUPERANNUATION FUNDS NOT TO ACCEPT EMPLOYER CONTRIBUTIONS IN CERTAIN CIRCUMSTANCES

63(1) Directions.

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The Regulator may give a trustee of a regulated superannuation fund a written notice directing the trustee, or the trustees, not to accept any contributions made to the fund by an employer-sponsor.

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63(2) Pre-1994-95 directions.

The Commissioner may only give a direction under this section to the trustee of a fund before the fund's 1994-95 year of income (whether in accordance with section 4 of the Acts Interpretation Act 1901 or otherwise) if the direction takes effect at the beginning of that year of income and, at a time during the period:

(a) beginning on the day on which this Act received the Royal Assent; and

(b) ending immediately before the beginning of that year of income;

when:

(c) the fund was in existence; and

(d) there were in force regulations for the purposes of subsection 7(1) of the Occupational Superannuation Standards Act 1987 prescribing standards applicable to the fund;

the fund did not comply with any or all of those standards.

63(3) Post-1993-94 directions.

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The Regulator must not give a direction under this section to a trustee of a fund after the beginning of the fund's 1994-95 year of income unless:

(a) a trustee of the fund has contravened one or more of the regulatory provisions (as defined in section 38A) on one or more occasions after the beginning of that year of income; and

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(b) the Regulator is satisfied that the seriousness or frequency, or both, of the contraventions warrants the giving of the direction.

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63(4) Reasons.

A direction under this section must be accompanied by, or included in the same document as, a statement giving the reasons for the direction.

63(5) Revocation.

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The Regulator may revoke a direction under this section if the Regulator is satisfied that there is, and is likely to continue to be, substantial compliance by each trustee of the fund with the regulatory provisions (as defined in section 38A) applicable to the fund.

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63(6) Contravention of equal representation rules.

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Forthe purposes of subsections (3) and (5), if a fund does not comply with Part 9 (which deals with equal representation), the trustee of the fund is, or the trustees of the fund are, taken to have contravened the applicable provisions of that Part.

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63(7) Offence of contravening direction.

A trustee of a fund must not, without reasonable excuse, contravene a direction under this section.

Penalty: 100 penalty units.

63(7A)

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Subsection (7) 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.

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63(7B) Additional rule for certain funds not complying with equal representation rules.

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An RSE licensee of a fund that is not a public offer superannuation fund must not, while subsection (7D) applies to the fund, accept any contributions made to the fund by an employer-sponsor.

Penalty: 60 penalty units.

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63(7C)

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Subsection (7B) 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.

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63(7D)

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This subsection applies to the fund if:

(a) the fund is failing to comply with subsection 92(4) or 93(4) (whichever is applicable); or

(b) having previously failed to comply, the fund does so comply but the RSE licensee has not given to APRA a notice in the approved form that:

(i) states that the fund so complies; and

(ii) if the RSE licensee is a group of individual trustees and the compliance is as a result of the appointment of one or more other individual trustees to the group - states the appointee's name or the appointees' names; and

(iii) if the RSE licensee is a body corporate and the compliance is as a result of the appointment of one or more directors to the board of directors of the body corporate - states the appointee's name or the appointees' names.

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63(8) Refund of contributions.

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A contravention of subsection (7) or (7B) does not result in the invalidity of a transaction. However, if a contribution is accepted in contravention of either of those subsections, a trustee of the fund concerned must refund the contribution within 28 days or such further period as the Regulator allows.

View history note

63(9) Notification to employer-sponsors.

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If a trustee of a fund is given a direction under this section, each trustee of the fund must ensure that all reasonable steps are taken to notify the direction to each employer-sponsor of the fund.

View history note

63(10) Offence of contravening subsection (8) or (9).

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A person who, without reasonable excuse, contravenes subsection (8) or (9) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

63(10A)

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Subsection (10) 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.

View history note

63(11) Refunded contributions to be ignored for the purposes of income tax and superannuation guarantee charge.

For the purposes of the Income Tax Assessment Act and the Superannuation Guarantee (Administration) Act 1992, if a contribution is refunded under this section, the person who made the contribution is taken never to have made the contribution.

63(12) Superannuation guarantee charge - shortfall component to be treated as employer contribution.

This section has effect as if the payment of a shortfall component to a fund under section 65 of the Superannuation Guarantee (Administration) Act 1992 were a contribution made to the fund by an employer-sponsor.

63(13) OSSA.

A reference in this section to subsection 7(1) of the Occupational Superannuation Standards Act 1987 includes a reference to that subsection as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.

SECTION 64 SUPERANNUATION CONTRIBUTIONS - DEDUCTIONS FROM SALARY OR WAGES TO BE REMITTED PROMPTLY

64(1) Application.

This section applies if:

(a) an employer of an employee is authorised (whether by the employee, by force of law or otherwise) to:

(i) deduct an amount from salary or wages payable by the employer to the employee; and

(ii) pay to a trustee of a regulated superannuation fund the amount of the deduction for the purposes of making provision for superannuation benefits for, or for dependants of, the employee; and

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(b) the employer makes such a deduction.

View history note

64(2) Prompt remission.

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The employer must pay to a trustee of the superannuation fund the amount of the deduction before the end of the 28-day period beginning immediately after the end of the month in which the deduction was made.

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64(2A)

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Subsection (2) does not apply if:

(a) the employer pays to an approved clearing house (within the meaning of the Superannuation Guarantee (Administration) Act 1992) the amount of the deduction before the end of the period mentioned in that subsection; and

(b) the approved clearing house accepts the payment.

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64(3)

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The employer commits an offence if the employer contravenes subsection (2).

Penalty: 100 penalty units.

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64(3A)

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The employer commits an offence if the employer contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

View history note

64(4)
(Repealed by No 75 of 2012)

View history note

64(5) Part-time domestic workers counted.

For the purposes of this section, the Superannuation Guarantee (Administration) Act 1992 has effect as if subsection 11(2) of that Act had not been enacted.

SECTION 64A

64A COMPLIANCE WITH DETERMINATIONS OF THE SUPERANNUATION COMPLAINTS TRIBUNAL
(Repealed by No 13 of 2018)

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SECTION 65 LENDING TO MEMBERS OF REGULATED SUPERANNUATION FUND PROHIBITED

65(1) Prohibition.

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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.

View history note

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.

65(6)
(Repealed by No 134 of 2008)

View history note

65(7) Effect of Part 8.

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Nothing in Part 8 limits the operation of this section.

View history note

SECTION 66 ACQUISITIONS OF CERTAIN ASSETS FROM MEMBERS OF REGULATED SUPERANNUATION FUNDS PROHIBITED
Prohibition

66(1)

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Subject to subsection (2), a trustee or an investment manager of a regulated superannuation fund must not intentionally acquire an asset from a related party of the fund.

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Exception - acquisitions of business real property and listed securities

66(2)

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Subsection (1) does not prohibit a trustee or investment manager acquiring an asset from a related party of the fund if:

(a)

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the asset is a listed security acquired at market value; or

(b)

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if the fund is a superannuation fund with no more than 6 members - the asset is business real property of the related party acquired at market value; or

(c)

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the trustee of a regulated superannuation fund acquired the asset under a merger between regulated superannuation funds; or

(d)

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the asset is an asset of a kind which the Regulator, by legislative instrument, determines may be acquired by:

(i) any fund; or

(ii) a class of funds in which the fund is included.

[ CCH Note 1: For the purposes of paragraph 66(2)(d), Self-managed Superannuation Funds (Assets Acquired on Marriage Breakdown) Determination 2006 has been made, effective 28 December 2002 (see Legislative Instrument F2006L02884). It was repealed by Self-managed Superannuation Funds (Assets Acquired on Marriage Breakdown) Repeal Determination 2011, effective 17 November 2010 (see Legislative Instrument F2011L02122). Self-managed Superannuation Funds (Assets Acquired on Marriage Breakdown) Determination 2006 formerly read:

1. Name of Determination
1
This determination is the Self-managed Superannuation Funds (Assets Acquired on Marriage Breakdown) Determination 2006.
2. Commencement
2
This determination is taken to have commenced on 28 December 2002.
3. Application
3
This determination applies to the trustee of a self-managed superannuation fund that acquires an asset on or after 28 December 2002 in the circumstances set out in the determination at clause 4.
4. Determination
4
Subsection 66(1) of the Superannuation Industry (Supervision) Act 1993 does not prohibit a trustee of a self-managed superannuation fund (the acquiring fund) from acquiring an asset from a related party of the fund if:

(a) the asset is acquired for the benefit of a particular member of the acquiring fund by way of a transfer or roll over from the trustee of another regulated superannuation fund (the transferring fund); and

(b) the asset represents the whole, or part, of either:

(i) that member's own interests in the transferring fund; or

(ii) that member's entitlements as determined under Part VIIIB of the Family Law Act 1975 in relation to another person's interests in the transferring fund where that other person is the member's spouse, or former spouse, and

(c) the transfer or roll over occurs as a result of that member's marriage breakdown.
5. Definitions
5
The terms used in this determination have the same meaning as used in the Superannuation Industry (Supervision) Act 1993 (SIS Act). They include the following definitions from subsection 10(1) of the SIS Act:
'asset'
means any form of property and, to avoid doubt, includes money (whether Australian currency or currency of another country);

'member'
has a meaning affected by section 15B of the SIS Act;

'Part 8 associate'
has the same meaning given by Subdivision B of Division 1 of Part 8;

'related party'
, of a superannuation fund, means any of the following:

(a) a member of a the fund;

(b) a standard employer-sponsor of the fund;

(c) a Part 8 associate of an entity referred to in paragraph (a) or (b);

'self-managed superannuation fund'
has the meaning given by section 17A of the SIS Act.

In section 66 of the SIS Act ' acquire an asset ' does not include accept money - subsection 66(5) of the SIS Act.

]

[ CCH Note 2: For the purposes of paragraph 66(2)(d) Superannuation Industry (Supervision) (related party assets) determination No 1 of 2010 has been made, effective 23 July 2010 (see Legislative Instrument F2010L02134).]

View history note

Exception - certain in-house assets

66(2A)

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Subsection (1) does not prohibit the acquisition of an asset by a trustee or investment manager of a superannuation fund from a related party of the fund if:

(a) the acquisition of the asset constitutes an investment that:

(i) is an in-house asset of the fund within the meaning of subsection 71(1); or

(ii) would be an in-house asset of the fund within the meaning of subsection 71(1) apart from the operation of Subdivision D of Part 8; or

(iii) is a life insurance policy issued by a life insurance company (other than a policy acquired from a member of the fund or from a relative of a member); or

(iv) is referred to in paragraph 71(1)(b), (ba), (c), (d), (e), (f), (h) or (j); and

(b) the asset is acquired at market value; and

(c) the acquisition of the asset would not result in the level of in-house assets of the superannuation fund exceeding the level permitted by Part 8.

View history note

Exception - breakdown of relationships

66(2B)

View history reference

Subsection (1) does not prohibit a trustee or investment manager acquiring an asset from a related party of the fund (the acquiring fund ) if:

(a) the asset is acquired:

(i) for the benefit of a particular member of the acquiring fund; and

(ii) from a trustee or investment manager of another regulated superannuation fund (the transferring fund ); and

(b) at the time of the acquisition:

(i) the member and his or her spouse or former spouse are separated; and

(ii) there is no reasonable likelihood of cohabitation being resumed; and

(c) the acquisition occurs because of reasons directly connected with the breakdown of the relationship between the spouses or former spouses; and

(d)

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the asset represents the whole, or a part, of either:

(i) the member's own interests in the transferring fund; or

(ii) the member's entitlements as determined under Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interests of the member's spouse, or former spouse, in the transferring fund.

View history note

66(2C)

View history reference

For the purposes of subsection (2B), the question whether the spouses, or former spouses, have separated is to be determined in the same way as it is for the purposes of section 48 of the Family Law Act 1975 (as affected by sections 49 and 50 of that Act).

View history note

Prohibition of avoidance schemes

66(3)
A person must not enter into, commence to carry out, or carry out a scheme if the person entered into, commenced to carry out, or carried out the scheme or any part of the scheme with the intention that:

(a)

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the scheme would result, or be likely to result, in the acquisition of an asset by a trustee or an investment manager of a regulated superannuation fund, where the asset is acquired from a person who has a connection (either direct or indirect through one or more interposed companies, partnerships or trusts) with a related party of the fund; and

(b) that acquisition would avoid the application of subsection (1) to the fund.

View history note

Offence

66(4)

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A person who contravenes subsection (1) or (3) commits an offence punishable on conviction by imprisonment for a term not exceeding 1 year.

Definitions

66(5)

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In this section:

"acceptable percentage"
(Repealed by No 199 of 1999)

View history note

acquire an asset
does not include accept money.

business
includes any profession, trade, employment, vocation or calling carried on for the purposes of profit, including:

(a) the carrying on of primary production; and

(b) the provision of professional services;

but does not include occupation as an employee.

business real property
, in relation to an entity, means:

(a) any freehold or leasehold interest of the entity in real property; or

(b) any interest of the entity in Crown land, other than a leasehold interest, being an interest that is capable of assignment or transfer; or

(c) if another class of interest in relation to real property is prescribed by the regulations for the purposes of this paragraph - any interest belonging to that class that is held by the entity;

where the real property is used wholly and exclusively in one or more businesses (whether carried on by the entity or not), but does not include any interest held in the capacity of beneficiary of a trust estate.

View history note

close associate
(Repealed by No 199 of 1999)

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"direct control interest"
(Repealed by No 199 of 1999)

View history note

"exempt business real property"
(Repealed by No 199 of 1999)

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listed security
means a security listed for quotation in the official list of any of the following:

(a) a licensed market within the meaning of the Corporations Act 2001; or

(b) an approved stock exchange within the meaning of the Income Tax Assessment Act 1997; or

(c) a market exempted under section 791C of the Corporations Act 2001.

View history note

primary production business
has the same meaning as in the Income Tax Assessment Act 1997.

View history note

"relative"
(Repealed by No 199 of 1999)

scheme
means:

(a) any agreement, arrangement, understanding, promise or undertaking:

(i) whether express or implied; or

(ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; and

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

Real property used in primary production business

66(6)

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For the purposes of the definition of business real property in subsection (5), real property used in one or more primary production businesses does not cease to be used wholly and exclusively in that business or those businesses only because:

(a) an area of the real property, not exceeding 2 hectares, contains a dwelling used primarily for domestic or private purposes; and

(b) the area is also used primarily for domestic or private purposes;

provided that the use for domestic or private purposes referred to in paragraphs (a) and (b) is not the predominant use of the real property.

View history note

66(7)
(Repealed by No 199 of 1999)

View history note

66(8)
(Repealed by No 199 of 1999)

View history note

SECTION 67 BORROWING

67(1) Prohibition.

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Subject to this section and section 67A, a trustee of a regulated superannuation fund must not:

(a) borrow money; or

(b) maintain an existing borrowing of money.

Note 1:

Section 67A contains an exception for certain limited recourse borrowing arrangements.

Note 2:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

View history note

67(2) Exception - temporary borrowing to pay beneficiary.

View history reference

Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if:

(a) the purpose of the borrowing is to enable the trustee to make a payment to a beneficiary which the trustee is required to make by law or by the governing rules and which, apart from the borrowing, the trustee would not be able to make; and

(b) the period of the borrowing does not exceed 90 days; and

(c) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund.

View history note

67(2A) [Exception - superannuation surcharge]

View history reference

Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if:

(a) the purpose of the borrowing is to enable the trustee to make a payment of surcharge or advance instalment which the trustee is required to make under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 and which, apart from the borrowing, the trustee would not be able to make; and

(b) the period of the borrowing does not exceed 90 days; and

(c) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund.

View history note

67(3) Exception - temporary borrowing to cover settlement of securities transactions.

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Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if:

(a) the purpose of the borrowing is to enable the trustee to cover settlement of a transaction for the acquisition of any of the following:

(i) bonds, debentures, stock, bills of exchange or other securities;

(ii) shares in a company;

(iii) units in a unit trust;

(iv) futures contracts;

(v) forward contracts;

(vi) interest rates swap contracts;

(vii) currency swap contracts;

(viii) forward exchange rate contracts;

(ix) forward interest rate contracts;

(x) a right or option in respect of such a security, share, unit, contract or policy;

(xi) any similar financial instrument;

(xii) foreign currency; and

(b) both:

(i) at the time the relevant investment decision was made, it was likely that the borrowing would not be needed; and

(ii) the borrowing is not taken, under a determination made, by legislative instrument, by the Regulator, to be exempt from this paragraph; and

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(c) the period of the borrowing does not exceed 7 days; and

(d) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund.

View history note

67(4)
(Repealed by No 154 of 2007)

View history note

67(4A)
(Repealed by No 100 of 2010)

View history note

67(5) Exception - private sector funds.

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Subsection (1) does not prohibit a trustee of a private sector fund from maintaining an existing borrowing of money if:

(a) the trustee had, at a time before 12 June 1986, borrowed the money in circumstances that did notcomply with the standard set out in paragraph 16(1)(b) of the Occupational Superannuation Standards Regulations; and

(b) the maintenance occurs before whichever is the earliest of the following:

(i) the day on which the trustee made such arrangements as were necessary to comply with that standard;

(ii) the day on which the trustee makes such arrangements as are necessary to comply with subsection (1);

(iii) 1 July 1995.

View history note

67(6) Exception - public sector funds.

Subsection (1) does not prohibit the trustee of a public sector fund from maintaining an existing borrowing of money if:

(a) the trustee had, at a time before 2 July 1990, borrowed the money in circumstances that did not comply with the standard set out in paragraph 16(1)(b) of the Occupational Superannuation Standards Regulations; and

(b) the maintenance occurs before whichever is the earliest of the following:

(i) the day on which the trustee made such arrangements as were necessary to comply with that standard;

(ii) the day on which the trustee makes such arrangements as are necessary to comply with subsection (1);

(iii) 1 July 2000.

67(7) Civil penalty provision.

SECTION 67A LIMITED RECOURSE BORROWING ARRANGEMENTS

View history reference

Exception

67A(1)
Subsection 67(1) does not prohibit a trustee of a regulated superannuation fund (the RSF trustee ) from borrowing money, or maintaining a borrowing of money, under an arrangement under which:

(a) the money is or has been applied for the acquisition of a single acquirable asset, including:

(i) expenses incurred in connection with the borrowing or acquisition, or in maintaining or repairing the acquirable asset (but not expenses incurred in improving the acquirable asset); and

Example: Conveyancing fees, stamp duty, brokerage or loan establishment costs.

(ii) money applied to refinance a borrowing (including any accrued interest on a borrowing) to which this subsection applied (including because of section 67B) in relation to the single acquirable asset (and no other acquirable asset); and

(b) the acquirable asset is held on trust so that the RSF trustee acquires a beneficial interest in the acquirable asset; and

(c) the RSF trustee has a right to acquire legal ownership of the acquirable asset by making one or more payments after acquiring the beneficial interest; and

(d) the rights of the lender or any other person against the RSF trustee for, in connection with, or as a result of, (whether directly or indirectly) default on:

(i) the borrowing; or

(ii) the sum of the borrowing and charges related to the borrowing;

are limited to rights relating to the acquirable asset; and

Example: Any right of a person to be indemnified by the RSF trustee because of a personal guarantee given by that person in favour of the lender is limited to rights relating to the acquirable asset.

(e) if, under the arrangement, the RSF trustee has a right relating to the acquirable asset (other than a right described in paragraph (c)) - the rights of the lender or any other person against the RSF trustee for, in connection with, or as a result of, (whether directly or indirectly) the RSF trustee's exercise of the RSF trustee's right are limited to rights relating to the acquirable asset; and

(f) the acquirable asset is not subject to any charge (including a mortgage, lien or other encumbrance) except as provided for in paragraph (d) or (e).

Meaning of acquirable asset

67A(2)
An asset is an acquirable asset if:

(a) the asset is not money (whether Australian currency or currency of another country); and

(b) neither this Act nor any other law prohibits the RSF trustee from acquiring the asset.

67A(3)
This section and section 67B apply to a collection of assets in the same way as they apply to a single asset, if:

(a) the assets in the collection have the same market value as each other; and

(b) the assets in the collection are identical to each other.

Example: A collection of shares of the same class in a single company.

67A(4)
For the purposes of this section and section 67B, the regulations may provide that, in prescribed circumstances, an acquirable asset ceases to be that particular acquirable asset.

RSF trustee

67A(5)
Paragraphs (1)(d) and (e) do not apply to a right of:

(a) a member of the regulated superannuation fund; or

(b) another trustee of the regulated superannuation fund;

to damages against the RSF trustee for a breach by the RSF trustee of any of the RSF trustee's duties as trustee.

67A(6)
A reference in paragraph (1)(d) or (e) (but not in subsection (5)) to a right of any person against the RSF trustee includes a reference to a right of a person who is the RSF trustee, if the person holds the right in another capacity.

View history note

SECTION 67B LIMITED RECOURSE BORROWING ARRANGEMENTS - REPLACEMENT ASSETS

View history reference

67B(1)
Subsection (2) applies to:

(a) a reference in paragraph 67A(1)(b), (c), (d), (e) or (f) to an acquirable asset (the original asset ); or

(b) a reference in subsection 71(8) to an acquirable asset (the original asset ) mentioned in paragraph 67A(1)(b);

(including a reference resulting from a previous application of subsection (2) of this section).

67B(2)
Treat the reference as being a reference to another single acquirable asset (the replacement asset ) if:

(a) the replacement asset replaces the original asset; and

(b) subsection (3), (4), (5), (6), (7) or (8) applies.

67B(3)
This subsection applies if:

(a) the original asset consists of:

(i) a share in a company, or a collection of shares in a company; or

(ii) a unit in a unit trust, or a collection of units in a unit trust; and

(b) the replacement asset consists of:

(i) a share in that company, or a collection of shares in that company; or

(ii) a unit in that unit trust, or a collection of units in that unit trust; and

(c) at the time the replacement occurs, the original asset and the replacement asset have the same market value.

67B(4)
This subsection applies if:

(a) the original asset consists of an instalment receipt that confers a beneficial interest in:

(i) a share in a company; or

(ii) a collection of shares in a company; and

(b) the replacement asset consists of that share or collection.

67B(5)
This subsection applies if:

(a) the original asset consists of:

(i) a share in a company, or a collection of shares in a company; or

(ii) a unit in a unit trust, or a collection of units in a unit trust; and

(b) the replacement asset consists of:

(i) a share in another company, or a collection of shares in another company; or

(ii) a unit in another unit trust, or a collection of units in another unit trust; and

(c) the replacement occurs as a result of a takeover, merger, demerger or restructure of the company or unit trust mentioned in paragraph (a).

67B(6)
This subsection applies if:

(a) the original asset consists of a share in a company, or a collection of shares in a company; and

(b) the replacement asset consists of a stapled security, or a collection of stapled securities; and

(c) each of those stapled securities consists of a single share, or a single collection of shares of the same class, stapled together with a single unit, or a single collection of units of the same class, in a unit trust; and

(d) the replacement occurs under a scheme of arrangement of the company.

67B(7)
This subsection applies if:

(a) the original asset consists of a unit in a unit trust, or a collection of units in a unit trust; and

(b) the replacement asset consists of a unit in that unit trust, or a collection of units in that unit trust; and

(c) the replacement occurs as a result of an exercise of a discretion granted under the trust deed of that unit trust to the trustee of that unit trust.

67B(8)
This subsection applies in the circumstances (if any) prescribed by the regulations for the purposes of this subsection.

View history note

SECTION 68 VICTIMISATION OF TRUSTEES ETC.

68(1) Prohibition.

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A person must not commit an act of victimisation against:

(a) a trustee of an employer-sponsored fund; or

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(b) a responsible officer of a corporate trustee of an employer-sponsored fund.

Penalty: Imprisonment for 2 years.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

68(2) Act of victimisation against trustee.

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For the purposes of this section, a person is taken to commit an act of victimisation against a trustee of an employer-sponsored fund if, and only if, the person subjects, or threatens to subject, the trustee to a detriment on the grounds that:

(a) the trustee has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee; or

(b) the trustee has exercised, is exercising, or is proposing to exercise, the trustee's powers in a particular way.

View history note

68(3) Act of victimisation against officer of corporate trustee.

For the purposes of this section, a person is taken to commit an act of victimisation against a responsible officer of a corporate trustee of an employer-sponsored fund if, and only if, the person subjects, or threatens to subject, the responsible officer to a detriment on the grounds that:

(a) the trustee or officer has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee or officer; or

(b) the trustee or officer has exercised, is exercising, or is proposing to exercise, any of the trustee's powers or the officer's powers, as the case may be, in a particular way.

68(4) Employers.

For the purposes of this section, an employer is taken to subject an employee to a detriment if the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee's prejudice.

However, for the purposes of this section, an employer is taken not to subject an employee to a detriment if the employer:

(a) permanently ceases to be an employer-sponsor of a superannuation fund of which the employee is a member; or

(b) temporarily ceases to contribute to a superannuation fund in respect of a class of members in which the employee is included; or

(c) reduces the level of contributions to a superannuation fund in respect of a class of members in which the employee is included.

68(5) Reasons.

In civil proceedings arising out of this section:

(a) it is not necessary for the plaintiff to prove the defendant's reason for the alleged action; and

(b) it is a defence if the defendant proves that the action was not motivated (whether in whole or in part) by the alleged reason.

68(6) Obligations.

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A reference in this section to an obligation imposed on a trustee or a responsible officer is a reference to an obligation imposed on the trustee or officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise.

View history note

68(7) Powers.

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A reference in this section to the powers of a trustee or a responsible officer is a reference to the powers conferred on the trustee or the officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise.

View history note

68(8) Civil liability.

If:

(a) a person (the defendant ) commits an act of victimisation against:

(i) a trustee of an employer-sponsored fund; or

(ii) a responsible officer of a corporate trustee of an employer-sponsored fund; and

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(b) the trustee or officer suffers loss or damage because of the act of victimisation;

the trustee or officer may recover the amount of the loss or damage by action against the defendant.

View history note

68(9) Special meaning of employee and employer .

The meaning of the expressions employee and employer , when used in this section, is to be determined as if subsections 12(3) and (8) of the Superannuation Guarantee (Administration) Act 1992 had not been enacted. (Those subsections deem certain contractors to be employees.)

SECTION 68AAA BENEFITS PROVIDED BY TAKING OUT INSURANCE - INACTIVE ACCOUNTS

View history reference

68AAA(1)
Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:

(a) the member's account is inactive in relation to that product for a continuous period of 16 months; and

(b) the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months.

Note:

This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD).

View history note

68AAA(2)
Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months.

68AAA(2A)

View history reference

A member's election:

(a) that:

(i) is given under subsection (2); or

(ii) because of a previous application of this subsection, is taken to have been given under subsection (2);

to the trustee of a regulated superannuation fund (the original fund ); and

(b) that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the successor fund );

continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if:

(c) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and

(d) before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member.

View history note

68AAA(3)
For the purposes of this section, a member of a regulated superannuation fund has an account that is inactive in relation to a choice product or MySuper product for a period if the trustee, or trustees of the fund, have not received an amount in respect of the member that relates to that product during that period.

68AAA(4)
The prohibition in subsection (1) ceases to apply to benefits provided to, or in respect of, a member of the fund under a choice product or MySuper product held by the member if the trustee, or trustees of the fund, receive an amount in respect of the member that relates to that product after the account has been inactive in relation to the product for 16 months.

68AAA(5)
However, the prohibition in subsection (1) applies again if the member's account is again inactive in relation to the product for a period of 16 months.

68AAA(6)
This section does not apply to:

(a) a defined benefit member; or

(b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:

(i) a member of the Permanent Forces (within the meaning of that Act); or

(ii) a continuous full-time Reservist (within the meaning of that Act); or

(c) a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992, a chosen fund for contributions for the person's superannuation by the Commonwealth; or

(d) a member to whom the employer-sponsor contribution exception applies (see section 68AAE).

View history note

68AAA(7)
Nothing in this section affects a right of a member of a regulated superannuation fund if:

(a) the right relates to insurance cover; and

(b) in compliance with this section, an insurance premium in relation to the member for that insurance cover ceases to be paid; and

(c) the right exists because of insurance premiums paid in relation to the member before insurance premiums cease to be paid as mentioned in paragraph (b).

68AAA(8)
Nothing in this section affects a right of a member of a regulated superannuation fund if:

(a) the right is a right to insurance cover for a fixed term, subject only to the payment of insurance premiums; and

(b) that fixed term begins before the time at which a trustee of the fund is required under subsection (1) to ensure that a benefit is not provided to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance.

View history note

SECTION 68AAB BENEFITS PROVIDED BY TAKING OUT INSURANCE - LOW-BALANCE ACCOUNTS

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68AAB(1)
Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:

(a) the member has an account balance with the fund that relates to the product that is less than $6,000; and

(b) on or after 1 November 2019, the member has not had an account balance with the fund that relates to the product that was equal to or greater than $6,000; and

(c) the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member has an account balance with the fund that relates to the product that is less than $6,000.

Note:

This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD).

View history note

68AAB(2)
Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member has an account balance with the fund that relates to the product that is less than $6,000.

68AAB(3)
The member is taken to have made an election under subsection (2) if the member makes an election under subsection 68AAC(2).

68AAB(3A)

View history reference

A member's election:

(a) that:

(i) is given under subsection (2); or

(ii) because of a previous application of this subsection, is taken to have been given under subsection (2);

to the trustee of a regulated superannuation fund (the original fund ); and

(b) that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the successor fund );

continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if:

(c) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and

(d) before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member.

View history note

68AAB(3B)

View history reference

Subsection (3C) applies if:

(a) the benefits of a member of a regulated superannuation fund (the original fund ) are transferred from the original fund to another regulated superannuation fund (the successor fund ); and

(b) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits.

View history note

68AAB(3C)

View history reference

Subsection (1) does not apply in relation to the successor fund providing a benefit to, or in respect of, the member if, immediately before the transfer:

(a) the original fund provided a benefit to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance; and

(b) subsection (1):

(i) did not apply in relation to the original fund providing that benefit to, or in respect of, the member; but

(ii) would have applied if paragraphs (1)(a) and (b) were disregarded.

View history note

68AAB(4)
This section does not apply to:

(a) a defined benefit member; or

(b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:

(i) a member of the Permanent Forces (within the meaning of that Act); or

(ii) a continuous full-time Reservist (within the meaning of that Act); or

(d) a member to whom the employer-sponsor contribution exception applies (see section 68AAE); or

(e) a member to whom the dangerous occupation exception applies (see section 68AAF).

View history note

68AAB(5)
Nothing in this section affects a right of a member of a regulated superannuation fund if:

(a) the right relates to insurance cover; and

(b) in compliance with this section, an insurance premium in relation to the member for that insurance cover ceases to be paid; and

(c) the right exists because of insurance premiums paid in relation to the member before insurance premiums cease to be paid as mentioned in paragraph (b).

68AAB(6)
Nothing in this section affects a right of a member of a regulated superannuation fund if:

(a) the right is a right to insurance cover for a fixed term, subject only to the payment of insurance premiums; and

View history note

SECTION 68AAC BENEFITS PROVIDED BY TAKING OUT INSURANCE - MEMBERS UNDER 25 YEARS OLD

View history reference

68AAC(1)
Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:

(a) the member is under the age of 25 years; and

Note:

This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD).

View history note

68AAC(2)
Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund and who is under the age of 25 years may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member is under the age of 25 years.

68AAC(3)
The member is taken to have made an election under subsection (2) if the member makes an election under subsection 68AAB(2).

68AAC(3A)

View history reference

A member's election:

(a) that:

(i) is given under subsection (2); or

(ii) because of a previous application of this subsection, is taken to have been given under subsection (2);

to the trustee of a regulated superannuation fund (the original fund ); and

(b) that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the successor fund );

continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if:

(c) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and

(d) before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member.

View history note

68AAC(3B)

View history reference

Subsection (3C) applies if:

(b) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits.

View history note

68AAC(3C)

View history reference

Subsection (1) does not apply in relation to the successor fund providing a benefit to, or in respect of, the member if, immediately before the transfer:

(a) the original fund provided a benefit to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance; and

(b) subsection (1):

(i) did not apply in relation to the original fund providing that benefit to, or in respect of, the member; but

(ii) would have applied if paragraph (1)(a) were disregarded.

View history note

68AAC(4)
This section does not apply to:

(a) a defined benefit member; or

(b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:

(i) a member of the Permanent Forces (within the meaning of that Act); or

(ii) a continuous full-time Reservist (within the meaning of that Act); or

(d) a member to whom the employer-sponsor contribution exception applies (see section 68AAE); or

(e) a member to whom the dangerous occupation exception applies (see section 68AAF).

View history note

SECTION 68AAD

68AAD SECTIONS 68AAA, 68AAB AND 68AAC DO NOT APPLY TO FUNDS WITH NO MORE THAN 6 MEMBERS

View history reference

Sections 68AAA, 68AAB and 68AAC do not apply in relation to regulated superannuation funds with no more than 6 members.

View history note

SECTION 68AAE EMPLOYER-SPONSOR CONTRIBUTION EXCEPTION

68AAE(1)
The employer-sponsor contribution exception applies for a quarter to a member of regulated superannuation fund to, or in respect of, whom a benefit is provided by the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:

(a) an employer-sponsor notifies the trustee of the fund in writing that the employer-sponsor will pay insurance fees relating to the benefit for the member; and

(b) the member is:

(i) an employee of the employer-sponsor, or an associate of the employer-sponsor; or

(ii) the relative or dependant of such an employee; and

(c) the quarter ends after the employer-sponsor notifies the trustee under paragraph (a); and

(d) the amount the employer-sponsor contributes to the fund for the quarter exceeds the amount that the employer-sponsor would need to contribute to avoid an individual superannuation guarantee shortfall for the member for the quarter; and

(e) that excess is equal to or greater than the insurance fees relating to the benefit for the quarter.

68AAE(2)
In this section:

quarter
means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.

View history note

SECTION 68AAF DANGEROUS OCCUPATION EXCEPTION

View history reference

68AAF(1)
The dangerous occupation exception applies to a member of a regulated superannuation fund to, or in respect of, whom a benefit is provided by the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:

(a) the trustee or trustees of the fund make an election under this section that members holding that product will be covered by a dangerous occupation exception if they are employed in an occupation specified in the election; and

(b) the election is in force; and

(c) the member is employed in an occupation specified in the election; and

(d) it is reasonable to expect that some or all of the contributions paid into the product will be paid in respect of that employment.

68AAF(2)
The trustee, or trustees, of a regulated superannuation fund may elect that members holding a choice product or MySuper product specified in the election are covered by a dangerous occupation exception if they are employed in an occupation specified in the election and either:

(a) a Fellow of the Institute of Actuaries of Australia has certified that:

(i) based on rates of death, or death and total and permanent disability; and

(ii) using information from the most recent 5 years in relation to Australian occupations;

the occupation is in the riskiest quintile of Australian occupations; or

(b) the occupation is asan emergency services worker (as defined for the purposes of the Work Health and Safety Act 2011).

68AAF(3)
The election must be made in writing.

68AAF(4)
The election is in force during the period:

(a) beginning on the day on which a copy of the election is given to APRA; and

(b) ending on the day on which the trustee, or the trustees, of the fund give APRA notice in writing that the election is withdrawn.

68AAF(5)
As soon as practicable after the election is made, a copy of the election must be:

(a) published on the trustee's, or each trustee's, website; and

(b) given to APRA.

68AAF(6)
Within 28 days of the dangerous occupation exception applying to a member of the fund, the trustee or trustees must give the member:

(a) a notice in writing stating that the trustee or trustees have elected to treat the member's occupation as a dangerous occupation, and are providing the benefit under the choice product or MySuper product by taking out or maintaining insurance; and

(b) details of the annual cost to the member of providing the benefit under the choice product or MySuper product by taking out or maintaining insurance; and

(c) details of how the member may elect to have the benefit cease.

68AAF(7)
To avoid doubt, nothing in this section affects the obligations of a trustee under the covenants referred to in section 52, or of a director of a corporate trustee under the covenants referred to in section 52A.

Note:

For example, under paragraph 52(7)(c) each trustee is subject to a covenant to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries.

View history note

SECTION 68AA BENEFITS FOR PERMANENT INCAPACITY AND DEATH - MYSUPER MEMBERS

View history reference

Requirement to provide permanent incapacity benefit and death benefit by taking out insurance

68AA(1)
Each trustee of a regulated superannuation fund must ensure the following:

(a) that the fund provides permanent incapacity benefit to each MySuper member of the fund;

(b) that the fund provides death benefit in respect of each MySuper member of the fund;

(c) that the benefits referred to in paragraphs (a) and (b) are provided by taking out insurance.

Note:

A failure to comply with subsection (1) is a breach of a condition of the RSE licence (see paragraph 29E(1)(a)).

68AA(2)
The trustees of a regulated superannuation fund are not required to provide permanent incapacity benefit or death benefit if the conditions determined under subsection (3) in relation to the benefit are not met.

68AA(3)
The trustees of a regulated superannuation fund may determine reasonable conditions to which the provision of:

(a) permanent incapacity benefit; or

(b) death benefit;

is subject.

68AA(4)
Without limiting subsection (3), conditions determined under subsection (3) in relation to a benefit are reasonable if they are the same as the terms and conditions of the policy of insurance taken out to provide the benefit.

Requirement to allow MySuper members to elect not to receive permanent incapacity benefit or death benefit

68AA(5)
Each trustee of a regulated superannuation fund must ensure that each MySuper member of the fund may elect either or both of the following:

(a) that permanent incapacity benefit will not be provided to the member by the fund;

(b) that death benefit will not be provided in respect of the member by the fund.

Note:

A failure to comply with subsection (5) is a breach of a condition of the RSE licence (see paragraph 29E(1)(a)).

68AA(6)
The trustees of a regulated superannuation fund may require that MySuper members who wish to make an election in accordance with subsection (5):

(a) must make the election in relation to both permanent incapacity benefit and death benefit; or

(b) must make the election in relation to death benefit if they make the election in relation to permanent incapacity benefit.

68AA(7)
Subsection (5) does not apply to a MySuper member of a regulated superannuation fund if the circumstances prescribed by the regulations for the purposes of this subsection are met.

68AA(8)
If a MySuper member of a regulated superannuation fund makes an election in accordance with subsection (5) in relation to a benefit, subsection (1) does not apply in relation to the member and the benefit.

Inactive accounts, low-balance accounts and members under the age of 25 years

68AA(8A)

View history reference

This section does not require the provision of death benefit in respect of a MySuper member of a regulated superannuation fund, if death benefit is not to be provided in respect of the MySuper member by taking out or maintaining insurance because of section 68AAA, 68AAB or 68AAC.

View history note

68AA(8B)

View history reference

This section does not require the provision of permanent incapacity benefit to a MySuper member of a regulated superannuation fund, if permanent incapacity benefit is not to be provided in respect of the MySuper member by taking out or maintaining insurance because of section 68AAA, 68AAB or 68AAC.

View history note

68AA(9)

View history reference

This section does not apply to:

(a) a defined benefit member; or

(b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:

(i) a member of the Permanent Forces (within the meaning of that Act); or

(ii) a continuous full-time Reservist (within the meaning of that Act); or

View history note

Death benefit and permanent incapacity benefit

68AA(10)
For the purposes of this Act:

death benefit
means a benefit provided in respect of a member of a regulated superannuation fund in, and only in, the event of the death of the member.

permanent incapacity benefit
means a benefit provided to a member of a regulated superannuation fund if, and only if, the member is suffering permanent incapacity.

View history note

SECTION 68A TRUSTEES MUST NOT USE GOODS OR SERVICES TO INFLUENCE EMPLOYERS

View history reference

68A(1)

View history reference

A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:

(a) supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or

(b) supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or

(c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;

if that action could reasonably be expected to:

(d) influence the choice of the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or

(e) influence the person to encourage one or more of the person's employees to remain, or apply or agree to be, a member of the fund.

Note:

Under the Superannuation Guarantee (Administration) Act 1992, employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid an increased individual superannuation guarantee shortfall for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act).

View history note

68A(2)
However, subsection (1) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.

68A(3)

View history reference

A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse to:

(a) supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or

(b) supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or

if it is reasonable to conclude that the refusal is given because:

(d) the person has not chosen the fund as the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or

(e) the person has not encouraged one or more of the person's employees to remain, or apply or agree to be, a member of the fund.

Note:

View history note

68A(4)
However, subsection (3) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.

Civil penalty provisions

68A(4A)

View history reference

Subsections (1) and (3) are civil penalty provisions as defined in section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections.

View history note

68A(5) Civil liability.

If:

(a) a person (the offender ) contravenes subsection (1) or (3); and

(b) another person (the victim ) suffers loss or damage because of the contravention;

the victim may recover the amount of the loss or damage by action against the offender.

68A(6)
The action must be begun within 6 years after the day on which the cause of action arose.

68A(7)
This section does not affect any liability that the offender or another person has under any other provision of this Act or under any other law.

View history note

SECTION 68B PROMOTION OF ILLEGAL EARLY RELEASE SCHEMES

View history reference

68B(1)
A person must not promote a scheme that has resulted, or is likely to result, in a payment being made from a regulated superannuation fund otherwise than in accordance with payment standards prescribed under subsection 31(1).

68B(2)
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 being involved in a contravention of, that subsection.

68B(3)
In this section:

promote
, in relation to a scheme, includes the following:

(a) enter into the scheme;

(b) induce another person to enter into the scheme;

(c) carry out the scheme;

(d) commence to carry out the scheme;

(e) facilitate entry into, or the carrying out of, the scheme.

scheme
means:

(a) any agreement, arrangement, understanding, promise or undertaking:

(i) whether express or implied; or

(ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; or

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

View history note

SECTION 68C VOTING BY A DIRECTOR OF A CORPORATE TRUSTEE - GOVERNING RULES

View history reference

68C(1)
This section applies to a regulated superannuation fund, other than a self managed superannuation fund, of which the trustee is a body corporate.

68C(2)
A provision in the governing rules of the fund is void to the extent that it purports to preclude a director of the trustee from voting on a matter relating to the fund.

Exception

68C(3)
Subsection (2) does not apply to a provision in the governing rules of the fund to the extent that the provision:

(a) precludes a director of the trustee of the fund from voting on a matter in which the director has a material personal interest; or

(b) otherwise relates to voting by a director of the trustee of the fund on a matter in which the director has a material personal interest; or

(c) precludes a director of the trustee of the fund from voting where there is a conflict of a kind described in paragraph 52(2)(d) or 52A(2)(d); or

(d) otherwise relates to voting by a director of the trustee of the fund where there is a conflict of a kind described in paragraph 52(2)(d) or 52A(2)(d); or

(e) precludes a director of the trustee of the fund from exercising a casting vote; or

(f) ensures compliance by the trustee of the fund, or a director of the trustee of the fund, with a prudential standard that deals with conflicts of interest or duty.

View history note

SECTION 68D VOTING BY AN INDIVIDUAL TRUSTEE - GOVERNING RULES

View history reference

68D(1)
This section applies to a regulated superannuation fund, other than a self managed superannuation fund, of which the trustee, or each of the trustees, is an individual.

68D(2)
A provision in the governing rules in the fund is void to the extent that it purports to preclude a trustee of the fund from voting on a matter relating to the fund.

Exception

68D(3)
Subsection (2) does not apply to a provision in the governing rules of the fund to the extent that the provision:

(a) precludes a trustee of the fund from voting on a matter in which the trustee has a material personal interest; or

(b) otherwise relates to voting by a trustee of the fund on a matter in which the trustee has a material personal interest; or

(c) precludes a trustee of the fund from voting where there is a conflict of a kind described in paragraph 52(2)(d); or

(d) otherwise relates to voting by a trustee of the fund where there is a conflict of a kind described in paragraph 52(2)(d); or

(e) precludes a trustee of the fund from exercising a casting vote; or

(f) ensures compliance by a trustee of the fund with a prudential standard that deals with conflicts of interest or duty.

View history note

PART 8 - IN-HOUSE ASSET RULES APPLYING TO REGULATED SUPERANNUATION FUNDS

Division 1 - Object and interpretation

Subdivision A - General

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View history note

SECTION 69

69 OBJECT OF PART
The object of this Part is to set out rules about the level of the in-house assets of regulated superannuation funds.

SECTION 69A

69A SUB-FUNDS TO BE TREATED AS FUNDS

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A sub-fund within a regulated superannuation fund is taken for the purposes of this Part to be a regulated superannuation fund if the sub-fund satisfies the following conditions:

(a) the sub-fund has separately identifiable assets and separately identifiable beneficiaries; and

(b) the interest of each beneficiary of the sub-fund is determined by reference only to the conditions governing that sub-fund.

View history note

70 (Repealed) SECTION 70 ASSOCIATE OF EMPLOYER-SPONSOR
(Repealed by No 199 of 1999)

SECTION 70A THE REGULATOR MAYDETERMINE A PERSON TO BE A STANDARD EMPLOYER-SPONSOR

View history reference

70A(1) [Person deemed standard employer-sponsor]

For the purposes of this Part, the Regulator may determine in writing that a person, who is not a standard employer-sponsor of a regulated superannuation fund within the meaning of subsection 16(2), is taken to be a standard employer-sponsor of the fund.

View history note

70A(2) [The Regulator to inform trustee]

View history reference

If the Regulator makes a determination under subsection (1) or revokes a determination so made, the Regulator must as soon as practicable after making or revoking the determination, inform a trustee of the regulated superannuation fund concerned, in writing, of the making or revocation of the determination.

View history note

Subdivision B - Part 8 associates

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View history note

SECTION 70B

70B PART 8 ASSOCIATES OF INDIVIDUALS

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For the purposes of this Part, each of the following is a Part 8 associate of an individual (the primary entity ), whether or not the primary entity is in the capacity of trustee:

(a) a relative of the primary entity;

(b)

View history reference

if the primary entity is a member of a superannuation fund with no more than 6 members:

(i) each other member of the fund; and

(ii) if the fund is a single member self managed superannuation fund whose trustee is a company - each director of that company; and

(iii) if the fund is a single member self managed superannuation fund whose trustees are individuals - those individuals;

(c) a partner of the primary entity or a partnership in which the primary entity is a partner;

(d) if a partner of the primary entity is an individual - the spouse or a child of that individual;

(e) a trustee of a trust (in the capacity of trustee of that trust), where the primary entity controls the trust;

(f) a company that is sufficiently influenced by, or in which a majority voting interest is held by:

(i) the primary entity; or

(ii) another entity that is a Part 8 associate of the primary entity because of another paragraph of this section or because of another application of this paragraph; or

(iii) 2 or more entities covered by the preceding subparagraphs.

View history note

SECTION 70C

70C PART 8 ASSOCIATES OF COMPANIES

View history reference

For the purposes of this Part, each of the following is a Part 8 associate of a company (the primary entity ), whether or not the primary entity is in the capacity of trustee:

(a) a partner of the primary entity or a partnership in which the primary entity is a partner;

(b) if a partner of the primary entity is an individual - the spouse or a child of that individual;

(c) a trustee of a trust (in the capacity of trustee of that trust), where the primary entity controls the trust;

(d) another entity (in this paragraph called the controlling entity ) where the primary entity is sufficiently influenced by, or a majority voting interest in the primary entity is held by:

(i) the controlling entity; or

(ii) another entity that is a Part 8 associate of the controlling entity because of section 70B or 70D, another paragraph of this section or another application of this paragraph; or

(iii) 2 or more entities covered by the preceding subparagraphs;

(e) another company (in this paragraph called the controlled company ) where the controlled company is sufficiently influenced by, or where a majority voting interest in the controlled company is held by:

(i) the primary entity; or

(ii) another entity that is a Part 8 associate of the primary entity because of another paragraph of this section or because of another application of this paragraph; or

(iii) 2 or more entities covered by the preceding subparagraphs;

(f) if a third entity is a Part 8 associate of the primary entity because of paragraph (d) of this subsection - an entity that is a Part 8 associate of that third entity because of section 70B or 70D or because of another paragraph of this section.

View history note

SECTION 70D

70D PART 8 ASSOCIATES OF PARTNERSHIPS

View history reference

For the purposes of this Part, each of the following is a Part 8 associate of a partnership (the primary entity ):

(a) a partner in the partnership;

(b) if a partner in the partnership is an individual - any entity that is a Part 8 associate of that individual because of section 70B;

(c) if a partner in the partnership is a company - any entity that is a Part 8 associate of that company because of section 70C.

View history note

SECTION 70E MEANINGS OF TERMS USED IN SECTIONS 70B, 70C AND 70D

View history reference

70E(1) Sufficient influence/majority voting interest.

For the purposes of sections 70B, 70C and 70D:

(a) a company is sufficiently influenced by an entity or entities if the company, or a majority of its directors, is accustomed or under an obligation (whether formal or informal), or might reasonably be expected, to act in accordance with the directions, instructions or wishes of the entity or entities (whether those directions, instructions or wishes are, or might reasonably be expected to be, communicated directly or through interposed companies, partnerships or trusts); and

(b) an entity or entities hold a majority voting interest in a company if the entity or entities are in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the company.

70E(2) Control of trust.

For the purposes of sections 70B, 70C and 70D, an entity controls a trust if:

(a) a group in relation to the entity has a fixed entitlement to more than 50% of the capital or income of the trust; or

(b) the trustee of the trust, or a majority of the trustees of the trust, is accustomed or under an obligation (whether formal or informal), or might reasonably be expected, to act in accordance with the directions, instructions or wishes of a group in relation to the entity (whether those directions, instructions or wishes are, or might reasonably be expected to be, communicated directly or through interposed companies, partnerships or trusts); or

(c) a group in relation to the entity is able to remove or appoint the trustee, or a majority of the trustees, of the trust.

70E(3) Group in relation to an entity.

For the purposes of subsection (2):

group
, in relation to an entity, means:

(a) the entity acting alone; or

(b) a Part 8 associate of the entity acting alone; or

(c) the entity and one or more Part 8 associates of the entity acting together; or

(d) 2 or more Part 8 associates of the entity acting together.

70E(4) Definitions.

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For the purposes of sections 70B, 70C and 70D:

company
has the same meaning as in the Income Tax Assessment Act 1997.

partnership
has the same meaning as in the Income Tax Assessment Act 1997.

relative
(Repealed by No 134 of 2008)

View history note

Subdivision C - In-house assets

View history reference

View history note

SECTION 71 MEANING OF IN-HOUSE ASSET

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Basic meaning

71(1)

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For the purposes of this Part, an in-house asset of a superannuation fund is an asset of the fund that is a loan to, or an investment in, a related party of the fund, an investment in a related trust of the fund, or an asset of the fund subject to a lease or lease arrangement between a trustee of the fund and a related party of the fund, but does not include:

(a) a life policy issued by a life insurance company; or

(b) a deposit with an ADI; or

(ba) (Repealed by No 160 of 2000)

(c)

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an investment in a pooled superannuation trust, where a trustee of the fund and the trustee of the pooled superannuation trust acted at arm's length in relation to the making of that investment; or

(d) an asset of a public sector fund, where the asset consists of an investment in securities issued under the authority of:

(i) the Commonwealth or a government of a State or a Territory; or

(ii) a public authority constituted by or under a law of the Commonwealth, a State or a Territory, where the public authority is neither a standard employer-sponsor, nor an associate of a standard employer-sponsor, of the fund; or

(e)

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an asset which the Regulator, by written notice given to a trustee of the fund, determines is not an in-house asset of the fund; or

(f)

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an asset which the Regulator, by legislative instrument, determines is not an in-house asset of:

(i) any fund; or

(ii) a class of funds in which the fund is included; or

[ CCH Note 1: Self Managed Superannuation Funds (Limited Recourse Borrowing Arrangements - In-house Asset Exclusion) Determination 2014 (F2014L00396) made under s 71(1)(f), effective 24 September 2007, states:

3 Determination

3.1
An asset ( the investment asset ) of a self managed superannuation fund ( the fund ) that is an investment in a related trust of the fund, is not an in-house asset of the fund at a time ( the test time ) where:

(a) the application of subsection 71(8) of the Superannuation Industry (Supervision) Act 1993 ( SIS Act ) would result in the investment asset not being an in-house asset of the fund at the test time but for the fact that:

(i) if a borrowing referred to in paragraph 71(8)(b) of the SIS Act has not yet begun - such a borrowing has not yet begun; and

(ii) the related trust does not yet hold the asset referred to in paragraph 71(8)(c) of the SIS Act; and

(b) it is reasonable to conclude at the test time that:

(i) if a borrowing referred to in paragraph 71(8)(b) of the SIS Act has not yet begun - such a borrowing will occur; and

(ii) the related trust will hold the asset referred to in paragraph 71(8)(c) of the SIS Act; and

(iii) the application of subsection 71(8) of the SIS Act would result in the investment asset not being an in-house asset of the fund from the time the related trust begins to hold the asset referred to in paragraph 71(8)(c) of the SIS Act.

3.2
An asset ( the investment asset ) of a self managed superannuation fund ( the fund ) that is an investment in a related trust of the fund, is not an in-house asset of the fund at a time ( the test time ) where:

(a) the application of subsection 71(8) of the Superannuation Industry (Supervision) Act 1993 ( SIS Act ) resulted in the investment asset not being an in-house asset of the fund at all times from when the related trust began to hold the asset referred to in paragraph 71(8)(c) of the SIS Act until a borrowing referred to in paragraph 71(8)(b) of the SIS Act was repaid; and

(b) the application of subsection 71(8) of the SIS Act would result in the investment asset not being an in-house asset of the fund at the test time but for the fact that that borrowing has been repaid.

4 Definitions
4
Expressions used in this determination have the same meaning as in the SIS Act.

]

[ CCH Note 2: Self Managed Superannuation Funds (COVID-19 Rental income deferrals - In-house Asset Exclusion) Determination 2020 (F2020L01482) made under s 71(1)(f), effective 27 November 2020, states:

3. Application
3
This instrument applies to the trustee(s) of a self-managed superannuation fund (fund) where the fund acquires or holds an asset that would be an in-house asset as a result of the rent payable under a lease as described in paragraphs 4(a) and (b) being deferred during one or both of the 2019-20 or 2020-21 income years.
4. Determination
4
For the purposes of paragraph 71(1)(f) of the Superannuation Industry (Supervision) Act 1993, where during one or both of the 2019-20 or 2020-21 income years the fund:

(a) allows a related party to defer the payment of rent under a lease agreement (on arm's length terms) because of the financial impact of the coronavirus known as COVID-19 which creates an asset held by the fund, or

(b) holds an asset that is an interest in a company or unit trust which is not an in-house asset under regulation 13.22B or regulation 13.22C of the Superannuation Industry (Supervision) Regulations 1994, and that company or unit trust allows a tenant to defer the payment of rent under a lease (on arm's length terms) because of the financial impact of the coronavirus known as COVID-19
the asset is not an in-house asset of the fund in the 2019-20 or 2020-21 years when the rent was deferred nor any future income years.

5. Definitions
5
Expressions used in this determination have the same meaning as in the Superannuation Industry (Supervision) Act 1993 and the Superannuation Industry (Supervision) Regulations 1994.

]

(g)

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if the superannuation fund has no more than 6 members - real property subject to a lease, or to a lease arrangement enforceable by legal proceedings, between a trustee of the fund and a related party of the fund, if, throughout the term of the lease or lease arrangement, the property is business real property (within the meaning of subsection 66(5)) of the fund; or

(h)

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an investment in a widely held unit trust; or

(i)

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property owned by the superannuation fund and a related party as tenants in common, other than property subject to a lease or lease arrangement between a trustee of the fund and a related party; or

(j)

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an asset included in a class of assets specified in the regulations:

(i) not to be in-house assets of any fund; or

(ii) not to be in-house assets of a class of funds to which the fund belongs.

For this purpose, a class of assets may consist of, but is not limited to, assets that are investments in entities that undertake, or do not undertake, specified activities.

View history note

Widely held trust

71(1A)

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For the purposes of paragraph (1)(h), a trust is a widely held unit trust if:

(a) it is a unit trust in which entities have fixed entitlements to all of the income and capital of the trust; and

(b) it is not a trust in which fewer than 20 entities between them have:

(i) fixed entitlements to 75% or more of the income of the trust; or

(ii) fixed entitlements to 75% or more of the capital of the trust.

For this purpose, an entity and the Part 8 associates of the entity are taken to be a single entity.

View history note

Agreements

71(2)

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If:

(a) apart from this subsection, an asset of a fund consists of a loan, an investment or an asset that is subject to a lease or lease arrangement, other than an in-house asset; and

(b) the loan, investment, lease or lease arrangement was made as a result of entering into or carrying out an agreement; and

(c) any of the persons who entered into or carried out the agreement was aware that the result of carrying out the agreement would be that:

(i) a loan would be made to, an investment would be made in, or an asset would be subject to a lease or lease arrangement with, a related party of the fund; or

(ii) an investment would be made in a related trust of the fund;

then the asset is taken, for the purposes of this Part, to be a loan to, an investment in, or an asset subject to a lease or lease arrangement with, that related party or related trust, as the case requires.

View history note

Definition

71(2A)

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In subsection (2):

agreement
includes any arrangement, understanding, promise or undertaking whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings.

View history note

Exceptions

71(2B)

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Subsection (2) does not apply to an investment referred to in paragraph 71(1)(a), (b), (c) or (h).

View history note

2 or more persons

71(3)

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Subsection (2) does not stop the same asset from being treated as if it were a loan to, an investment in, or an asset subject to a lease or lease arrangement with, 2 or more persons.

View history note

The Regulator's determination

71(4)

View history reference

If:

(a)

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apart from this subsection, an asset of a fund consists of a loan, an investment, or an asset subject to a lease or lease arrangement, other than an in-house asset; and

(b)

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the Regulator, by written notice given to a trustee of the fund, determines that the asset is to be treated, with effect from the day on which the notice is given, as if the asset were a loan to, an investment in, or an asset subject to a lease or lease arrangement with, a specified related party or related trust of the fund, including a person taken to be a standard employer-sponsor of the fund under section 70A;

then, despite paragraphs (1)(a) to (j), the asset is taken, for the purposes of this Part, to be a loan to or an investment in the related party or related trust, or an asset subject to a lease or lease agreement between a trustee of the fund and the related party.

View history note

Paragraph (1)(e) determinations or paragraph (1)(j) regulations may be retrospective

71(5)

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A determination under paragraph (1)(e) or regulations under paragraph (1)(j) may be expressed to have taken effect at a time earlier than the time when the determination or regulations were made.

View history note

71(6)
(Repealed by No 154 of 2007)

View history note

Public sector superannuation funds

71(7)

View history reference

For the purposes of applying this section to determine what is an in-house asset of a public sector superannuation fund, a reference to a Part 8 associate of an employer-sponsor of the fund is a reference to a body corporate in respect of which either of the following conditions is satisfied:

(a) the body corporate is sufficiently influenced by, or a majority voting interest in the body corporate is held by, the employer-sponsor;

(b) the employer-sponsor is sufficiently influenced by, or a majority voting interest in the employer-sponsor is held by, the body corporate.

View history note

Limit on when investments in related trusts are in-house assets

71(8)

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If, at a time:

(a) an asset (the investment asset ) of a superannuation fund is an investment in a related trust of the fund; and

(b)

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the related trust is one described in paragraph 67A(1)(b) in connection with a borrowing, by the trustee of the fund, that is covered by subsection 67A(1); and

(c)

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the only property of the related trust is the acquirable asset mentioned in that paragraph;

the investment asset is an in-house asset of the fund at the time only if the acquirable asset mentioned in that paragraph would be an in-house asset of the fund if it were an asset of the fund at the time.

View history note

71(9)

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Subsections (1), (2) and (4) have effect subject to subsection (8).

View history note

Subdivision D - Transitional arrangements in relation to in-house assets

View history reference

View history note

SECTION 71A EXCEPTIONS - PRE-11 AUGUST 1999 INVESTMENTS AND LOANS

View history reference

71A(1) [When assets not in-house assets at post-test time]

If:

(a) at any time (the post-test time ) after the test time, an asset of a superannuation fund consists of:

(i) a loan or an investment made before the test time, or made after the test time under a contract entered into before the test time; or

(ii) a share or unit in a unit trust, if the share, or the unit, as the case requires, was acquired before the test time or under a contract entered into before the test time (notwithstanding any payments on the share or unit made to the issuer of the share or unit after the test time and before 1 July 2009); and

(b) if the asset was an asset of the fund immediately before the test time - it was not an in-house asset of the fund; and

(c) if the asset was not an asset of the fund immediately before the test time - it would not have been an in-house asset if it had been an asset of the fund immediately before the test time; and

(d) apart from this Subdivision, the asset would be an in-house asset of the fund at the post-test time;

the asset is not an in-house asset of the fund at the post-test time.

71A(2) Payments on partly paid shares and units after 30 June 2009.

However, if:

(a) the post-test time is after 30 June 2009; and

(b) the asset consists of a share or a unit in a unit trust; and

(c) one or more payments on the share or unit to the issuer of the share or unit has been made since 30 June 2009;

then:

(d) the asset is an in-house asset of the fund at the post-test time; and

(e) subsection (3) applies to the share or unit.

71A(3) Reduced value for the purposes of working out value of in-house assets.

For the purposes of working out the formula component Number of whole dollars in value of in-house assets of the fund under section 75 at the post-test time, the value of the share or unit at the post-test time is taken to be the number of whole dollars in the amount worked out as follows:

Market value of share or unit

Excess amount
Total amount

where:

excess amount
means the total of the amounts that, as at the post-test time, had been paid after 30 June 2009 on the share or unit to the issuer of the share or unit.

market value of share or unit
means the market value of the share or unit as at the post-test time.

total amount
means the total of the amounts that, as at the post-test time had been paid (whether before or after 30 June 2009) on the share or unit to the issuer of the share or unit.

View history note

SECTION 71B EXCEPTIONS - PRE-11 AUGUST 1999 LEASES AND LEASE ARRANGEMENTS

View history reference

71B(1) [Not an in-house asset at post-test time]

View history reference

If:

(a) at any time (the post - test time ) after the test time, an asset of a superannuation fund consists of an asset subject to a lease, or a lease arrangement, between a trustee of the fund and a related party of the fund; and

(b) the asset was subject to a lease or lease arrangement, or any uninterrupted sequence of leases and lease arrangements, between a trustee of the fund and a related party, throughout the period beginning immediately before the test time and ending at the post-test time; and

(c) apart from this section, the asset would be an in-house asset of the fund at the post-test time;

the asset is not an in-house asset of the fund at the post-test time.

View history note

71B(2) [Lease and lease arrangements]

View history reference

For the purposes of subsection (1), if:

(a) before the test time, a lease or a lease arrangement enforceable by legal proceedings, in respect of an asset, was entered into between a trustee of a superannuation fund and a related party of the fund; and

(b) the lease or lease arrangement came into force after the test time;

the asset is taken to have been subject to a lease or a lease arrangement, between a trustee of the fund and that related party, immediately before the test time.

View history note

SECTION 71C EXCEPTIONS - TRANSITION PERIOD

View history reference

71C(1) Investments and loans.

If:

(a) at any time (the pre - 1 July 2001 time ) during the period after the test time but before 1 July 2001, an asset of a superannuation fund consists of a loan or an investment made during the transition period, other than under a contract entered into before the beginning of that period; and

(b) if the asset had been an asset of the fund immediately before the test time - the asset would not have been an in-house asset of the fund; and

(c) apart from this section, the asset would be an in-house asset of the fund at the pre-1 July 2001 time;

the asset is not an in-house asset of the fund at the pre-1 July 2001 time. For this purpose, a loan or an investment is not made during the transition period merely because a contract is entered into during that period for the purpose of gaining interest, income, profit or gain.

71C(2) Leases and lease arrangements.

View history reference

If:

(a) at any time (the pre - 1 July 2001 time ) during the period after the test time but before 1 July 2001, an asset of a superannuation fund consists of an asset subject to a lease, or a lease arrangement, between a trustee of the fund and a related party of the fund; and

(b) section 71B does not apply to the asset at the pre-1 July 2001 time; and

(c) the asset became subject to a lease or lease arrangement between a trustee of the fund and a related party at a time (the transition time ) during the transition period; and

(d) the asset was subject to a lease or a lease arrangement, or any uninterrupted sequence of leases and lease arrangements, between a trustee of the fund and a related party, throughout the period beginning at the transition time and ending at the pre-1 July 2001 time; and

(e) apart from this section, the asset would be an in-house asset of the fund at the post-test time;

the asset is not an in-house asset of the fund at the pre-1 July 2001 time.

View history note

SECTION 71D

71D EXCEPTION - REINVESTMENTS

View history reference

If:

(a) at any time (the post - test time ) after the test time, an asset of a superannuation fund consists of an investment (the post-test time investment ) in an entity (the original entity ) made during the period:

(i) beginning at the test time; and

(ii) ending at the end of 30 June 2009; and

(b) the post-test time investment is not covered by section 71A; and

(c) if the fund had made the post-test time investment immediately before the test time, it would not have been an in-house asset of the fund; and

(d) the sum of the purchase price of the post-test time investment and any previous investment to which this section applies does not, at the post-test time, exceed the sum of the following amounts:

(i) the sum of the amounts of all dividends or trust distributions received after the test time, but before the end of 30 June 2009, by the superannuation fund from the original entity, which were derived from an investment in the original entity made by the fund before the test time;

(ii) the sum of the amounts of all dividends or trust distributions received after the test time, but before the end of 30 June 2009, by the superannuation fund, which were derived from investments of dividends and trust distributions taken into account under subparagraph (i) or this subparagraph;

the asset is not an in-house asset of the fund at the post-test time.

View history note

SECTION 71E EXCEPTION - CERTAIN GEARED INVESTMENTS

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71E(1)
If:

(a)

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at any time (the post-test time ) after the test time, an asset of a superannuation fund that has no more than 6 members consists of an investment (the post-test time investment ) in a unit trust or a company (the first entity ) made during the period:

(i) beginning at the test time; and

(ii) ending at the end of 30 June 2009; and

(b) immediately before the test time, another asset (other than an in-house asset) of the superannuation fund consisted of an investment (the prior investment ) in the first entity; and

(c) immediately before the test time, an amount (the principal ) consisting of the principal of a loan was owed by the first entity to any entity other than the superannuation fund; and

(d) apart from this Subdivision, the post-test time investment would be an in-house asset of the fund at the post-test time; and

(e)

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the trustee, or the trustees, of the fund makes a written election, within:

(i) the period of 12 months beginning on the day on which this section commenced; or

(ii) such later period as is prescribed by the regulations;

that section 71E is to apply to all post-test time investments of the fund in that entity;

Note:

Under subsection 103(2A), the trustee, or the trustees, of the fund must keep the election, or a copy of it, for 10 years after it is made.

then subsection (2) or (3), as the case requires, applies, and is taken always to have applied, to the post-test time investment.

View history note

71E(2) Sum of purchase prices of post-test time investments does not exceed the principal - investment not an in-house asset.

The post-test time investment is not an in-house asset of the fund at the post-test time if the sum of the following amounts does not exceed the amount of the principal:

(a) the purchase price of the post-test time investment;

(b) the purchase price of any previous post-test time investment in the first entity by the fund.

71E(3) Sum of purchase prices of post-test time investments exceeds the principal - formula to be applied.

If the sum of the following:

(a) the purchase price of the post-test time investment;

(b) the purchase price of any previous post-test time investment in the first entity by the fund;

exceeds the amount of the principal, then:

(c) the post-test time investment is an in-house asset of the fund at the post-test time; and

(d) if the post-test time investment is the first post-test time investment in respect of which the sum of the amounts referred to in paragraphs (a) and (b) exceeds the amount of the principal - subsection (4) applies to the investment.

71E(4) Reduced value for the purposes of working out value of in-house assets.

For the purposes of working out the formula component Number of whole dollars in value of in-house assets of the fund under section 75 at the post-test time, the value of the post-test time investment at the post-test time is taken to be the number of whole dollars in the amount worked out as follows:

Market value of
post-test time investment

Excess amount
Purchase price of
post-test time investment

where:

excess amount
means the amount of the excess under subsection (3).

market value of post-test time investment
means the market value of the post-test time investment as at the post-test time.

purchase price of post-test time investment
means the purchase price of the post-test time investment.

71E(5) Effect of election.

View history reference

If the trustee, or the trustees, of a fund make an election under paragraph (1)(e) in respect of the post-test time investments of the fund in an entity, then:

(a) sections 71A and 71D do not apply, and are taken never to have applied, to any post-test time investment by the fund in that entity; and

(b) this section applies, and is taken always to have applied, to any post-test time investment of the fund in that entity.

Note:

This means that if a fund makes an election, this section would apply to all investments in the entity after the test time and before 1 July 2009, and sections 71A and 71D would not apply to such investments.

View history note

71E(6) Application of section to loans.

A reference in this section to an investment in a trust or company is taken to include a reference to a loan to a trust or company. For this purpose, the purchase price of the loan is taken to be the principal of the loan at the time at which the loan was made.

View history note

SECTION 71EA RELATIONSHIP BREAKDOWNS

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Scope

71EA(1)
This section applies if:

(a) a trustee or an investment manager of a regulated superannuation fund (the acquiring fund ) acquires an asset:

(i) for the benefit of a particular member of the acquiring fund; and

(ii) from a trustee or investment manager of another regulated superannuation fund (the transferring fund ); and

(b) at the time of the acquisition:

(i) the member and his or her spouse or former spouse are separated; and

(ii) there is no reasonable likelihood of cohabitation being resumed; and

(c) the acquisition occurs because of reasons directly connected with the breakdown of the relationship between the spouses or former spouses; and

(d)

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the asset represents the whole, or a part, of either:

(i) the member's own interests in the transferring fund; or

(ii) the member's entitlements as determined under Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interests of the member's spouse, or former spouse, in the transferring fund.

View history note

71EA(2)
For the purposes of subsection (1), the question whether the spouses, or former spouses, have separated is to be determined in the same way as it is for the purposes of section 48 of the Family Law Act 1975 (as affected by sections 49 and 50 of that Act).

Acquiring fund taken to have always held asset

71EA(3)
For the purposes of applying this Subdivision to the asset at or after the time (the acquisition time ) the trustee or investment manager of the acquiring fund acquires the asset, treat:

(a) the acquisition as having occurred at the time the trustee or investment manager of the transferring fund acquired the asset; and

(b) anything done by, for or in relation to the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the acquiring fund; and

(c) anything done by, for or in relation to the trustee or investment manager of the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the trustee or investment manager of the acquiring fund.

Section 71E elections

71EA(4)
In addition to their effect apart from this subsection, subsection 103(2A) (duty to keep record of election) and subsection 103(3), to the extent that it relates to subsection 103(2A), also have the effect they would have if subsection (3) of this section applied to them.

Note:

This means that the trustees of both the transferring fund and the acquiring fund must retain, in accordance with subsection 103(2A), any election made under section 71E in relation to the transferring fund before the transfer of the asset.

71EA(5)
A person commits an offence if:

(a) the person is a trustee of the transferring fund; and

(b) just before the acquisition time, the trustee had a duty under subsection 103(2A) to retain an election, or a copy of an election, under section 71E in relation to the transferring fund; and

(c) the trustee does not, within 14 days after the acquisition time, give the election or copy to a trustee or investment manager of the acquiring fund.

Penalty: 50 penalty units.

Note:

If the trustee gives the election to the acquiring fund, he or she must retain a copy of the election: see subsection (4).

71EA(6)
An offence against subsection (5) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

View history note

SECTION 71F

71F MEANING OF CERTAIN TERMS USED IN SUBDIVISION D

View history reference

In this Subdivision:

test time
means the end of 11 August 1999.

transition period
means the period:

(a) beginning at the test time; and

(b) ending on the day on which this section commenced.

View history note

Subdivision E - Other provisions in relation to in-house assets

View history reference

View history note

SECTION 72 HOW THIS PART APPLIES IF THERE ARE 2 OR MORE EMPLOYER-SPONSORS OF WHOM AT LEAST ONE IS AN UNRELATED EMPLOYER-SPONSOR

View history reference

72(1) [Unrelated or related]

For the purposes of this section:

(a) a standard employer-sponsor (the first employer-sponsor ) of a superannuation fund is an unrelated employer-sponsor of the fund if, and only if, there is no other standard employer-sponsor of the fund who is a Part 8 associate of the first employer-sponsor; and

View history reference

(b) 2 or more standard employer-sponsors of a superannuation fund are related to each other if they are Part 8 associates.

View history reference

View history note

72(2) [Corresponding classes of in-house assets]

For the purposes of this section:

(a) the class of the in-house assets of a fund that corresponds to a particular unrelated employer-sponsor is the class of in-house assets that consists of:

(i) loans to, investments in, or assets subject to leases or lease arrangements with, the employer-sponsor or a Part 8 associate of the employer-sponsor; or

(ii) loans to, investments in, or assets subject to leases or lease arrangements with, a standard employer-sponsored member of the fund, in respect of whom the employer-sponsor contributes to the fund, or a Part 8 associate of such a member; or

(iii) investments in a trust that is controlled by an entity referred to in subparagraph (i) or (ii); and

View history reference

(b) the class of the in-house assets of a fund that corresponds to 2 or more employer-sponsors who are related to each other is the class of in-house assets that consists of:

(i) loans to, investments in, or assets subject to leases or lease arrangements with, any of them or a Part 8 associate of any of them; or

(ii) loans to, investments in, or assets subject to leases or lease arrangements with, a standard employer-sponsored member of the fund, in respect of whom any of them contributes to the fund, or a Part 8 associate of such a member; or

(iii) investments in a trust that is controlled by an entity referred to in subparagraph (i) or (ii).

View history reference

View history note

72(3) [Two or more employer-sponsors]

Subsections (4) and (5) apply if:

(a) there are 2 or more unrelated employer-sponsors of a superannuation fund (whether or not there are also any employer-sponsors of the fund who are related to each other); or

(b) there are 2 or more employer-sponsors of a superannuation fund who are related to each other and there are also one or more unrelated employer-sponsors of the fund.

72(4) [In-house assets of fund as a whole]

This Part does not apply in relation to the fund in relation to the in-house assets of the fund as a whole.

72(5) [Corresponding classes of in-house assets]

View history reference

However, this Part applies in relation to the fund separately in relation to each of the corresponding classes of in-house assets of the fund.

View history note

72(6) [Self managed superannuation funds]

View history reference

This section does not apply to a self managed superannuation fund.

View history note

SECTION 73 COST OF IN-HOUSE ASSET

73(1) [Arm's length value of asset]

For the purposes of this Part, if:

(a) an asset of a superannuation fund was acquired:

(i) without consideration; or

(ii) for consideration other than the arm's length value of the asset when it was acquired; or

(b) the whole or a part of the consideration for which an asset of a superannuation fund was acquired was not money;

the cost of the asset is taken to be the arm's length value of the asset when it was acquired.

73(2) [Definition]

In this section:

arm's length value
, in relation to an asset, means the amount that the acquirer of the asset could reasonably be expected to have been required to pay to acquire the asset under a transaction where the parties to the transaction are dealing with each other at arm's length in relation to the transaction.

SECTION 74

74 HISTORICAL COST RATIO OF FUND'S IN-HOUSE ASSETS
For the purposes of this Part, the historical cost ratio of a fund's in-house assets is the percentage worked out using the formula:

Number of whole dollars in cost of
in-house assets of the fund
Number of whole dollars in cost of all
the assets of the fund

100

SECTION 75 MARKET VALUE RATIO OF FUND'S IN-HOUSE ASSETS

75(1) [Calculation]

For the purposes of this Part, the market value ratio of a fund's in-house assets is the percentage worked out using the formula:

Number of whole dollars in value of
in-house assets of the fund
Number of whole dollars in value of
all the assets of the fund

100

75(2) [Calculation where separate application of Part]

View history reference

Where, because of subsections 72(4) and (5), this Part applies separately to each of the corresponding classes of in-house assets of a superannuation fund, the market value ratio of the in-house assets of each corresponding class is a percentage worked out using the formula:

View history note

Division 2 - Historical cost ratio of fund's in-house assets

SECTION 76 PRIVATE SECTOR FUNDS ESTABLISHED ON OR AFTER 12 MARCH 1985 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME

76(1) [Application of section]

This section applies to a regulated superannuation fund, if the fund is a private sector fund established on or after 12 March 1985.

76(2) [Historical cost ratio]

At all times during the fund's 1994-95 year of income when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed 10%.

SECTION 77 PRIVATE SECTOR FUNDS ESTABLISHED BEFORE 12 MARCH 1985 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME

77(1) [Application of section]

This section applies to a regulated superannuation fund, if the fund is a private sector fund established before 12 March 1985.

77(2) [Historical cost ratio]

At all times during the fund's 1994-95 year of income when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed whichever is the greater of the following percentages:

(a) whichever is the lesser of the following percentages:

(i) the percentage equal to the historical cost ratio of the fund's in-house assets as at the end of 11 March 1985;

(ii) 70%;

(b) 10%.

77(3) [Section 72 to be ignored]

Section 72 is to be ignored in working out the percentage mentioned in subparagraph (2)(a)(i).

SECTION 78 PUBLIC SECTOR FUNDS ESTABLISHED ON OR AFTER 1 JULY 1990 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME

78(1) [Application of section]

This section applies to a regulated superannuation fund, if the fund is a public sector fund established on or after 1 July 1990.

78(2) [Historical cost ratio]

At all times during the fund's 1994-95 year of income when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed 10%.

SECTION 79 PUBLIC SECTOR FUNDS ESTABLISHED BEFORE 1 JULY 1990 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME

79(1) [Application of section]

This section applies to a regulated superannuation fund, if the fund is a public sector fund established before 1 July 1990.

79(2) [Historical cost ratio]

(a) the percentage equal to the historical cost ratio of the fund's in-house assets as at the end of 1 July 1990;

(b) 10%.

79(3) [Section 72 to be ignored]

Section 72 is to be ignored in working out the percentage mentioned in paragraph (2)(a).

SECTION 80 ALL FUNDS - HISTORICAL COST RATIO FOR THE 1995-96 YEAR OF INCOME, THE 1996-97 YEAR OF INCOME AND THE 1997-98 YEAR OF INCOME

80(1) [Application of section]

This section applies to a regulated superannuation fund.

80(2) [Historical cost ratio]

At all times during the period:

(a) beginning at the beginning of the fund's 1995-96 year of income; and

(b) ending at the end of the fund's 1997-98 year of income;

when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed 10%.

Division 3 - Market value ratio of fund's in-house assets

SECTION 80A

80A DIVISION NOT APPLICABLE TO CERTAIN FUNDS

View history reference

A superannuation fund is taken not to have been required to comply with this Division in respect of a year of income if:

(a) Division 3A applied to the fund in respect of that year of income; and

(b) an actuary has certified that the fund complied with that Division in respect of that year of income.

View history note

SECTION 81 ALL FUNDS - MARKET VALUE RATIO FOR THE 1998-99 YEAR OF INCOME AND THE 1999-2000 YEAR OF INCOME

81(1) [Application of section]

This section applies to a regulated superannuation fund.

81(2) [Market value ratio]

The market value ratio of the fund's in-house assets as at the end of:

(a) the fund's 1998-99 year of income; or

(b) the fund's 1999-2000 year of income;

must not exceed 10%.

SECTION 82 ALL FUNDS - MARKET VALUE RATIO FOR THE 2000-2001 YEAR OF INCOME AND LATER YEARS OF INCOME

82(1) [Application of section]

This section applies to a regulated superannuation fund.

82(2) [Market value ratio exceeds 5%]

View history reference

If the market value ratio of the fund's in-house assets as at the end of:

(a) the fund's 2000-2001 year of income; or

(b) a later year of income;

exceeds 5%, the trustee of the fund, or, if the fund has a group of individual trustees, the trustees of the fund, must prepare a written plan.

View history note

82(3) [Formula]

The plan must specify the amount (the excess amount ) worked out using the formula:

82(4) [Trustee's plan]

View history reference

Theplan must set out the steps which the trustee proposes, or, if the fund has a group of individual trustees, the trustees propose, to take in order to ensure that:

(a) one or more of the fund's in-house assets held at the end of that year of income are disposed of during the next following year of income; and

(b) the value of the assets so disposed of is equal to or more than the excess amount.

View history note

82(5) [Preparation of plan]

The plan must be prepared before the end of the next following year of income.

82(6) [Trustee's obligation]

View history reference

Each trustee of the fund must ensure that the steps in the plan are carried out.

View history note

SECTION 83 CERTAIN NEW IN-HOUSE ASSET INVESTMENTS PROHIBITED

83(1) [Application of section]

This section applies to a regulated superannuation fund.

83(2) [Market value ratio exceeds 5%]

View history reference

If the market value ratio of the fund's in-house assets exceeds 5%, a trustee of the fund must not acquire an in-house asset.

View history note

83(3) [Market value ratio does not exceed 5%]

View history reference

If the market value ratio of the fund's in-house assets does not exceed 5%, a trustee of the fund must not acquire an in-house asset if the acquisition would result in the market value ratio of the fund's in-house assets exceeding 5%.

View history note

83(4) [Investment, loan, lease, etc]

View history reference

For the avoidance of doubt, a reference in this section to acquiring an in-house asset includes a reference to making an investment or a loan, or entering into a lease or a lease arrangement, if the resulting loan or investment, or the asset subject to the lease or the lease arrangement, would be an in-house asset.

View history note

Division 3A - Limit on in-house assets of certain defined benefit funds

SECTION 83A

83A DEFINITIONS

View history reference

In this Division, unless the contrary intention appears:

base amount
, in relation to a defined benefit fund at a particular time, means 120% of:

(a) the fund's liabilities in respect of vested benefits; or

(b) the fund's accrued actuarial liabilities;

at that time, whichever is the greater.

defined benefit fund
means:

(a) a public sector superannuation scheme that:

(i) is a regulated superannuation fund; and

(ii) has at least one defined benefit member; or

(b) a regulated superannuation fund (other than a public sector superannuation scheme):

(i) that has at least one defined benefit member; and

(ii) some or all of the contributions to which (being contributions out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.

defined benefit member
means a member entitled, on retirement or termination of his or her employment, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:

(a) the amount of:

(i) the member's salary at a particular date, being the date of the termination of the member's employment or of the member's retirement or an earlier date; or

(ii) the member's salary averaged over a period before retirement;

(b) a specified amount.

fund's accrued actuarial liabilities
, at a particular time, means the total value, as certified by an actuary, of the future benefit entitlements of members of the fund in respect of membership up to that time based on assumptions about future economic conditions and the future of matters affecting membership of the fund, being assumptions made in accordance with applicable professional actuarial standards (if any).

fund's liabilities in respect of vested benefits
, at a particular time, means the total value of the benefits payable from the fund to which the members of the fund would be entitled if they all voluntarily terminated their service with their employers at that time.

listed public company
means a company any of the shares in the capital of which are listed for quotation in the official list of a stock exchange in Australia or elsewhere.

maximum permitted amount
, in relation to a defined benefit fund at a particular time, means the sum of:

(a) an amount equal to the prescribed percentage of the base amount in relation to the fund at that time; and

(b) the amount (if any) by which the market value of the fund's assets at that time exceeds that base amount.

prescribed percentage
means:

(a) where the expression is used in relation to a time that occurs during the 1998-99 year of income or the 1999-2000 year of income - 10%; or

(b) where the expression is used in relation to a time that occurs during a later year of income - 5%.

voting share
has the same meaning as in the Corporations Act 2001.

View history note

SECTION 83B APPLICATION OF DIVISION

View history reference

83B(1) [When applicable]

This Division applies to a superannuation fund in respect of the fund's 1998-99 year of income or a later year of income if, and only if:

(a) the fund is a defined benefit fund; and

(b) at the end of that year of income the employer-sponsor was a listed public company or an associate of a listed public company; and

(c) the market value of the fund's assets at the end of that year of income was not less than the base amount in relation to the fund at that time; and

(d) the trustee, or the trustees, of the fund have decided that this Division is to apply to the fund in respect of that year of income.

View history reference

View history note

83B(2) [Trustee's decision recorded in writing]

View history reference

If the trustee, or the trustees, of the fund make a decision referred to in paragraph (1)(d), each trustee must ensure that the decision is recorded in writing.

View history note

SECTION 83C

83C MAXIMUM PERMITTED MARKET VALUE OF IN-HOUSE ASSETS

View history reference

The market value of the fund's in-house assets at the end of a year of income must not exceed the maximum permitted amount in relation to the fund at that time.

View history note

SECTION 83D LIMIT ON IN-HOUSE ASSETS

View history reference

83D(1) [Prescribed percentage of base amount]

The market value of the fund's in-house assets (other than shares in the capital of listed public companies) at the end of a year of income must not exceed the prescribed percentage of the base amount in relation to the fund at that time.

83D(2) [5% of voting shares]

The fund's in-house assets at the end of a year of income must not include more than 5% of the voting shares in any listed public company that is the employer-sponsor or is an associate of the employer-sponsor.

View history note

SECTION 83E

83E ACQUISITION OF IN-HOUSE ASSETS PROHIBITED IN CERTAIN CIRCUMSTANCES

View history reference

If the market value of the fund's in-house assets at the end of a year of income exceeds the prescribed percentage of the base amount in relation to the fund at that time, a trustee of the fund must not buy, or enter into any contract to buy, on behalf of the fund any in-house assets until the time when an actuary certifies that the market value of the fund's in-house assets has ceased to exceed the prescribed percentage of the base amount in relation to the fund.

View history note

Division 4 - Enforcement

SECTION 84 IN-HOUSE ASSET RULES MUST BE COMPLIED WITH

84(1)

View history reference

Each trustee of a regulated superannuation fund must take all reasonable steps to ensure that the provisions of Division 2, and either Division 3 or 3A (whichever is applicable), are complied with.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

View history note

84(2)
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.

84(3)
A contravention of subsection (1) does not affect the validity of a transaction.

Division 5 - Anti-avoidance

SECTION 85 PROHIBITION OF AVOIDANCE SCHEMES

85(1) Prohibition.

A person must not enter into, commence to carry out, or carry out, a scheme if the person entered into, commenced to carry out, or carried out the scheme or any part of the scheme with the intention that:

(a) the scheme would result, or be likely to result, in an artificial reduction in the market value ratio of the fund's in-house assets; and

(b) that artificial reduction would avoid the application of any provision of this Part to the fund.

85(2) 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 being involved in a contravention of, that subsection.

85(3) Validity of transaction not affected by contravention of subsection (1).

A contravention of subsection (1) does not affect the validity of a transaction.

85(4) Scheme.

In this section:

scheme
means:

(a) any agreement, arrangement, understanding, promise or undertaking:

(i) whether express or implied; or

(ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; and

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

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 86

86 OBJECT OF PART
The object of this Part is to set out rules about the representation of employers and members in relation to the management and control of standard employer-sponsored funds.

SECTION 87

87 CONSEQUENCES OF NON-COMPLIANCE WITH THIS PART
It is not an offence to contravene this Part and a failure to comply with this Part does not result in the invalidity of a transaction. However, a contravention of this Part may result in a fund being directed under section 63 not to accept any contributions made to the fund by an employer-sponsor (see subsection 63(6)).

View history note

SECTION 88

88 THIS PART DOES NOT APPLY IF ACTING TRUSTEE APPOINTED UNDER PART 17
This Part does not apply to a fund if the fund has an acting trustee appointed under Part 17.

SECTION 89 BASIC EQUAL REPRESENTATION RULES

89(1) Basic rule.

For the purposes of this Part, a fund complies with the basic equal representation rules if:

(a) both:

(i) the fund has a group of individual trustees;

(ii) the group of trustees consists of equal numbers of employer representatives and member representatives; or

View history reference

(b) both:

(i) the fund has a single corporate trustee;

(ii) the board of the corporate trustee consists of equal numbers of employer representatives and member representatives.

View history note

89(2) Additional independent trustee or additional independent director.

For the purposes of the application of the basic equal representation rules to a fund, a group of trustees, or the board of a corporate trustee, is taken to consist of equal numbers of employer representatives and member representatives if:

(a) the group or board includes an additional independent trustee or an additional independent director, as the case may be; and

(b) the additional independent trustee or additional independent director, as the case may be, is appointed at the request of the employer representatives, or the member representatives, who are the members of the group or board; and

(c) provision is made in the governing rules for the appointment of the independent additional trustee or additional independent director, as the case may be; and

(d) the governing rules do not allow the additional independent trustee or additional independent director, as the case may be, to exercise a casting vote in any proceedings of the group or board concerned.

89(3) Vacancy.

For the purposes of the application of the basic equal representation rules to a fund, if:

(a) a vacancy occurs in the membership of a group of trustees or of the board of a corporate trustee; and

(b) immediately before the vacancy occurred, the fund complied with the basic equal representation rules; and

(c) the vacancy is filled within 90 days after it occurred; and

(d) immediately after the vacancy is filled, the fund complies with the basic equal representation rules;

the fund is taken to have complied with the basic equal representation rules at all times during the period of the vacancy.

SECTION 90 PRE-1 JULY 1995 RULES - FUNDS WITH FEWER THAN 200 MEMBERS

90(1) Application.

This section applies to a standard employer-sponsored fund (other than a public offer superannuation fund) with fewer than 200 members, where:

(a) the fund is a private sector fund established on or after 16 December 1985; or

(b) the fund is a public sector fund established on or after 25 May 1988; or

(c) if there are 2 or more standard employer-sponsors of the fund - any one of those employer-sponsors is not an associate of any other of those employer-sponsors.

90(2) Pre-1 July 1995.

This section does not apply on or after 1 July 1995.

90(3) Rules.

The fund must comply with:

(a) the basic equal representation rules; or

(b) the alternative agreed representation rule set out in subsection (4).

90(4) Alternative agreed representation rule.

For the purposes of this section, a fund complies with the alternative agreed representation rule if any of the trustees of the fund are appointed following nomination by agreement between:

(a) either:

(i) the members of the fund; or

(ii) a trade union, or other organisation, representing the interests of those members; and

(b) either:

(i) the employer or employers of those members; or

(ii) an organisation representing the interests of that employer or those employers.

90(5) Transitional.

(Repealed by Revocation of Modification Declarations (F2005L02475))

[ CCH Note: MODIFICATION DECLARATION No 2 (No GN 31 of 10 August 1994) provides that Pt 9 is to have effect, in relation to standard employer-sponsored funds, and their trustees, as if it were modified by inserting after subsection 90(4) the following:

Transitional

(5) If, at a particular time, the number of members of a fund increases from 4 or less to more than 4 but less than 200, the fund does not have to comply with this section during the following 90 days.

This declaration is taken to have commenced on 1 December 1993. The declaration was revoked effective from 6 September 2005.]

SECTION 91 PRE-1 JULY 1995 RULES - FUNDS WITH 200 OR MORE MEMBERS

91(1) Application.

This section applies to a standard employer-sponsored fund with 200 or more members, where:

(a) the fund is a private sector fund established on or after 16 December 1985; or

(b) the fund is a public sector fund established on or after 25 May 1988; or

(c) if there are 2 or more standard employer-sponsors of the fund - any one of those employer-sponsors is not an associate of any other of those employer-sponsors.

91(2) Pre-1 July 1995.

This section does not apply on or after 1 July 1995.

91(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.

View history note

91(4) Non-public offer funds.

If the fund is not a public offer superannuation fund, the fund must comply with the basic equal representation rules.

91(5) Transitional.

If, at a particular time, the number of members of a fund increases from a number less than 200 to 200 or more:

(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:

(i) beginning at that time; and

(ii) ending at whichever is the earlier of the following times:

(A) the time at which such arrangements are made;

(B) the end of 90 days.

SECTION 92 POST-30 JUNE 1995 RULES - FUNDS WITH MORE THAN 6, BUT FEWER THAN 50, MEMBERS

92(1) Application.

View history reference

This section applies to a standard employer-sponsored fund with more than 6, but fewer than 50, members.

View history note

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

(c) each prescribed policy committee must consist of equal numbers of employer representatives and member representatives.

View history note

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)

View history reference

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.]

View history note

92(4A) Imposing conditions on, and revoking, subparagraph (4)(c)(ii) approvals.

View history reference

[ 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.

View history reference

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.

View history reference

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.

View history note

92(4B)

View history reference

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)

View history reference

may be revoked by APRA by written notice given to a trustee of the fund.

View history note

92(4C)

View history reference

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)

View history reference

a trustee of the fund applies in writing for its revocation.

View history note

92(4D)

View history reference

APRA may vary or revoke the conditions of the arrangement approval by written notice given to a trustee of the fund.

View history note

92(5) Alternative agreed representation rule.

For the purposes of this section, a fund complies with the alternative agreed representation rule if:

(a)

View history reference

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)

View history reference

the trustee is an RSE licensee; and

(ca)

View history reference

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.]

View history note

92(5A) Commissioner must have regard to guidelines when deciding whether to grant approvals.

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)

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92(7)
(Repealed by No 53 of 2004)

View history note

92(8)
(Repealed by No 53 of 2004)

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92(9)
(Repealed by No 53 of 2004)

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92(10)

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(Repealed by No 160 of 2000)

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92(11)

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(Repealed by No 160 of 2000)

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92(12)

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(Repealed by No 160 of 2000)

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92(13) Transitional.

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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.

View history note

SECTION 92A WHERE A SECTION 26 APPROVAL CONTAINS A SUBSECTION 92(5) APPROVAL

Where a section 26 approval contains a subsection 92(5) approval

92A(1)
If (as mentioned in paragraph 92(5)(ca)) a trustee's approval under section 26 (a `section 26 approval') contains an approval of the trustee for the purposes of subsection 92(5) (a `subsection 92(5) approval'):

(a) the Commissioner may specify conditions in the section 26 approval that relate to the subsection 92(5) approval; and

(b) for the purposes of sections 27A, 27B, 28 and 29, any conditions so specified are taken to be conditions to which the section 26 approval is subject.

92A(2)
A subsection 92(5) approval contained in a section 26 approval may be varied under section 27A or 27B as if it were a condition to which the section 26 approval is subject.

This declaration is taken to have commenced on 1 July 1995.]

SECTION 92B TRANSITIONAL - FUNDS THAT LODGED A SUBSECTION 92(6) APPLICATION BEFORE 1 JULY 1995

Transitional - funds that lodged a subsection 92(6) application before 1 July 1995

92B(1)
This section applies to transitional funds (as defined in subsection (2)).

92B(2)
In this section:

(a) `transition period', in relation to a transitional fund, means the period beginning at the beginning of 1 July 1995 and ending at the end of a day which the Commissioner specifies in writing given to the trustee of the fund;

(b) `transitional fund' means a fund:

(i) to which subsection 92(4) applies; and

(ii) the trustee of which lodged an application for an approval under subsection 92(6) before 1 July 1995.

92B(3)
If section 90 applied to a transitional fund at the end of 30 June 1995, the fund does not have to comply with subsection 92(4) during the transition period if:

(a) the fund complies with section 90 during the whole of the transition period; or

(b) the fund complies with section 90 during part of the transition period, and with subsection 92(4) during the remainder of the transition period.

92B(4)
If section 90 did not apply to a transitional fund at the end of 30 June 1995, the fund does not have to comply with subsection 92(4) during the transition period.

92B(5)
As soon as reasonably practicable after 14 July 1995, the Commissioner must specify in writing to the trustee of each transitional fund a day for the purposes of paragraph (2)(a). When doing so, the Commissioner must take into consideration the time reasonably needed by the fund to make arrangements to comply with subsection 92(4).

This declaration is taken to have commenced on 1 July 1995.]

SECTION 93 POST-30 JUNE 1995 RULES - FUNDS WITH MORE THAN 49 MEMBERS

93(1) Application.

This section applies to a standard employer-sponsored fund with more than 49 members.

93(2) Post-30 June 1995.

This section applies on and after 1 July 1995.

93(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

(c) each prescribed policy committee must consist of equal numbers of employer representatives and member representatives.

View history note

93(4) Non-public offer funds.

If the fund is not a public offer superannuation fund, the fund must comply with the basic equal representation rules.

93(5) Transitional.

If, at a particular time, the number of members of a fund increases:

(a)

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from a number less than 7 to 50 or more; or

(b)

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from a number greater than 6, but less than 50, to 50 or more (a paragraph (b) fund );

then:

(c) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and

(d) 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; and

(e) for a paragraph (b) fund - despite subsection 92(1), the fund must comply with subsection 92(3) or (4) during the period of time referred to in paragraph (d).

View history note

SECTION 93A A TRUSTEE WHO IS AN EMPLOYER-SPONSOR OF A FUND MAY STILL BE AN INDEPENDENT TRUSTEE

93A(1) [Requirements for independent trustee]

For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer-sponsor of the fund will be an independent trustee of the fund:

(a) if the trustee satisfies all the requirements of the definition of independent trustee in section 10; or

(b) if:

(i) the trustee together with any other employer-sponsors of the fund who are associates of the trustee are employer-sponsors of not more than the allowable percentage of the members of the fund; and

(ii) the value of the accrued benefits of those members of the fund who have as an employer-sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and

(iii) the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of independent trustee in section 10.

[ CCH Note: MODIFICATION DECLARATION No 1 of 2009 revokes MODIFICATION DECLARATION No 24 made on 21 June 2002. MODIFICATION DECLARATION No 2 of 2009 remakes MODIFICATION DECLARATION No 24 in substantially identical form.

MODIFICATION DECLARATION No 1 of 2009 reads:

I, Keith David Chapman , a delegate of APRA, under section 335 of the Superannuation Industry Supervision (Act) 1993 (the Act), REVOKE Modification Declaration No. 24 (Gazetted as Modification Declaration No. 25) made on 21 June 2002. This revocation comes into force on 20 October 2009.

Dated 7 October 2009

MODIFICATION DECLARATION No 2 of 2009 reads:

I, Keith David Chapman, a delegate of APRA, under section 332 of the Superannuation Industry (Supervision) Act 1993 (the Act), DECLARE that section 93A of the Act has effect in relation to the class of persons described in the attached Schedule, as if it were modified in the manner specified in the attached Schedule.

This declaration comes into force on 20 October 2009.

Dated 7 October 2009

Schedule - the class of persons to whom this declaration applies

Public offer superannuation funds and their trustees.

Schedule - the manner in which the specified modifiable provisions are modified

Omit subsection 93A(1) and substitute:

93A(1)
For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer-sponsor of the fund or an associate of an employer-sponsor of the fund will be an independent trustee of the fund if:

(a) the trustee together with any employer-sponsors of the fund who are associates of the trustee are not employer-sponsors of more than the allowable percentage of the members of the fund; and

(b) the value of the accrued benefits of those members of the fund who have as an employer-sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and

(c) the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of independent trustee in section 10.

MODIFICATION DECLARATION No 24, which was in substantially identical terms to MODIFICATION DECLARATION No 2 of 2009, was in force from 1 July 2002 until it was revoked by MODIFICATION DECLARATION No 1 of 2009 from 20 October 2009.]

93A(2) [Allowable percentage of members of fund]

The allowable percentage of the members of the fund is 10% or such higher percentage as is approved by APRA by notice in writing given to the trustee.

View history note

93A(3) [Allowable percentage of value of assets]

The allowable percentage of the value of the assets of the fund is 10% or such higher percentage as is approved by APRA by notice in writing given to the trustee.

View history note

93A(4) [Approval of higher percentage]

If APRA approves a higher percentage under subsection (2) or (3), the approval may be subject to such conditions (if any) as are specified in the notice.

View history note

93A(5) [Variation of approval]

An approval, including any conditions to which the approval is subject, may be varied at any time by APRA by notice in writing given to the trustee.

View history note

93A(6) [Circumstances to be considered for approval]

APRA may only exercise the power conferred under subsection (2) or (3) after considering:

(a) the effect that the approval of a higher percentage will have on the likelihood of the trustee performing its functions independently and impartially; and

(b) all other relevant circumstances.

View history note

PART 10 - PROVISIONS APPLYING ONLY TO APPROVED DEPOSIT FUNDS

SECTION 94

94 OBJECT OF PART
The object of this Part is to set out rules about borrowing by the trustees of approved deposit funds.

SECTION 95 BORROWING

95(1) [Prohibition]

Except with the approval of APRA under subsection (2) or except as provided by subsection (3), the trustee of an approved deposit fund must not borrow money.

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95(2) [APRA may approve borrowing]

APRA may approve a borrowing by the trustee of an approved deposit fund if the trustee satisfies APRA that special circumstances exist that justify the borrowing.

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95(3) [Circumstances where borrowing allowed]

Subsection (1) does not prohibit the trustee of an approved deposit fund from borrowing money if:

(a) the purpose of the borrowing is to enable the trustee to cover settlement of a transaction for the acquisition of any of the following:

(i) bonds, debentures, stock, bills of exchange or other securities;

(ii) shares in a company;

(iii) units in a unit trust;

(iv) futures contracts;

(v) forward contracts;

(vi) interest rates swap contracts;

(vii) currency swap contracts;

(viii) forward exchange rate contracts;

(ix) forward interest rate contracts;

(x) a right or option in respect of such a security, share, unit, contract or policy;

(xi) any similar financial instrument;

(xii) foreign currency; and

(b) both:

(i) at the time the relevant investment decision was made, it was likely that the borrowing would not be needed; and

(ii) the borrowing is not taken, under a determination made, by legislative instrument, by APRA, to be exempt from this paragraph; and

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(c) the period of the borrowing does not exceed 7 days; and

(d) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund.

View history note

95(4)
(Repealed by No 154 of 2007)

View history note

95(5) [Civil penalty]

Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences ofcontravening, or of being involved in a contravention of, that subsection.

PART 11 - PROVISIONS APPLYING ONLY TO POOLED SUPERANNUATION TRUSTS

SECTION 96

96 OBJECT OF PART
The object of this Part is to set out special rules applying only to pooled superannuation trusts.

SECTION 97 BORROWING

97(1) [Prohibition]

Subject to subsection (2), the trustee of a pooled superannuation trust must not borrow money.

97(2) [Payment to beneficiary]

Subsection (1) does not prohibit the trustee of a pooled superannuation trust from borrowing money if:

(a) the purpose of the borrowing is to enable the trustee to make a payment to a beneficiary in the trust which the trustee is required to make by law or by the governing rules and which, apart from the borrowing, the trustee would not be able to make; and

(b) the period of the borrowing does not exceed 90 days; and

(c) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the trust.

97(3) [Transaction settlements]

Subsection (1) does not prohibit the trustee of a pooled superannuation trust from borrowing money if:

(a) the purpose of the borrowing is to enable the trustee to cover settlement of a transaction for the acquisition of any of the following:

(i) bonds, debentures, stock, bills of exchange or other securities;

(ii) shares in a company;

(iii) units in a unit trust;

(iv) futures contracts;

(v) forward contracts;

(vi) interest rates swap contracts;

(vii) currency swap contracts;

(viii) forward exchange rate contracts;

(ix) forward interest rate contracts;

(x) a right or option in respect of such a security, share, unit, contract or policy;

(xi) any similar financial instrument;

(xii) foreign currency; and

(b) both:

(i) at the time the relevant investment decision was made, it was likely that the borrowing would not be needed; and

(ii) the borrowing is not taken, under a determination made, by legislative instrument, by APRA, to be exempt from this paragraph; and

View history reference

(c) the period of the borrowing does not exceed 7 days; and

(d) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the trust.

View history note

97(4)
(Repealed by No 154 of 2007)

View history note

SECTION 98

98 LENDING TO UNIT-HOLDERS PROHIBITED
The trustee or an investment manager of a pooled superannuation trust must not:

(a) lend money of the trust to a beneficiary of the trust; or

(b) give any other financial assistance using the resources of the trust to a beneficiary of the trust.

SECTION 99

99 CIVIL PENALTY PROVISIONS
Subsection 97(1) and section 98 are civil penalty provisions 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, either of them.

PART 11A - GENERAL FEES RULES

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SECTION 99A

99A APPLICATION

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The rules set out in this Part do not apply to self managed superannuation funds.

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SECTION 99B NO ENTRY FEES

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99B(1)
The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not charge entry fees.

99B(2)
An entry fee is a fee, other than a buy-sell spread, that relates, directly or indirectly, to the issuing of a beneficial interest in a superannuation entity to a person who is not already a member of the entity.

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SECTION 99BA NO EXIT FEES

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99BA(1)
The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not charge exit fees, except in circumstances prescribed by the regulations.

99BA(2)
An exit fee is a fee, other than a buy-sell spread, that relates to the disposal of all or part of a member's interests in a superannuation entity.

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SECTION 99C BUY-SELL SPREADS AND SWITCHING FEES TO BE CHARGED ON A COST RECOVERY BASIS

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99C(1)

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If the trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund charge a buy-sell spread or a switching fee, the fee must be no more than it would be if it were charged on a cost recovery basis.

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99C(2)

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The regulations may prescribe the way in which a buy-sell spread or a switching fee charged on a cost recovery basis is to be worked out.

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SECTION 99D

99D COST OF ADVICE TO EMPLOYERS NOT TO BE BORNE BY MEMBERS

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The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not include in any fee charged to any member of the fund an amount that relates to costs incurred by any person, directly or indirectly, in relation to personal advice provided by any person to an employer of one or more members of the fund.

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SECTION 99E

99E FAIR AND REASONABLE ATTRIBUTION OF COSTS BETWEEN CLASSES OF BENEFICIAL INTEREST IN A REGULATED SUPERANNUATION FUND

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If there is more than one class of beneficial interest in a regulated superannuation fund, the trustee, or the trustees, of the fund must attribute the costs of the fund between the classes fairly and reasonably.

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SECTION 99F COST OF FINANCIAL PRODUCT ADVICE - COLLECTIVELY CHARGED FEES

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99F(1)
The trustee or the trustees of a regulated superannuation fund must not directly or indirectly pass the cost of providing financial product advice in relation to a member of the fund (the subject member ) on to any other member of the fund, to the extent that:

(a) the advice is provided by:

(i) a trustee of the fund; or

(ii) another person acting as an employee of, or under an arrangement with, a trustee or trustees of the fund; and

(b) the advice is personal advice; and

(c) the advice is provided in any of the following circumstances:

(i) the subject member has not yet acquired a beneficial interest in the fund when the advice is given, and the advice relates to whether the subject member should acquire such an interest;

(ii) the advice relates to a financial product that is not a beneficial interest in the fund, a related pension fund for the member and the fund, a related insurance product for the member and the fund or a cash management facility within the fund;

(iii) the advice relates to whether the subject member should consolidate that member's beneficial interests in 2 or more superannuation entities into a beneficial interest in a single superannuation entity;

(iv) at the time the advice is provided, the subject member reasonably expects that a person mentioned in subparagraph (a)(i) or (ii) will periodically review the advice, provide further personal advice or monitor whether recommendations in the original or any later advice are implemented and the results of that implementation;

(v) other prescribed circumstances.

99F(2)
If:

(a) under the governing rules of a regulated superannuation fund (the first fund ):

(i) a member of another regulated superannuation fund (the second fund ) is entitled to become a member of the first fund on the satisfaction of a condition of release of benefits specified in a standard made under paragraph 31(2)(h); and

(ii) on becoming a member of the first fund, a pension would be payable out of the assets of the first fund to the member; and

(b) the RSE licensee for the first fund is, or is an associate of, the RSE licensee of the second fund;

then the first fund is a related pension fund of the second fund for a member of the second fund in relation to whom paragraph (a) is satisfied.

99F(3)
If:

(a) the trustee, or the trustees, of a regulated superannuation fund provide a benefit to members of the fund who hold a particular class of beneficial interest in the fund by taking out insurance; and

(b) a person holds a beneficial interest of that class in the fund, or is considering acquiring a beneficial interest of that class in the fund;

a life policy or contract of insurance by which that benefit is or would be provided is a related insurance product for the person and the fund.

99F(4)
In this section:

cash management facility
has the same meaning as it has for the purposes of subsection 946B(1) of the Corporations Act 2001.

life policy
has the same meaning as in the Life Insurance Act 1995.

View history note

SECTION 99FA COST OF FINANCIAL PRODUCT ADVICE - FEES CHARGED TO MEMBER CONCERNED

View history reference

99FA(1)
The trustee or the trustees of a regulated superannuation fund must not charge against a member's interest in the fund the cost of financial product advice provided to the member unless:

(a) the financial product advice is personal advice; and

(c) the trustee or trustees charge the cost in accordance with the terms of a written request or written consent of the member; and

(d) if the arrangement under which the advice is provided is an ongoing fee arrangement - any applicable requirements of Division 3 of Part 7.7A of the Corporations Act 2001 are met in relation to the arrangement and, if relevant, the deduction of ongoing fees; and

(e) if the arrangement under which the advice is provided is not an ongoing fee arrangement - the request or consent satisfies the requirements in subsection (2); and

(f) the trustee or trustees have the request or consent, or a copy of it.

Note 1:

The other obligations under this Act, including to act in the best financial interests of the beneficiaries (see paragraph 52(2)(c)) and to comply with the sole purpose test (see section 62), continue to apply to trustees.

Note 2:

See also Division 5 of Part 2C of this Act for fee rules for MySuper products.

Payment of advice fees under an arrangement other than an ongoing fee arrangement

99FA(2)
For the purposes of paragraph (1)(e), the written request or written consent must include the following:

(a) the name and contact details of the member;

(b) the name and contact details of the provider of the financial product advice;

(c) the name of the fund from which the cost of the advice is requested to be paid;

(d) a brief description of the services the member is entitled to receive under the arrangement;

(e) a request from, or consent by, the member for the cost of the advice to be paid by the trustee and charged against the member's interest in the fund;

(f) either:

(i) the amount to be paid for the advice; or

(ii) if the amountto be paid for the advice cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate;

(g) either:

(i) the amount to be charged against the member's interest in the fund; or

(ii) if the amount to be charged against the member's interest in the fund cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate;

(h) the member's signature;

(i) the date the request is made;

(j) any other information prescribed by the regulations.

99FA(3)
For the purposes of paragraph (2)(e), the Minister may, in writing, approve a form.

99FA(4)
If the Minister has approved a form under subsection (3), a request or consent for the purposes of paragraph (2)(e) must be in the approved form.

Collectively charged fees not covered

99FA(5)
Subsection (1) does not apply if the cost of providing financial product advice is shared between the member mentioned in subsection (1) and other members of the fund.

Note:

For rules on collectively charged fees for the provision of financial product advice, see section 99F.

View history note

SECTION 99G FEE CAP ON LOW BALANCES

View history reference

Application

99G(1)
This section applies if:

(a) the trustee, or trustees, of a regulated superannuation fund offer a choice product or MySuper product; and

(b) a member of the fund:

(i) holds the product on the last day of a year of income of the fund and, on that day, has an account balance with the fund that relates to the product that is less than $6,000; or

(ii) holds the product on one or more days during a year of income of the fund and, on the last of those days, has an account balance with the fund that relates to the product that is less than $6,000.

View history note

Fee cap for a member who holds the product for the whole year

99G(2)
If the member holds the product for the whole year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the year the total combined amount of which exceeds the amount worked out as follows:

Fee cap percentage

Member's account balance for the product on the last day of the year

where:

fee cap percentage
means the percentage prescribed under subsection (4).

member's account balance for the product on the last day of the year
means so much of the member's account balance with the fund on that day as relates to the product.

Capped fees and costs

99G(3)
For the purposes of this section, the following are capped fees and costs charged to the member in relation to the product for the year:

(a) administration fees charged to the member in relation to the product for the year;

(b) investment fees charged to the member in relation to the product for the year;

(c) an amount worked out in accordance with the regulations (if any) that:

(i) is not charged to the member as a fee; and

(ii) is incurred by the trustee or the trustees of the fund in relation to the year; and

(iii) relates to the administration of the fund or the investment of the assets of the fund.

Fee cap percentage

99G(4)
The regulations may prescribe, for the purposes of this section, a fee cap percentage of no more than 3%.

Fee cap for member who holds the product for part of the year

99G(5)
If the member holds the product for only part of the year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the year the total combined amount of which exceeds the amount worked out as follows:

Fee cap for the whole year	×	Number of days during the year on which member held the product
		365

where:

fee cap for the whole year
means the total combined amount of capped fees and costs that could be charged to the member in relation to the product for the year under subsection (2), if:

(a) the member held the product for the whole of the year; and

(b) so much of the member's account balance with the fund on the last day on which the member held the product during the year as relates to the product were the member's account balance for the product on the last day of the year.

Refund of excess

99G(6)
The trustee or trustees of the regulated superannuation fund are taken to have complied with this section if any amount by which the total combined amount of capped fees and costs charged to the member in relation to the product for the year exceeds the maximum permitted under subsection (2) or (5) is refunded to the member within 3 months after the end of the year.

No breach of section 99E

99G(7)
To avoid doubt, the trustee or trustees of the regulated superannuation fund do not breach section 99E by complying with this section.

View history note

PART 12 - DUTIES OF TRUSTEES AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES

SECTION 100

100 OBJECT OF PART
The object of this Part is to impose special duties on the trustees and investment managers of superannuation entities.

SECTION 101 DISPUTE RESOLUTION SYSTEMS

101(1)

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Each trustee of a regulated superannuation fund other than a self managed superannuation fund or of an exempt public sector superannuation scheme that has elected to join the AFCA scheme, or of an approved deposit fund:

(a)

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must be a member of the AFCA scheme; and

(b) must have an internal dispute resolution procedure that complies with the standards, and requirements, mentioned in subparagraph 912A(2)(a)(i) of the Corporations Act 2001 in relation to financial services licensees; and

(c)

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must give to ASIC the same information as the trustee would be required to give under subparagraph 912A(1)(g)(ii) of the Corporations Act 2001 if the trustee were a financial services licensee; and

(d)

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must ensure that written reasons are given, in accordance with requirements specified under subsection (1B) of this section, for any decision of the trustee (or failure by the trustee to make a decision) relating to a complaint.

Note:

Part 7.10A of the Corporations Act 2001 deals with situations where complaints are not resolved by the trustee.

[ CCH Note: Legislative instruments have prescribed the standards and requirements for the purpose of s 101(1)(b) and the requirements relating to written reasons as mentioned in s 101(1)(d). See the CCH Note under s 101(1B).]

[ CCH Note: ASIC Corporations (Internal Dispute Resolution Data Reporting) Instrument 2022/205, as amended (www.legislation.gov.au/Series/F2022L00430), has been made for the purpose of s 101(1)(c), effective 1 April 2022. This instrument will be repealed on 1 April 2027.]

View history note

101(1A)

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However, paragraphs (1)(a) to (c) do not apply to a trustee if the trustee is required under the Corporations Act 2001 to have a dispute resolution system complying with subsection 912A(2) or 1017G(2) of that Act.

View history note

101(1B)

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ASIC may, by legislative instrument, specify for the purposes of paragraph (1)(d) any or all of the following:

(a) the persons who must be given written reasons;

(b) the matters that must be included in those reasons;

(c) the times by which those reasons must be given;

(d) the circumstances that constitute a failure to make a decision.

[ CCH Note: ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98 (F2020L00962), as amended by ASIC Corporations, Credit and Superannuation (Amendment) Instrument 2021/753 (F2021L01343), provides as below: The instruments apply in relation to a complaint received on or after 5 October 2021 by a financial firm.

PART 1 - PRELIMINARY

4 Definitions
4
In this instrument:
…

complaint
has the meaning given by paragraphs 27 - 32 of Regulatory Guide 271.

…

financial firm
means:

(a) a financial services licensee;

(b) a person to whom section 1017G of the Corporations Act applies;

(c) a credit licensee;

(d) an unlicensed carried over instrument lender;

(e) a trustee of a regulated superannuation fund or of an approved deposit fund;

(f) an RSA provider.

financial services licensee
means a person who holds an Australian financial services licence.

…

Regulatory Guide271
means ASIC Regulatory Guide 271 Internal Dispute Resolution as published on 2 September 2021.

…

RSA provider
has the same meaning as in the RSA Act.

…

RSA Act
means the Retirement Savings Account Act 1997.

PART 2 - STANDARDS AND REQUIREMENTS

5 Standards and requirements for internal dispute resolution procedures

5(1)
ASIC makes and approves the standards and requirements mentioned in the following paragraphs and tables of Regulatory Guide 271:

(a) in " Definition of complaint ":

(i) paragraphs 27 - 29 (including the note);

(ii) paragraph 32 (including the notes);

(b) in " Definition of complainant ":

(i) paragraph 39 (including the note);

(ii) paragraphs 41 and 42;

(c) in " Outsourcing IDR processes ":

(i) paragraph 48;

(d) in " What an IDR response must contain ":

(i) paragraphs 53 (including the notes) and 54;

(e) in " Maximum timeframes for an IDR response ":

(i) paragraphs 56 - 60 and Table 2;

(ii) paragraphs 64 - 66 (including the notes) and paragraph 69;

(iii) paragraph 71;

(iv) paragraph 75;

(v) paragraphs 76 - 78;

(vi) paragraphs 79;

(vii) paragraphs 81 - 85 (including the notes);

(viii) paragraphs 86, 89, 92 and 93;

(f) in " The role of customer advocates ":

(i) paragraphs 109 and 110 (including Note 1);

(g) in " Links between the IDR process and AFCA ":

(i) paragraphs 111 and 112;

(h) in " How to manage systemic issues ":

(i) paragraphs 118 - 120 (including the note);

(j) in " Enabling complaints ":

(i) paragraph 134;

(ii) paragraph 141;

(k) in " Resourcing ":

(i) paragraphs 142 and 143;

(ii) paragraphs 146 and 147;

(l) in " Responsiveness ":

(i) paragraphs 163 and 165;

(m) in " Policy and procedures ":

(i) paragraph 172;

(n) in " Data collection, analysis and internal reporting ":

(i) paragraph 179 and 183.

5(2)
A word or expression that is defined in Regulatory Guide 271 has the same meaning for the purposes of the paragraphs and tables of Regulatory Guide 271 mentioned in subsection (1).

6 Requirements relating to written reasons

6(1)
ASIC specifies the requirements mentioned in subsection (2) in relation to written reasons:

(a) for the purposes of paragraph 47(1)(d) of the RSA Act - for any decision of the RSA provider (or failure by the RSA provider to make a decision) relating to a complaint; and

(b) for the purposes of paragraph 101(1)(d) of the SIS Act - for any decision of a trustee of a regulated superannuation fund other than a self managed superannuation fund or of an approved deposit fund (or failure by the trustee to make a decision) relating to a complaint.

6(2)
ASIC specifies the requirements mentioned in the following paragraphs of Regulatory Guide 271:

(a) in " What an IDR response must contain ":

(i) paragraphs 53 (including the notes) and 54;

(b) in " Maximum timeframes for an IDR response ":

(i) paragraphs 56 - 60 and Table 2;

(ii) paragraphs 64 - 66 (including the notes) and paragraph 69;

(iii) paragraph 75;

(iv) paragraph 79;

(v) paragraphs 81 - 85 (including the notes).

6(3)
A word or expression that is defined in Regulatory Guide 271 has the same meaning for the purposes of the paragraphs of Regulatory Guide 271 mentioned in subsection (2).

]

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101(2)

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A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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101(3)
(Repealed by No 76 of 2023)

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SECTION 102 DUTY TO SEEK INFORMATION FROM INVESTMENT MANAGER

102(1)

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If the trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the entity, enter into an agreement with an investment manager under which money of the entity will be placed under the control of the investment manager, the trustee, or the trustees, must:

(a) ensure that the agreement contains adequate provision to enable the trustee, or the trustees, of the entity to require the investment manager from time to time:

(i) to provide appropriate information as to the making of, and return on, the investments; and

(ii) to provide such information as is necessary to enable the trustee, or the trustees, of the entity to assess the capability of the investment manager to manage the investments of the entity; and

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(b) whenever it is necessary or desirable to do so, require the investment manager to provide the information.

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102(2)

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If:

(a) the trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the entity, entered into an agreement before the commencement of this section with an investment manager under which money of the entity would be placed under the control of the investment manager; and

(b) the agreement does not contain a provision of a kind mentioned in paragraph (1)(a);

the trustee, or the trustees, of the entity must as soon as practicable ensure that:

(c) the agreement is amended so as to contain such a provision; or

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(d) if the investment manager refuses to agree to such an amendment - the agreement is terminated.

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102(3)

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The trustee of asuperannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the superannuation entity:

(a) may terminate an agreement under paragraph (2)(d) despite anything in the agreement; and

(b) are not under any liability to the investment manager because of the termination.

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102(4)

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A person who intentionally or recklessly contravenes subsection (1) or (2) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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SECTION 103 DUTY TO KEEP MINUTES AND RECORDS

103(1)

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If a superannuation entity has a group of individual trustees, the trustees must keep, and retain for at least 10 years, minutes of all meetings of the trustees at which matters affecting the entity were considered.

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103(2)
If there is only one trustee of a superannuation entity:

(a) if the trustee is a corporate trustee - the directors of the trustee must keep, and retain for at least 10 years, minutes of all meetings of the directors at which matters affecting the entity were considered; or

(b) if the trustee is an individual - the trustee must keep, and retain for at least 10 years, a record of all decisions made by the trustee in respect of matters affecting the entity.

103(2A)

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The trustee or trustees must also retain for at least 10 years an election, or a copy of an election, under section 71E.

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103(3)

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A person commits an offence if the person contravenes subsection (1), (2) or (2A). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

Note 3:

Section 166 imposes an administrative penalty for a contravention of subsection (1), (2) or (2A) in relation to a self managed superannuation fund.

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SECTION 104 DUTY TO KEEP RECORDS OF CHANGES OF TRUSTEES

104(1)

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Each trustee of a superannuation entity must ensure that up-to-date records of:

(a) all changes of trustees of the entity; and

(b) all changes of directors of any corporate trustee of the entity; and

(c) all consents given under section 118;

are kept and retained for at least 10 years.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

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104(2)

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A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 104A TRUSTEES ETC OF SELF MANAGED SUPERANNUATION FUND - RECOGNITION OF OBLIGATIONS AND RESPONSIBILITIES

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104A(1)
This section applies to a person if:

(a) he or she becomes, after 30 June 2007:

(i) the trustee of a self managed superannuation fund; or

(ii) a director of a body corporate that is the trustee of a self managed superannuation fund; or

(b) he or she is a trustee of such a fund or a director of such a body corporate, and another person becomes, after 30 June 2007, a trustee of the fund or a director of the body corporate; or

(c) he or she is a trustee of such a fund or a director of such a body corporate and undertakes a course of education in compliance with an education direction.

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104A(2)
The person must:

(a) if paragraph (1)(a) applies - sign a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund (or as director of a body corporate that is such a trustee), no later than 21 days after becoming such a trustee or director; and

(b) if paragraph (1)(b) applies - ensure that the other person signs a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund (or as director of a body corporate that is such a trustee), within 21 days after becoming such a trustee or director; and

(ba) if paragraph (1)(c) applies - sign a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund, or as director of a body corporate that is such a trustee (as appropriate), no later than 21 days after completing the course of education; and

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(c) ensure that the declaration is retained so long as it is relevant, and in any case for at least 10 years; and

(d) make the declaration available for inspection by a member of the staff of the Regulator if requested to do so by a member of that staff.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (2).

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104A(3)

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A person commits an offence if the person contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 105 DUTY TO KEEP REPORTS

105(1)

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Each trustee of a regulated superannuation fund or of an approved deposit fund must ensure that:

(a) copies of all member or beneficiary reports are kept, and retained so long as they are relevant and in any event for at least 10 years; and

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(b) those copies are made available for inspection by a member of the staff of the Regulator if requested to do so by a member of that staff.

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Note:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

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105(2)

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A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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105(3)

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In this section:

member or beneficiary report
means a report:

(a) given under this Act, the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the governing rules; and

(b) given in the same form (apart from differences relating to the names and addresses of the persons to whom the notices were given):

(i) in the case of a regulated superannuation fund - to all members of the fund, or to all members included in a particular class of members; or

(ii) in the case of an approved deposit fund - to all beneficiaries in the fund, or to all beneficiaries included in a particular class of beneficiaries.

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SECTION 106 DUTY TO NOTIFY THE REGULATOR OF SIGNIFICANT ADVERSE EVENTS

106(1)

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If a trustee of a superannuation entity becomes aware of the occurrence of an event having a significant adverse effect on the financial position of the entity, the trustee must ensure that a trustee of the entity immediately notifies the Regulator in writing of the event.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

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106(1A)

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Subsection (2) applies if a trustee of a superannuation entity is required by regulations made for the purposes of paragraph 1017DA(1)(a) of the Corporations Act 2001 to provide fund information (within the meaning of regulations made for the purposes of this subsection) to holders of interests in the entity.

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106(2)

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An event has a significant adverse effect on the financial position of the entity if:

(a) the event occurs before that fund information is provided; and

(b) as a result of the event, a trustee of the entity will not, or may not, be able, at a time occurring before the entity gives the fund information, to make payments to beneficiaries as and when the obligation to make those payments arises.

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106(3)
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.

SECTION 106A DUTY TO NOTIFY COMMISSIONER OF TAXATION OF CHANGE IN STATUS OF ENTITY

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106A(1) Trustee's duty to notify Commissioner of Taxation.

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If a trustee of a superannuation entity:

(a) has knowledge that the superannuation entity has ceased to be a self managed superannuation fund; or

(b) has knowledge that the superannuation entity has become a self managed superannuation fund since first becoming a superannuation entity;

the trustee must ensure that a written notice is given to the Commissioner of Taxation.

Note 1:

A trustee of a fund that was already a self managed superannuation fund when a trustee, or the trustees, of the fund made an election under section 19 does not have to ensure that a notice is given to the Commissioner of Taxation at that time, because the fund became a self managed superannuation fund before (not since) becoming a superannuation entity.

Note 2:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

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106A(2) Timing of notice.

A notice under subsection (1) must be given as soon as practicable, and not later than 21 days, after the trustee first has knowledge that the superannuation fund has ceased to be, or has become, a self managed superannuation fund.

106A(3) Offence.

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A person who contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

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SECTION 107 DUTY OF TRUSTEE OF EMPLOYER-SPONSORED FUND TO ESTABLISH PROCEDURE FOR APPOINTING MEMBER REPRESENTATIVES

107(1)

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This section applies if the trustee, or the trustees, of a standard employer-sponsored fund (other than a superannuation fund with no more than 6 members) are required by law:

(a) if the trustee is a single corporate trustee - to have member representatives on the board of directors of the trustee; or

(b)

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if there is a group of individual trustees - to have member representatives included in the group; or

(c) in any other case - to have member representatives on a policy committee of the fund.

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107(2)

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Each trustee of the fund must ensure that:

(a)

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rules are established (whether by inclusion in the governing rules or otherwise):

(i) setting out a procedure for appointing the member representatives; and

(ii) ensuring that member representatives so appointed can only be removed by the same procedure as that by which they were appointed, except in the event of:

(A) death; or

(B) mental or physical incapacity; or

(C) retirement; or

(D) termination of employment; or

(DA) the member representative no longer meeting one or more of the criteria for fitness and propriety relevant to the member representative set out in the prudential standards; or

(E) the member representative becoming a disqualified person within the meaning of Part 15; or

(F) suspension or removal under Part 17; or

(G) other prescribed circumstances; and

(b)

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those rules are published in such a way as will make members of the fund aware of the procedure for appointment and removal of member representatives.

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107(3)

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A trustee is guilty of an offence if the trustee contravenes subsection (2).

Penalty: 100 penalty units.

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107(4)

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A trustee is guilty of an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 108 DUTY OF TRUSTEE OF EMPLOYER-SPONSORED FUND TO ESTABLISH PROCEDURE FOR APPOINTING INDEPENDENT TRUSTEE OR INDEPENDENT MEMBER OF BOARD OF DIRECTORS OF CORPORATE TRUSTEE

108(1) [Application of section]

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This section applies if a standard employer-sponsored fund (other than a self managed superannuation fund) relies on subsection 89(2) in order to comply with the basic equal representation rules. (That subsection deals with an additional independent trustee or an additional independent director of a corporate trustee.)

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108(2) [Rules to be established]

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Each trustee of the fund must ensure that:

(a) rules are established (whether by inclusion in the governing rules or otherwise) ensuring that the additional independent trustee or additional independent director, as the case may be, can only be removed by the same procedure as that by which the additional independent trustee or additional independent director was appointed, except in the event of:

(i) death; or

(ii) mental or physical incapacity; or

(iia) the additional independent trustee or additional independent director no longer meeting one or more of the criteria for fitness and propriety relevant to the independent trustee or independent director set out in the prudential standards; or

(iii) the additional independent trustee or additional independent director, as the case may be, becoming a disqualified person within the meaning of Part 15; or

(iv) suspension or removal under Part 17; or

(v) other prescribed circumstances; and

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(b) those rules are published in such a way as will make members of the fund aware of the procedure for removal of the additional independent trustee or additional independent director, as the case may be.

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108(3) [Offence and penalty]

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A trustee is guilty of an offence if the trustee contravenes subsection (2).

Penalty: 100 penalty units.

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108(4) [Strict liability]

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A trustee is guilty of an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 108A TRUSTEE'S DUTY TO IDENTIFY ETC. MULTIPLE SUPERANNUATION ACCOUNTS OF MEMBERS

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108A(1)
Each trustee of a superannuation entity (other than the trustee of a pooled superannuation trust or a self managed superannuation fund) must ensure that rules are established, which:

(a) set out a procedure for identifying when a member of the superannuation entity has more than one superannuation account in the superannuation entity; and

(b) require the trustee to carry out the procedure to identify such members at least once each financial year; and

(c) if the member has 2 or more superannuation accounts in the superannuation entity - require the trustee to merge the accounts so that the member has only one account balance in respect of those accounts, if the trustee reasonably believes that it is in the best interests of the member to do so; and

(d) provide that fees are not payable (other than a buy-sell spread) for any merger of superannuation accounts that occurs as a result of paragraphs (a) to (c).

108A(2)
The requirement in paragraph (1)(c) does not apply if:

(a) it is not practicable in the circumstances to merge the member's superannuation accounts; or

(b) one or more of the superannuation accounts is a defined benefit interest or income stream.

108A(3)

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A superannuation account is a record of the member's benefits, in relation to a superannuation entity in which the member has an interest, which is recorded separately:

(a) from other benefits of the member in relation to the entity (if any); and

(b) from other benefits of any other member in relation to the entity.

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108A(4)
In determining, for the purpose of paragraph (1)(c), whether it is in the best interests of a member to merge his or her superannuation accounts, the trustee must consider the total amount of fees and charges payable by the member in respect of all of his or her accounts in the superannuation entity (including any fees and charges payable by the member for insurance provided in respect of all of his or her accounts).

108A(5)
A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 109 INVESTMENTS OF SUPERANNUATION ENTITY TO BE MADE AND MAINTAINED ON ARM'S LENGTH BASIS

109(1) [Arm's length dealing required]

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A trustee or investment manager of a superannuation entity must not invest in that capacity unless:

(a) the trustee or investment manager, as the case may be, and the other party to the relevant transaction are dealing with each other at arm's length in respect of the transaction; or

(b) both:

(i) the trustee or investment manager, as the case may be, and the other party to the relevant transaction are not dealing with each other at arm's length in respect of the transaction; and

(ii) the terms and conditions of the transaction are no more favourable to the other party than those which it is reasonable to expect would apply if the trustee or investment manager, as the case may be, were dealing with the other party at arm's length in the same circumstances.

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109(1A) [Arm's length dealing with other parties]

If:

(a) a trustee or investment manager of a superannuation entity invests in that capacity; and

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(b) at any time during the term of the investment the trustee or investment manager is required to deal in respect of the investment with another party that is not at arm's length with the trustee or investment manager;

the trustee or investment manager must deal with the other party in the same manner as if the other party were at arm's length with the trustee or investment manager.

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109(2) [Civil penalty]

Subsections (1) and (1A) are civil penalty provisions 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, those subsections.

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109(3) [Validity of transaction]

A contravention of subsection (1) or (1A) does not affect the validity of a transaction.

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(Repealed) PART 13 - ACCOUNTS, STATEMENTS AND AUDITS OF SUPERANNUATION ENTITIES

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110 (Repealed) SECTION 110 OBJECT OF PART
(Repealed by No 154 of 2007)

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111 (Repealed) SECTION 111 ACCOUNTING RECORDS
(Repealed by No 154 of 2007)

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112 (Repealed) SECTION 112 ACCOUNTS AND STATEMENTS
(Repealed by No 154 of 2007)

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113 (Repealed) SECTION 113 AUDIT OF ACCOUNTS AND STATEMENTS
(Repealed by No 154 of 2007)

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PART 14 - OTHER PROVISIONS APPLYING TO SUPERANNUATION ENTITIES

SECTION 114

114 OBJECT OF PART
The object of this Part is to set out various rules applying to superannuation entities.

SECTION 115 TRUSTEE OF SUPERANNUATION ENTITY MAY MAINTAIN RESERVES

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115(1)

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The trustee of a superannuation entity may maintain a reserve of the entity for a particular purpose, unless the governing rules of the entity prohibit the maintenance of a reserve for that purpose.

Governing rules of an RSE must not prohibit reserves to cover operational risk

115(2)
The governing rules of a registrable superannuation entity must not prohibit the maintenance of a reserve to cover the operational risk relating to the entity.

115(3)
If the governing rules of a registrable superannuation entity are inconsistent with subsection (2):

(a) subsection (2) prevails; and

(b) the governing rules are invalid, to the extent of the inconsistency.

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SECTION 116

116 AGREEMENT BETWEEN TRUSTEE AND INVESTMENT MANAGER

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Despite anything in the governing rules of a superannuation entity, any provision of an agreement between a trustee of the entity and an investment manager that purports to exempt the investment manager from liability for negligence, or to limit that liability, is void.

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SECTION 117 CIRCUMSTANCES IN WHICH AMOUNTS MAY BE PAID OUT OF AN EMPLOYER-SPONSORED FUND TO AN EMPLOYER-SPONSOR

117(1)
(Repealed by No 15 of 2007)

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117(2) Excluded superannuation funds.

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This section does not apply to an excluded superannuation fund during the period:

(a) beginning on 21 October 1992; and

(b) ending immediately before the day on which subsection (2A) commenced.

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117(2A) Self managed superannuation funds.

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This section does not apply to a self managed superannuation fund if, at all times after the day on which this subsection commenced when the fund was in existence, the fund was a self managed superannuation fund.

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117(3) Basic prohibition.

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Except as provided by this section, a trustee of a standard employer-sponsored fund must not pay an amount, or permit an amount to be paid, out of the fund to a standard employer-sponsor.

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117(3A)

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Subsection (3) does not apply in circumstances where:

(a) its application would result in the acquisition of property from a person otherwise than on just terms; and

(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution.

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117(4) Exception - management services.

A reasonable amount may be paid out of any standard employer-sponsored fund to a standard employer-sponsor for services rendered in connection with the management or operation of the fund.

117(5) Exception - special procedures followed.

An amount may be paid out of a standard employer-sponsored fund to a standard employer-sponsor if the following requirements are fulfilled:

(a) apart from this section, the governing rules would require or permit the amount to be paid to the employer-sponsor;

(b)

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whichever of the following subparagraphs is applicable has been complied with:

(i) if the fund has a single corporate trustee:

(A) the directors of the trustee have, by resolution, declared their intention to pay the amount out of the fund to the employer-sponsor; and

(B) when that resolution was passed, the board of the corporate trustee complied with the basic equal representation rules under Part 9;

(ii) if the fund has a group of individual trustees:

(A) the trustees have, by resolution, declared their intention to pay the amount out of the fund to the employer-sponsor; and

(B) when that resolution was passed, the group of trustees complied with the basic equal representation rules under Part 9;

(iii) in any other case - the trustee has declared his or her intention to pay the amount out of the fund to the employer-sponsor;

(c)

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before the resolution referred to in subparagraph (b)(i) or (ii) was passed or before the declaration referred to in subparagraph (b)(iii) was made:

(i) an actuary had given a written certificate to the trustee, or the trustees, of the fund stating that, if the amount were paid, the fund would remain in a satisfactory financial position; and

(ii) the trustee, or the trustees, were satisfied that the payment of the amount and the making of the changes (if any) to the governing rules were reasonable having regard to the interests of the employer-sponsor and of the beneficiaries in the fund;

(d)

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a trustee of the fund gave notice in accordance with the governing rules to all members of the fund:

(i) stating the intention to pay the amount to the employer-sponsor; and

(ii) stating that an actuary has given a certificate to the trustee, or the trustees, of the fund as required by subparagraph (c)(i); and

(iii) setting out particulars of any changes to the governing rules that were proposed to be made if the amount were paid to the employer-sponsor;

(e)

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at the end of 3 months after the notice mentioned in paragraph (d) was given to members, the provisions of whichever of the following subparagraphs is applicable were complied with:

(i) if the fund has a single corporate trustee - the directors of the corporate trustee passed a resolution agreeing to pay the amount out of the fund to the employer-sponsor;

(ii) if the fund has a group of individual trustees - the trustees passed a resolution agreeing to pay the amount out of the fund to the employer-sponsor;

(iii) in any other case - the trustee decided to make the payment;

(f) any other requirements made by the regulations.

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117(5A)

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The requirement in paragraph (5)(d) is taken not to have been fulfilled unless the notice is given in a way that enables each trustee of the fund to be reasonably satisfied that the notice came to the attention of all the members of the fund other than members who are lost members within the meaning of the regulations.

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117(6) APRA may waive requirements.

APRA may waive any or all of the requirements specified in subsection (5) in relation to a matter occurring on or after the date of commencement of this section.

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117(7) Civil penalty provision.

Subsection (3) 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.

117(8) This section does not apply to loans to, or investments in, a standard employer-sponsor.

A reference in this section to the payment of an amount out of a standard employer-sponsored fund to a standard employer-sponsor does not include a reference to the payment of an amount by way of the making of a loan to, or an investment in, the standard employer-sponsor.

117(9)
(Repealed by No 69 of 2023)

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117(10) Definitions.

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In this section:

"complying superannuation fund"
(Repealed by No 15 of 2007)

standard employer-sponsor
, in relation to a standard employer-sponsored fund, includes:

(a) if a standard employer-sponsor is a body corporate - another body corporate that is related to the employer-sponsor; or

(b) if a standard employer-sponsor is an individual - an associate of the employer-sponsor.

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117(11)
For the purposes of this section:

(a) a reference to a standard employer-sponsored fund includes a reference to a former standard employer-sponsored fund; and

(b) a reference to a standard employer-sponsor includes a reference to a former standard employer-sponsor.

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SECTION 118

118 CONSENTS TO APPOINTMENTS
A person is not eligible for appointment as a trustee of a superannuation entity, or as a director of a corporate trustee of a superannuation entity, unless the person has consented in writing to the appointment.

PART 15 - STANDARDS FOR TRUSTEES, CUSTODIANS AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES

Division 1 - Object of Part and definition of disqualified person

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SECTION 119

119 OBJECT OF PART
The object of this Part is to set out rules about the eligibility of trustees, custodians and investment managers of superannuation entities.

SECTION 120 DISQUALIFIED PERSONS

120(1) Individuals.

For the purposes of this Part, an individual is a disqualified person if:

(a) at any time (including a time before the commencement of this section):

(i) the individual was convicted of an offence against or arising out of a law of the Commonwealth, a State, a Territory or a foreign country, being an offence in respect of dishonest conduct; or

(ii) a civil penalty order was made in relation to the person; or

(b) the person is an insolvent under administration; or

(c)

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either:

(i) to the extent that the Regulator is the Commissioner of Taxation - the Regulator has disqualified the individual under section 126A; or

(ii) to the extent that the Regulator is APRA - the Federal Court of Australia has disqualified the individual under section 126H.

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120(2) Bodies corporate.

For the purposes of this Part, a body corporate is a disqualified person if:

(a)

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the body corporate knows, or has reasonable grounds to suspect, that a person who is, or is acting as, a responsible officer of the body corporate is:

(i) for a person who is a disqualified person only because he or she was disqualified under section 126H - disqualified from being or acting as a responsible officer of the body corporate; or

(ii) otherwise - a disqualified person; or

(b) a receiver, or a receiver and manager, has been appointed in respect of property beneficially owned by the body; or

(c)

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an administrator has been appointed in respect of the body; or

(ca)

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a restructuring practitioner (within the meaning of the Corporations Act 2001) has been appointed in respect of the body; or

(d) a provisional liquidator has been appointed in respect of the body; or

(e) the body has begun to be wound up.

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120(2A)
(Repealed by No 25 of 2008)

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120(3) Convictions.

A reference in this section to a person who has been convicted of an offence includes a reference to a person in respect of whom an order has been made under section 19B of the Crimes Act 1914, or under a corresponding provision of a law of a State, a Territory or a foreign country, in relation to the offence.

120(4) Law on spent convictions does not apply.

Division 3 of Part VIIC of the Crimes Act 1914 does not apply in relation to the disclosure of information about a conviction of the kind mentioned in paragraph (1)(a), if the disclosure is for the purposes of this Part.

120A (Repealed) SECTION 120A THE REGULATOR MAY DISQUALIFY INDIVIDUALS
(Repealed by No 25 of 2008)

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121 (Repealed) SECTION 121 DISQUALIFIED PERSONS NOT TO BE TRUSTEES OF SUPERANNUATION ENTITIES
(Repealed by No 25 of 2008)

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121A (Repealed) SECTION 121A CERTAIN PERSONS NOT TO BE TRUSTEES OF CERTAIN SMALL FUNDS
(Repealed by No 53 of 2004)

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Division 2 - Requirements for custodians and investment managers

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SECTION 122 INVESTMENT MANAGER MUST NOT APPOINT OR ENGAGE CUSTODIAN WITHOUT THE TRUSTEE'S CONSENT

122(1)

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An investment manager of a superannuation entity must not appoint or engage a custodian of the entity without the written consent of the trustee, or the trustees, of the entity.

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122(2)

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The investment manager commits an offence if the investment manager contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 123 PERSONS WHO MAY BE APPOINTED TO BE CUSTODIANS OF SUPERANNUATION ENTITIES

123(1)

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A person must not intentionally be the custodian of a superannuation entity (other than a self managed superannuation fund) unless:

(a) the person is a body corporate; and

(b) any of the following subparagraphs applies:

(i) the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations;

(ii) a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate's duties as custodian of the entity, of an approved guarantee of an amount that is not less than the amount prescribed by the regulations;

(iii) both the conditions specified in subsection (1A) are satisfied.

[ CCH Note: For the purposes of para 123(1)(b)(ii) and 123(1)(b)(iii), Superannuation Industry (Supervision) (approved guarantee) determination No 2 of 2008 has been made, effective 25 September 2008.]

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Penalty: 600 penalty units.

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).

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123(1A)
For the purposes of subparagraph (1)(b)(iii), the following conditions are specified:

(a) a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate's duties as custodian of the entity, of an approved guarantee;

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(b) the sum of the amount of the approved guarantee and the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations.

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123(2)
Subsection (1) does not prohibit a person from being a custodian of a superannuation entity if:

(a) the person immediately tells a trustee of the entity and APRA in writing that paragraph (1)(b) does not, or has ceased to, apply; and

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(b) the person is the custodian of the entity during:

(i) the 28-day period beginning at whichever is the later of the following times:

(A) the time when paragraph (1)(b) ceased to apply to the custodian;

(B) the beginning of the entity's 1994-95 year of income; or

(ii) such longer period as APRA allows; and

(c) the trustee, or the trustees, of the entity have made or propose to make, arrangements for the orderly dismissal of the person as the custodian; and

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(d) the person is taking, or is willing to take, all reasonable steps to assist the trustee in carrying out those arrangements.

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123(3)
If paragraph (1)(b) does not, or ceases to, apply to the custodian of a superannuation entity:

(a) the custodian must immediately tell a trustee of the entity and APRA in writing; and

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(b) the trustee, or the trustees, must make arrangements for the orderly dismissal of the custodian; and

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(c) the trustee, or the trustees, must make those arrangements before the end of:

(i) the 28-day period beginning at whichever is the later of the following times:

(A) the time when paragraph (1)(b) ceased to apply to the custodian;

(B) the beginning of the entity's 1994-95 year of income; or

(ii) such longer period as APRA allows.

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123(4)

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A person who contravenes subsection (3) because of paragraph (a) of that subsection commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

123(5)

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A person who contravenes subsection (3) because of paragraph (b) or (c) of that subsection commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

123(6)

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Subsections (4) and (5) are offences 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.

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SECTION 124 INVESTMENT MANAGERS MUST BE APPOINTED IN WRITING

124(1)

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A trustee of a superannuation entity must not make a non-written appointment of an investment manager of the entity.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.

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124(2)

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A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 125

125 INDIVIDUALS NOT TO BE INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES

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A person must not intentionally be, or act as, an investment manager of a superannuation entity (other than a self managed superannuation fund) if the person is not a body corporate.

Penalty: Imprisonment for 2 years.

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Division 3 - Disqualified persons

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Subdivision A - Disqualification by the Commissioner of Taxation

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SECTION 126

126 APPLICATION OF THIS SUBDIVISION

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This Subdivision applies to the extent that the Regulator is the Commissioner of Taxation.

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SECTION 126A THE REGULATOR MAY DISQUALIFY INDIVIDUALS

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126A(1)

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The Regulator may disqualify an individual if satisfied that:

(a) the person has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and

(b) the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.

Note:

For offences relating to disqualified persons, see Subdivision C.

126A(2)

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The Regulator may disqualify an individual who is, or was, a responsible officer of a trustee, investment manager or custodian (the body corporate ) if satisfied that:

(a) the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and

(b) at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and

(c) in respect of the contravention or contraventions that occurred while the individual was a responsible officer of the body corporate - the nature or seriousness of it or them, or the number of them, provides grounds for the disqualification of the individual.

126A(3)
The Regulator may disqualify an individual if satisfied that the individual is otherwise not a fit and proper person to be a trustee, investment manager or custodian, or a responsible officer of a body corporate that is a trustee, investment manager or custodian.

126A(4)
A disqualification takes effect on the day on which it is made.

126A(5)
The Regulator may revoke a disqualification on application by the disqualified individual or on its own initiative. A revocation takes effect on the day on which it is made.

126A(6)
The Regulator must give the individual written notice of a disqualification, revocation of a disqualification or a refusal to revoke a disqualification.

126A(7)

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As soon as practicable after the Regulator gives a notice under:

(a) subsection (6) of this section; or

(b) subsection 344(6) (result of internal review);

the Regulator must, by notifiable instrument, publish particulars of the notice.

[ CCH Note: S 126(7) was to be amended by No 141 of 2020 (as amended by No 127 of 2021), s 3 and Sch 4 item 127, by inserting "by the Regulator" after "given", effective 1 July 2024. However, prior to the commencement of this amendment s 126A(7) was substituted by No 69 of 2023, s 3 and Sch 4 item 24, effective 15 September 2023 such that the amendment by No 141 of 2020 cannot be applied.]

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SECTION 126B APPLICATION FOR WAIVER OF DISQUALIFIED STATUS

126B(1) [Conditions for application]

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An individual may apply to the Regulator for a declaration under section 126D waiving his or her status as a disqualified person for the purposes of this Part only if:

(a) he or she is a disqualified person solely because of the operation of subparagraph 120(1)(a)(i); and

(b) the offence leading to him or her being a disqualified person is not an offence involving serious dishonest conduct as described in subsection (2).

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126B(2) [Offence involving serious dishonest conduct]

For the purposes of paragraph (1)(b), an offence involves serious dishonest conduct if the penalty actually imposed for the offence is:

(a) a term of imprisonment of at least 2 years or such longer period (if any) as is specified in the regulations; or

(b) a fine of at least 120 penalty units or such larger fine, if any, as is specified in the regulations.

126B(3) [Form and manner of application]

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An application must:

(a) be in writing; and

(b) be made within 14 days after the commencement of this subsection or the person's conviction, whichever is the later; and

(c) identify the offence to which the application relates; and

(d) to the extent that the court documents relating to the offence exist- be accompanied by a copy, certified to be a true copy by the Clerk or Registrar of the court, of those documents; and

(e) give consent to the Regulator making inquiries in relation to the applicant of any law enforcement agency, regulatory agency or court that the Regulator believes on reasonable grounds has in its possession or control information directly relevant to the Regulator's consideration of the application; and

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(f) be signed by the applicant.

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126B(4) [Application made after period prescribed]

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The Regulator may accept an application meeting conditions referred to in subsection (3) other than paragraph (3)(b) after the end of the period referred to in that paragraph only if the Regulator is satisfied that there are exceptional circumstances that prevented the application from being made within that period.

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126B(5) [Court documents]

The court documents are:

(a) the information or indictment against the applicant; and

(b) the transcript of the proceedings; and

(c) witness statements and affidavits; and

(d) the court's judgment and orders; and

(e) the court's reasons for judgment.

126B(6) [Application not accompanied by court documents]

If an individual is not reasonably able to obtain some or all of the court documents referred to in subsection (5), he or she:

(a) may make an application that is not accompanied by those documents; and

(b) must give the Regulator those documents as soon as practicable after making the application.

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126B(7) [Notification of inquiries]

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The Regulator must notify the applicant of any police force, agency or court of which the Regulator intends to make inquiries.

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126B(8) [When notification should be made]

Such notification should if possible be given to the applicant as soon as practicable after a decision has been made to approach that police force, agency or court.

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SECTION 126C APPLICATION MUST BE DECIDED WITHIN A PERIOD OF TIME

126C(1) [Period for deciding application]

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Subject to this section, the Regulator must decide an application made under section 126B within 60 days after receiving it.

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126C(2) [Extension of period]

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If the Regulator thinks that it will take longer than 60 days to decide the application, the Regulator may extend the period for deciding it by no more than 60 days.

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126C(3) [Notification of extension]

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The extension must be notified in writing to the applicant within 60 days after the Regulator receives the application.

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126C(4) [Application to be decided within extended period]

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If the Regulator makes an extension, the Regulator must decide the application within the extended period.

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126C(5) [Application deemed refused]

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If the Regulator has not decided the application by the end of the day by which the Regulator is required to decide it, the Regulator is taken to have decided, at the end of that day, to refuse the application under subsection 126D(3).

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SECTION 126D NOTIFYING OF THE OUTCOME OF AN APPLICATION

126D(1)
(Repealed by No 25 of 2008)

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126D(1A) [Waiver of disqualified person status]

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If, having regard to any of the following:

(a) the offence to which the application relates;

(b) the time that has passed since the applicant committed the offence;

(c) the applicant's age when the applicant committed the offence;

(d) the orders made by the court in relation to the offence;

(e) any other relevant matter;

the Regulator is satisfied that the applicant is highly unlikely to:

(f) contravene this Act; and

(g) do anything that would result in a self managed superannuation fund not complying with this Act;

the Regulator must, by notice in writing given to the applicant, make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part.

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126D(2) [Disqualified status despite declaration]

Despite any declaration waiving an applicant's status as a disqualified person for the purposes of this Part, the applicant will still be a disqualified person if:

(a) the applicant had been convicted of an offence involving dishonest conduct that the applicant did not include in the application; or

(b) a civil penalty order has been made against the applicant; or

(c) the applicant is insolvent under administration.

126D(3) [Notice of decision not to waive disqualified status]

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If the Regulator decides not to make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part, the Regulator must:

(a) by notice in writing, record that it has so decided; and

(b) give the applicant a statement, to which a copy of the notice referred to in paragraph (a) is attached, telling the applicant:

(i) that the Regulator has so decided and of the reasons for that decision; and

(ii) that the applicant must resign immediately and confirm that resignation, in writing, to the Regulator; and

(iii)that if the applicant fails so to resign and is the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity the Regulator will tell the body corporate of the applicant's status as a disqualified person.

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126D(4) [Notice that applicant is disqualified person]

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If the Regulator becomes aware that the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity has failed to resign in accordance with the requirements of a statement under paragraph (3)(b) the Regulator must tell the body corporate that the applicant is a disqualified person.

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SECTION 126E THE EFFECT OF SEEKING A WAIVER OF DISQUALIFIED PERSON STATUS

126E(1) [Application made within 14 day period]

If:

(a) a person is a disqualified person; and

(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and

(c) the person makes application for such a declaration under subsection 126B(3) within the application period specified in that subsection;

the person is treated, for the purposes of this Act, (other than the purpose of the application for the declaration) as not being, and as never having been, a disqualified person until that application is decided.

126E(2) [Effect of decision]

On deciding an application for a declaration waiving the disqualified person status of a person to whom paragraphs 1(a), (b) and (c) apply:

(a) if the Regulator decides to make the declaration, the Act applies as if the person had never been disqualified; and

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(b) if the Regulator decides not to make the declaration, the person again becomes a disqualified person from the date of the decision.

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126E(3) [Application made outside 14 day period]

If:

(a) a person is a disqualified person; and

(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and

(c) the person makes application for such a declaration under subsection 126B(4);

then:

(d) pending the decision of the application the person continues to be a disqualified person for the purposes of this Act; but

(e) if the Regulator decides to make a declaration waiving the person's status as a disqualified person, the person is treated, for the purposes of this Act, as if the person had never been a disqualified person.

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SECTION 126F THE REGULATOR'S POWERS TO SEEK FURTHER MATERIAL

126F(1) [Applicant to provide information or consent]

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If, to decide an application under subsection 126B(1), the Regulator needs:

(a) further information; or

(b) the applicant's consent to the Regulator making inquiries about the applicant from another person;

the Regulator may ask an applicant to provide information or consent.

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126F(2) [Fees]

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The Regulator may, by notice in writing, require a person who has made an application under subsection 126B(1) to pay to the Regulator an amount equal to the amount of any fees charged to the Regulator by any law enforcement agency, regulatory agency or court for answering any inquiry by the Regulator about the applicant if the fees:

(a) are of a kind prescribed for the purposes of this subsection; and

(b) exceed an amount prescribed for the purposes of this subsection, or exceed, in total, such an amount.

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126F(3) [Waiver of fees]

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The Regulator may, on the application of a person who has made an application under subsection 126B(1), waive in whole or in part, the requirement to pay an amount under subsection (2) if the Regulator is satisfied that there are special circumstances making it unfair to require the applicant to pay that amount or that part of that amount.

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126F(4) [Application deemed withdrawn]

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If the applicant fails to comply with the request, the Regulator must treat the application as having been withdrawn.

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126F(5) [Application may be decided before requirements complied with]

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Nothing in this section or in section 126B prevents the Regulator from deciding an application before some or all of the requirements in subsection 126B(3) have been complied with.

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Subdivision B - Disqualification by the Federal Court of Australia

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SECTION 126G

126G APPLICATION OF THIS SUBDIVISION

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This Subdivision applies to the extent that the Regulator is APRA.

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SECTION 126H COURT POWER OF DISQUALIFICATION

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126H(1)
On application by the Regulator, the Federal Court of Australia may, by order, disqualify an individual from being or acting as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied:

(a) as mentioned in subsection (3), (4) or (5); and

(b) that the disqualification is justified.

Note:

For offences relating to disqualified persons, see Subdivision C.

126H(2)
For the purposes of subsection (1), the Court may disqualify an individual from being or acting as:

(a) a trustee of:

(i) a particular superannuation entity; or

(ii) a class of superannuation entities; or

(iii) any superannuation entity; or

(b) a responsible officer of:

(i) a particular body corporate that is a trustee, an investment manager or a custodian of a superannuation entity; or

(ii) a class of bodies corporate that are trustees, investment managers or custodians of superannuation entities; or

(iii) any body corporate that is a trustee, investment manager or custodian of a superannuation entity.

126H(3)
The Court may disqualify an individual, in accordance with subsection (1), if satisfied:

(a)

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that the individual has contravened this Act, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 on one or more occasions; and

(b) that the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.

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126H(4)
The Court may disqualify an individual, in accordance with subsection (1), who is, or was, a responsible officer of a trustee, investment manager or custodian (the body corporate ) if satisfied that:

(a) the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and

(b) at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and

126H(5)
The Court may disqualify an individual, in accordance with subsection (1), if satisfied that the individual is otherwise not a fit and proper person to be a person referred to in subsection (2).

126H(6)
In deciding whether it is satisfied as mentioned in subsection (3), (4) or (5), the Court may take into account:

(a) any matters specified in the regulations for the purposes of this paragraph; and

(b) any other matters the Court considers relevant.

126H(6A)

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In deciding whether it is satisfied as mentioned in subsection (5), the Court may also take into account any criteria for fitness and propriety that are relevant to the trustee or responsible officer set out in the prudential standards.

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126H(7)
In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to:

(a) the individual's conduct in relation to the management, business or property of any corporation; and

(b) any other matters the Court considers relevant.

126H(8)

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As soon as practicable after the Court disqualifies an individual under this section, the Regulator must:

(a)

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give particulars of the disqualification:

(i) if the individual is, or is acting as, a trustee of a superannuation entity - to the entity concerned; or

(ii) if the individual is, or is acting as, a responsible officer of a body corporate that is a trustee, an investment manager or a custodian of a superannuation entity - to the body corporate concerned; and

(b)

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by notifiable instrument, publish particulars of the disqualification.

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SECTION 126J COURT POWER TO REVOKE OR VARY A DISQUALIFICATION ETC.

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126J(1) [Application may be made]

A disqualified person, or the Regulator, may apply to the Federal Court of Australia for:

(a) if an individual is a disqualified person only because he or she was disqualified under section 126H - a variation or a revocation of the order made under that section; or

(b) otherwise - an order that the person is not a disqualified person.

126J(2) [Effect of revocation]

If the Court revokes an order under paragraph (1)(a) or makes an order under paragraph (1)(b), then, despite section 120, the person is not a disqualified person .

126J(3) [Notice]

At least 21 days before commencing the proceedings, written notice of the application must be lodged:

(a) if the disqualified person makes the application - by the person with the Regulator; or

(b) if the Regulator makes the application - by the Regulator with the disqualified person.

126J(4) [Exceptions and conditions]

An order under paragraph (1)(b) may be expressed to be subject to exceptions and conditions determined by the Court.

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Subdivision C - Other matters relating to disqualification

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SECTION 126K DISQUALIFIED PERSONS NOT TO BE TRUSTEES, INVESTMENT MANAGERS OR CUSTODIANS OF SUPERANNUATION ENTITIES

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126K(1) [Offence relating to superannuation entities]

A person commits an offence if:

(a) the person is a disqualified person; and

(b) the person knows he or she is a disqualified person; and

(c) the person is or acts as a trustee, investment manager or custodian of a superannuation entity; and

(d) for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H - the person is disqualified from being or acting as a trustee of that superannuation entity.

Penalty: Imprisonment for 2 years.

126K(2) [Strict liability offence]

A person commits an offence if:

(a) the person is a disqualified person; and

(b) the person knows he or she is a disqualified person; and

(c) the person is or acts as a trustee, investment manager or custodian of a superannuation entity; and

Penalty: 60 penalty units.

126K(3) [Strict liability]

Subsection (2) is an offence of strict liability.

Note:

For strict liability , see section 6.1 of the Criminal Code.

126K(4) [Offence relating to body corporates]

A person commits an offence if:

(a) the person is a disqualified person; and

(b) the person knows he or she is a disqualified person; and

(c) the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and

Penalty: Imprisonment for 2 years.

126K(5) [Strict liability offence]

A person commits an offence if:

(a) the person is a disqualified person; and

(b) the person knows he or she is a disqualified person; and

(c) the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and

Penalty: 60 penalty units.

126K(6) [Strict liability]

Subsection (5) is an offence of strict liability.

Note:

For strict liability , see section 6.1 of the Criminal Code.

126K(7) [Offence relating to informing of Regulator]

A person commits an offence if:

(a) the person is a trustee of a superannuation entity; and

(b) the person is or becomes a disqualified person; and

(c) the person does not tell the Regulator in writing immediately.

Penalty: 50 penalty units.

126K(8) [Strict liability]

Subsection (7) 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.

View history note

SECTION 126L PRIVILEGE AGAINST EXPOSURE TO PENALTY - DISQUALIFICATION UNDER SECTION 126A, 126H, 130D OR 130EA

View history reference

126L(1) Proceedings.

View history reference

In the case of any proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement:

(a) to answer a question or give information; or

(b) to produce books; or

(c) to do any other act;

on the ground that the answer or information, production of the books, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 126A, 126H or 130D or tend to make a firm or company liable to disqualification under section 130EA.

View history note

126L(2)
Subsection (1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding.

126L(3) Statutory requirements.

View history reference

A person is not entitled to refuse or fail to comply with a requirement under this Act:

(a) to answer a question or give information; or

(b) to produce books; or

(c) to do any other act;

View history note

126L(4) Admissibility.

View history reference

Subsections 130B(2), 287(3), 290(2) and 336F(2) do not apply to a proceeding for the imposition of a penalty by way of a disqualification under section 126A, 126H or 130D or a proceeding under section 130EA.

View history note

126L(5) Other provisions.

Subsections (1) and (3) of this section have effect despite anything in:

(a) section 199; or

(b) any other provision of this Act; or

(c)

View history reference

the Administrative Review Tribunal Act 2024.

View history note

126L(6) Definition.

In this section:

penalty
includes forfeiture.

View history note

Division 4 - Non-compliance not to invalidate appointment or transaction

View history reference

View history note

SECTION 127

127 NON-COMPLIANCE NOT TO INVALIDATE APPOINTMENT OR TRANSACTION
A failure to comply with a provision of this Part does not affect the validity of an appointment or transaction.

PART 16 - ACTUARIES AND AUDITORS OF SUPERANNUATION ENTITIES

Division 1 - Object of Part

View history reference

View history note

SECTION 128

128 OBJECT OF PART
The object of this Part is to set out special rules about actuaries and auditors of superannuation entities.

Division 1A - Approved SMSF auditors

View history note

Subdivision A - Registration of approved SMSF auditors

View history note

SECTION 128A APPLICATION FOR REGISTRATION AS AN APPROVED SMSF AUDITOR

View history reference

128A(1)
A natural person who is an Australian resident may apply to the Regulator for registration as an approved SMSF auditor.

128A(2)
The application must be in the approved form.

Note:

The approved form may require electronic lodgement of the application: see sections 11A and 11B.

128A(3)
The Regulator may request the applicant to give to the Regulator further information relating to the application within a specified time.

128A(4)
The applicant is taken to have withdrawn the application if he or she does not give the further information within that time.

View history note

SECTION 128B REGISTRATION AS AN APPROVED SMSF AUDITOR

View history reference

Obligation to register

128B(1)
The Regulator must grant an application under section 128A and register the applicant as an approved SMSF auditor if:

(a) the applicant:

(i) has the qualifications prescribed by the regulations; and

(ii) has the practical experience prescribed by the regulations; and

(iii) has passed a competency examination in accordance with section 128C; and

(b) the Regulator is satisfied that the applicant:

(i) is capable of performing the duties of an approved SMSF auditor; and

(ii) is unlikely to contravene the obligations of an approved SMSF auditor under Subdivision B; and

(iii) is otherwise a fit and proper person to be an approved SMSF auditor.

Discretion to register

128B(2)
If the applicant does not meet one or more of the requirements of paragraph (1)(a), the Regulator may grant the application if the applicant meets the requirements of paragraph (1)(b).

Refusal of applications

128B(3)
If the applicant does not meet the requirements of paragraph (1)(b), the Regulator must refuse the application.

128B(4)
Despite subsections (1) and (2), the Regulator must refuse the application if the applicant is:

(a) a person for whom a disqualification order or a suspension order is in force under section 130F; or

(b) a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D.

128B(5)
If the Regulator refuses the application, the Regulator must, not later than 14 days after the decision, give to the applicant a notice in writing setting out the decision and the reasons for it.

Certificate of registration

128B(6)
If the Regulator grants the application, the Regulator must, not later than 14 days after granting the application, issue to the applicant a certificate:

(a) stating that the applicant has been registered as an approved SMSF auditor; and

(b) stating the applicant's SMSF auditor number; and

(c) specifying the day the application was granted.

128B(7)
A failure to comply with subsection (6) does not affect the validity of the decision.

Duration of registration

128B(8)
A registration under this section takes effect at the beginning of the day specified in the certificate as the day the application is granted and remains in force (except while the registration is suspended) until:

(a) the Regulator cancels the registration under section 128E; or

(b) an order disqualifying the person who is registered from being an approved SMSF auditor comes into force under section 130F; or

(c) an order disqualifying the person who is registered from being or acting as an auditor of all superannuation entities comes into force under section 130D; or

(d) the person who is registered dies.

View history note

SECTION 128C

128C COMPETENCY EXAMINATIONS

View history reference

The applicant is taken to pass a competency examination in accordance with this section if:

(a) in the 12 month period prior to his or her application under section 128A, the applicant passes an examination conducted by or on behalf of the Regulator for the purposes of this section; and

(b) the applicant has not, during that period, undertaken and failed to pass such an examination on 2 previous occasions.

View history note

SECTION 128D CONDITIONS ON REGISTRATION

View history reference

128D(1)
The Regulator may, at any time, by giving written notice to a person:

(a) impose conditions, or additional conditions, on the person's registration as an approved SMSF auditor; or

(b) vary or revoke conditions imposed on the registration.

128D(2)
The Regulator may do so:

(a) on its own initiative; or

(b) on application by the person if:

(i) the person is an approved SMSF auditor; and

(ii) the application is accompanied by any documents prescribed by the regulations.

128D(3)
Without limiting the conditions that the Regulator may impose under this section, those conditions, or those conditions as varied, may require one or more of the following:

(a) that the person complete a course of education or training specified in the notice;

(b) that the person undertake and pass a competency examination within a period specified by the Regulator.

View history note

SECTION 128E CANCELLING REGISTRATION

View history reference

128E(1)
The Regulator may cancel a person's registration as an approved SMSF auditor if the person requests the Regulator to do so. The request must be in writing.

128E(2)
The Regulator may cancel a person's registration as an approved SMSF auditor if the Regulator is satisfied that the person:

(a) has failed to comply with a condition imposed under section 128D on the person's registration; or

(b) has not performed any significant audit work during a continuous period of 5 years, and, as a result, has ceased to have the practical experience necessary for carrying out audits of self managed superannuation funds under this Act; or

(c) has failed to comply with the person's obligation to give the Regulator a statement under section 128G; or

(d) has ceased to be an Australian resident.

128E(3)
The Regulator must, not later than 14 days after deciding to cancel the registration, give the person a written notice setting out the decision and the reasons for it.

128E(4)
The decision takes effect at the end of the day the notice is given to the person.

128E(5)
A failure to comply with subsection (3) does not affect the validity of the decision.

View history note

Subdivision B - Obligations of approved SMSF auditors

View history note

SECTION 128F

128F PROFESSIONAL OBLIGATIONS OF APPROVED SMSF AUDITORS

View history reference

An approved SMSF auditor must:

(a) complete the continuing professional development requirements prescribed by the regulations; and

(b) hold a current policy of professional indemnity insurance, of a level prescribed by the regulations, for claims that may be made against the auditor in connection with audits of self managed superannuation funds; and

(c) comply with:

(i) any competency standards that the Regulator determines under section 128Q; and

(ii) any auditing standards, made by the Auditing and Assurance Standards Board under section 336 of the Corporations Act 2001, that are applicable to the duties of an approved SMSF auditor under this Act; and

(iii) any auditing and assurance standards, formulated by the Auditing and Assurance Standards Board under section 227B of the Australian Securities and Investments Commission Act 2001, that are applicable to those duties; and

(d) comply with the auditor independence requirements prescribed by the regulations.

View history note

SECTION 128G ANNUAL STATEMENTS

View history reference

128G(1)
An approved SMSF auditor or suspended SMSF auditor must, within 30 days after the end of:

(a) the 12 month period beginning on the day the auditor's registration as an approved SMSF auditor took effect; and

(b) each subsequent 12 month period;

give to the Regulator a statement relating to that period.

128G(2)
The statement must be in the approved form.

128G(3)
The Regulator may, at any time before the statement is due, extend (or further extend) the period for giving the statement.

Note:

The approved form may require electronic lodgement of the statement: see sections 11A and 11B.

View history note

SECTION 128H

128H NOTIFICATION OF CERTAIN MATTERS

View history reference

If:

(a) an approved SMSF auditor ceases:

(i) to practise as an auditor of self managed superannuation funds; or

(ii) to be an Australian resident; or

(b) a suspended SMSF auditor ceases to be an Australian resident; or

(c) a change occurs in any matter particulars of which are required by paragraph 128J(2)(a), (c) or (d) to be entered in the Register of Approved SMSF Auditors in relation to an approved SMSF auditor or suspended SMSF auditor; or

(d) a change occurs in any contact details that were included:

(i) in the application of an approved SMSF auditor or suspended SMSF auditor, under section 128A, for registration as an approved SMSF auditor; or

(ii) in particulars previously given under this paragraph in relation to an approved SMSF auditor or suspended SMSF auditor;

the approved SMSF auditor or suspended SMSF auditor must, not later than 21 days after the occurrence of the event concerned, give to the Regulator, in the approved form, particulars of that event.

Note:

The approved form may require electronic lodgement of the particulars: see sections 11A and 11B.

[ CCH Note: S 128H will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1418-1421, by inserting "(1)" before "If", substituting para (c), "notify the Registrar of the event" for "give to the Regulator, in the approved form, particulars of that event" and repealing the note, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. Para (c) will read:

(c) a change occurs in any matter required to be included in a record of particulars relating to an approved SMSF auditor or suspended SMSF auditor maintained by the Registrar under section 128J; or

]

View history note

[ CCH Note: S 128H(2) will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1422, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. S 128H(2) will read:

128H(2)
The notification must meet any requirements of the data standards.

]

Subdivision C - Registers

[ CCH Note: Subdiv C heading will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1423, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. The heading will read:

Subdivision C - Registrar must record certain particulars

]

SECTION 128J REGISTER OF APPROVED SMSF AUDITORS

View history reference

128J(1)
The Regulator must cause a Register of Approved SMSF Auditors to be kept for the purposes of this Act.

128J(2)
The Regulator must cause the entry in the Register of the following particulars relating to each person who is an approved SMSF auditor or suspended SMSF auditor:

(a) the person's name;

(b) the day the person's registration took effect;

(c) the address of the principal place where the person practises as an auditor of self managed superannuation funds;

(d) if the person practises as an auditor or a member of a firm, or under a name or style other than the person's own name - the name of the firm, or the name or style under which he or she so practises;

(e) particulars of any suspension of the person's registration.

The Regulator may cause the entry in the Register of such other particulars relating to the person as the Regulator considers appropriate.

128J(3)
If the personceases to be an approved SMSF auditor (for a reason other than the person becoming a suspended SMSF auditor), the Regulator must cause to be removed from the Register the person's name and any other particulars relating to the person that are entered in the Register.

128J(4)
A person may inspect and make copies of, or take extracts from, the Register.

[ CCH Note: S 128J will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1423, effective 1 July 2026 or a day or days to be fixed by Proclamation. S 128J will read:

SECTION 128J PARTICULARS RELATING TO APPROVED SMSF AUDITORS ETC.

128J(1)
The Registrar must maintain records of particulars relating to the following persons:

(a) a person who is an approved SMSF auditor or suspended SMSF auditor;

(b) a person whose registration as an approved SMSF auditor has been cancelled under section 128E;

(c) a person for whom an order disqualifying a person from being an approved SMSF auditor is in force under section 130F.

128J(2)
Maintaining the records may involve removing a record relating to a particular person.

No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1465-1468 contain the following application and transitional provisions:

Part 3 - Application and transitional provisions

1465 Definitions

(1)
In this Part:
amending item
means:

(a) an item (other than item 103) of Part 2 of this Schedule that amends a provision of any of the following:

(i) the A New Tax System (Australian Business Number) Act 1999;

(ii) the A New Tax System (Goods and Services Tax) Act 1999;

(iii) the Australian Prudential Regulation Authority Act 1998;

(iv) the Income Tax Assessment Act 1997;

(v) the Superannuation Industry (Supervision) Act 1993;

(vi) the Taxation Administration Act 1953; or

(b) an item specified under subitem (2).

application day
, for an amendment made by an amending item, as applying in relation to a matter, means the day on and after which the amendment applies in relation to that matter because of item 1467.

commencement day
, for an amending item, means the day on which the item commences (taking into account Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022).

interim period
means the period:

(a) starting at the start of 22 June 2022; and

(b) ending at the end of the day before the day on which Part 2 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 commences.
postponed item
means any of the following that commenced on 22 June 2022 (disregarding Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022):

(a) an item of Part 2 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020;

(b) an item of Part 3 of Schedule 1 to the Financial Sector Reform (Hayne Royal Commission Response - Better Advice) Act 2021;

(c) an item of Part 4 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.
Note:

Item 103 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 is not covered by paragraph (a) because that item commenced on 4 April 2021.

(2)
For the purposes of paragraph (b) of the definition of amending item in subitem (1), the Minister may, by legislative instrument, specify items that:

(a) are in a Schedule to any Act and amend a provision that:

(i) is a provision of an Act referred to in paragraph (a) of that definition; and

(ii) deals with a matter related to a government registry regime; and

(b) are to commence on a day after the end of the interim period but before 1 July 2026.

(3)
For the purposes of subparagraph 1467(1)(c)(i), the Minister may, by legislative instrument, specify a day for an item specified under subitem (2) of this item. The day must occur after the end of the interim period but before 1 July 2026.

1466 Validation of acts or things done during interim period
Object

(1)
The object of this item is to treat all situations during the interim period in every respect as if:

(a) the amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 had been made at the start of 21 June 2022; and

(b) the amendments made by the postponed items had not been made at the start of 22 June 2022 and had had no effect during the interim period.

Validation of acts and things done in interim period

(2)
An act or thing that was done at any time during the interim period is as valid, and is taken always to have been as valid, as it would have been if:

(a) the amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 had been made at the start of 21 June 2022; and

(b) in particular, the amendments made by the postponed items had not been made at the start of 22 June 2022 and had had no effect during the interim period.

Continuation of delegations

(3)
Without limiting subitem (2), if:

(a) a function or power conferred by any of the following Acts was delegated to a person:

(i) the A New Tax System (Australian Business Number) Act 1999;

(ii) the A New Tax System (Goods and Services Tax) Act 1999;

(iii) the Australian Prudential Regulation Authority Act 1998;

(iv) the Commonwealth Registers Act 2020;

(v) the Income Tax Assessment Act 1997;

(vi) the Superannuation Industry (Supervision) Act 1993;

(vii) the Taxation Administration Act 1953; and

(b) the delegation was in force immediately before 22 June 2022; and

(c) but for this subitem, the delegation would have ceased to have effect at the start of 22 June 2022 because of any of the amendments made by the postponed items;
then:

(d) an act or thing done by the delegate in the interim period is, and is taken always to have been, as valid a performance or exercise of the function or power as it would have been if the delegation had continued in force throughout the interim period; and

(e) the delegation has effect, on and after the day section 1 of the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 commences, as if it had been made at the time that section commences.

Acts and things to which this item applies

(4)
This item applies to an act or thing, regardless of the basis on which, or capacity in which, the act or thing was done or purported to be done.

1467 Application of amendments

(1)
An amendment of a provision of an Act that is made by an amending item applies, in relation to a matter (the relevant matter ), on and after the earliest of the following days:

(a) if the amending item is covered by a notifiable instrument in force under paragraph (2)(a) of this item - the day the instrument specifies for the item;

(b) if the amending item is covered by a notifiable instrument in force under paragraph (2)(b) of this item that specifies matters for the item that include the relevant matter - the day the instrument specifies for the item in relation to those matters;

(c) whichever of the following is applicable:

(i) if a day is specified for the amending item under subitem 1465(3) - that day;

(ii) otherwise - 1 July 2026.

Note:

The provision, as in force immediately before the commencement day for the amending item, will continue to apply in relation to the relevant matter until the day that applies under this subitem.

(2)
The Minister:

(a) may by notifiable instrument specify days for amending items for the purposes of paragraph (1)(a); and

(b) may by notifiable instrument specify days and matters for amending items for the purposes of paragraph (1)(b).
Note:

For specification by class, see subsection 13(3) of the Legislation Act 2003.

(3)
A day specified for an amending item in a notifiable instrument made under subitem (2) must be:

(a) on or after the day that the instrument is made; and

(b) on or after the commencement day for the amending item.

(4)
Without limiting subsection 13(3) of the Legislation Act 2003, an instrument made under subitem (2) of this item may specify all amending items as a class of amending items.

1468 Things started but not finished by ASIC
1468
If:

(a) an amending item amends a provision of an Act; and

(b) before the application day for the amendment made by the amending item, as applying in relation to a matter, ASIC started doing a thing that relates to that matter under the provision as in force immediately before the commencement day for the amending item; and

(c) immediately before that application day, ASIC had not finished doing that thing; and

(d) on and after that application day, doing that thing is within the powers or functions of the Registrar;
then, on and after that application day:

(e) ASIC may finish doing that thing as if that thing were being done by the Registrar in performing or exercising the Registrar's functions or powers; and

(f) to the extent that ASIC does not finish doing that thing under paragraph (e), the Registrar may finish doing that thing in performing and exercising the Registrar's functions and powers.

]

View history note

SECTION 128K REGISTER OF DISQUALIFIED SMSF AUDITORS

View history reference

128K(1)
The Regulator must cause a Register of Disqualified SMSF Auditors to be kept for the purposes of this Act.

128K(2)
The Regulator must cause the entry in the Register of the name, and the contact details last known to the Regulator, of each person for whom an order disqualifying the person from being an approved SMSF auditor is in force under section 130F.

128K(3)
If the order is revoked, the Regulator must cause to be removed from the Register the person's name and any other particulars relating to the person that are entered in the Register.

128K(4)
A person may inspect and make copies of, or take extracts from, the Register.

[ CCH Note: S 128K will be repealed by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1423, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

View history note

Subdivision D - Fees

View history note

SECTION 128L FEES IMPOSED UNDER THE SUPERANNUATION AUDITOR REGISTRATION IMPOSITION ACT 2012

View history reference

128L(1)

View history reference

A fee imposed under the Superannuation Auditor Registration Imposition Act 2012 is payable for the matters mentioned in an item in column 1 of the table. The fee is payable by the person referred to in the corresponding item in column 2 of the table.

Fees imposed under the *Superannuation Auditor Registration Imposition Act 2012*
Item	Column 1 A fee payable for ...	Column 2 Is payable by ...
1	Applying for registration as an approved SMSF auditor	The applicant
1A	Applying for conditions imposed on registration as an approved SMSF auditor to be varied or revoked under section 128D	The applicant
1B	Applying for registration as an approved SMSF auditor to be cancelled under section 128E	The applicant
2	Undertaking a competency examination in accordance with section 128C	The person undertaking the examination
3	Giving to the Regulator a statement under section 128G	The person giving the statement
4	Giving to the Regulator a statement under section 128G within 1 month after it fell due (in addition to the fee payable because of item 3)	The person giving the statement
5	Giving to the Regulator a statement under section 128G more than 1 month after it fell due (in addition to the fee payable because of item 3)	The person giving the statement
6	Giving to the Regulator particulars under section 128H within 1 month after they fell due	The person giving the particulars
7	Giving to the Regulator particulars under section 128H more than 1 month after they fell due	The person giving the particulars
8	Inspecting or searching a register that the Regulator keeps under this Division	The person who makes a request to inspect or search the register

[ CCH Note: S 128L(1) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1424, by substituting table items 6 and 7 for table items 6 to 8, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. Table items 6 and 7 will read:

6 Notifying the Registrar of an event under section 128H within 1 month after the notification was due The person giving the notification

7 Notifying the Registrar of an event under section 128H more than 1 month after the notification was due The person giving the notification

]

View history note

128L(2)
The fee is payable to the Regulator on behalf of the Commonwealth.

[ CCH Note: S 128L(2) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1425, by inserting "(or, for item 6 or 7 of the table, the Registrar)" after "Regulator", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

128L(3)
The fee is due and payable on the day prescribed by the regulations for the purposes of this subsection.

128L(4)
The Regulator may, on behalf of the Commonwealth, waive the payment of the whole or a part of the fee, on the Regulator's own initiative or on written application by a person.

[ CCH Note: S 128L(4) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1425 and 1426, by inserting "(or, for item 6 or 7 of the table, the Registrar)" after "Regulator" and "(or, for one of those table items, the Registrar's)" after "Regulator's", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

128L(5)
If a fee is payable under this section for a matter (other than a matter referred to in item 8 of the table in subsection (1)), the matter is taken, for the purposes of this Act (other than section 128J), not to have occurred until the fee is paid.

[ CCH Note: S 128L(5) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1427, by omitting "(other than a matter referred to in item 8 of the table in subsection (1))", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

128L(6)
The Regulator may, on behalf of the Commonwealth, recover a debt due under this section.

[ CCH Note: S 128L(6) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1428, by inserting "(or, for item 6 or 7 of the table, the Registrar)" after "Regulator", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

128L(7)
Nothing in a law passed before the commencement of this section exempts a person from liability to pay a fee under this section.

128L(8)
A law, or a provision of a law, passed after the commencement of this section that purports to exempt a person from liability:

(a) to pay taxes under laws of the Commonwealth; or

(b) to pay certain taxes under those laws that include fees payable under this section;

is not to be construed as exempting the person from liability to pay fees payable under this section, unless the law or provision expressly exempts a person from liability to pay such fees.

View history note

SECTION 128M FEES FOR INSPECTION OR SEARCH

View history reference

128M(1)
If a fee is payable under section 128L for a matter referred to in item 8 of the table in subsection 128L(1) that involves the Regulator doing an act, the Regulator may refuse to do the act until the fee is paid.

128M(2)
To avoid doubt, nothing in this Division, and nothing done under this Division:

(a) imposes on the Regulator a duty to allow the inspection or search of a register, or to make available information; or

(b) confers a right to inspect or search a register or to have information made available;

except so far as such a duty or right would, but for the effect of this section, exist under a provision of this Act (other than a provision of this Division) or under some other law.

[ CCH Note: S 128M will be repealed by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1429, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

View history note

Subdivision E - Miscellaneous

View history note

SECTION 128N

128N ASIC MAY DISCLOSE INFORMATION TO THE COMMISSIONER OF TAXATION

View history reference

ASIC may disclose information, given to it in or in connection with the performance of its functions or the exercise of its powers under this Part or Part 25, to the Commissioner of Taxation for the purpose of administering the provisions of this Act.

Note:

A disclosure of information permitted by this section is an authorised disclosure for the purposes of subsection 127(2) of the Australian Securities and Investments Commission Act 2001.

View history note

SECTION 128P COMMISSIONER OF TAXATION MAY REFER MATTERS TO ASIC

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128P(1)
If the Commissioner of Taxation is of the opinion that:

(a) an approved SMSF auditor is not a fit and proper person to be an approved SMSF auditor; or

(b) in relation to the conduct of an audit of a self managed superannuation fund - a person has contravened this Act or the regulations, or a person who conducted, or is conducting, the audit has failed to carry out or perform adequately and properly:

(i) the duties of an auditor under this Act or the regulations; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or

(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001;

the Commissioner of Taxation may refer the details of the matter to ASIC.

128P(2)
The Commissioner of Taxation may exercise the power under subsection (1) in relation to an approved SMSF auditor whether or not an order disqualifying or suspending the approved SMSF auditor has been made under section 130F.

128P(3)
If, under subsection (1), the Commissioner of Taxation refers details of a matter to ASIC, the Commissioner of Taxation must, as soon as practicable but, in any event, not later than 14 days after the referral, by notice in writing given to the auditor or person concerned, inform the auditor or person:

(a) of the fact that a matter has been referred under subsection (1); and

(b) of the nature of the matter so referred.

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SECTION 128Q COMPETENCY STANDARDS

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128Q(1)
The Regulator may, by legislative instrument, determine competency standards to be complied with by all approved SMSF auditors.

128Q(2)
A competency standard may impose different requirements to be complied with in different situations or in respect of different activities.

128Q(3)
Without limiting the matters in relation to which the Regulator may determine a competency standard, a competency standard may provide for matters relating to any of the following:

(a) the conduct of audits;

(b) the professional obligations of approved SMSF auditors;

(c) knowledge of laws applying to approved SMSF auditors;

(d) compliance with laws applying to approved SMSF auditors.

128Q(4)
A competency standard may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a matter contained in an instrument or writing:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

128Q(5)

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Subsection (4) has effect despite anything in subsection 14(2) of the Legislation Act 2003.

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[ CCH Note: ASIC Class Order [CO 12/1687] (F2012L02497), repealed by Superannuation (Repeal) Instrument 2023/222 (F2023L00453), effective 21 April 2023), previously prescribed competency standards for the purposes of s 128Q(1).]

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Division 2 - Obligations of actuaries and auditors

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SECTION 129 OBLIGATIONS OF ACTUARIES AND AUDITORS - COMPLIANCE

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129(1) When section applies.

This section applies to a person in relation to a superannuation entity if:

(aa)

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the person is an individual; and

(a)

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the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

(i) this Act, the regulations or the prudential standards;

(ii) if the entity is a registrable superannuation entity - the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023;

(iii) if the entity is a registrable superannuation entity - a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

(b)

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the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity.

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129(2) Section does not apply if the person believes that his or her opinion is not relevant to the performance of actuarial or audit functions.

This section does not apply to the person if the person has an honest belief that the opinion is not relevant to the performance of those functions.

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129(3) Trustee and Regulator to be told about the matter.

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Subject to subsection (3A), the person must, immediately after forming the opinion mentioned in paragraph (1)(a):

(a) tell a trustee of the entity about the matter in writing; and

(b)

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if the superannuation entity is not a self managed superannuation fund and the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing; and

(c)

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if the superannuation entity is a self managed superannuation fund and the matter is specified in the approved form - tell the Regulator about the matter in the approved form.

Note:

For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

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129(3AA)
(Repealed by No 46 of 2011)

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129(3A) The person may not have to tell a trustee or the Regulator about the matter.

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The person does not have to:

(a) tell a trustee of the entity about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person; or

(b) tell the Regulator about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person.

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129(3B) Penalties for misinformation.

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A person (the first person ) commits an offence if:

(a) this section applies to the first person; and

(b) the first person is aware of a matter that must, under this section, be told to a trustee; and

(c)

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the first person tells another person to whom this section applies that the first person has told a trustee about the matter; and

(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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129(3C)

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A person (the first person ) commits an offence if:

(a) this section applies to the first person; and

(b) the first person is aware of a matter that must, under this section, be told to the Regulator; and

(c) the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and

(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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129(4) No civil liability for telling about a matter.

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A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section.

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129(5) Offences.

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A person commits an offence if the person contravenes subsection (3).

Penalty: 50 penalty units.

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129(6)

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A person commits an offence if the person contravenes subsection (3). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1:

For strict liability , see section 6.1 of the Criminal Code.

Note 2:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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129(7)

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(Repealed by No 53 of 2004)

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SECTION 129A OBLIGATIONS OF LEAD AUDITORS - COMPLIANCE

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Contravention by RSE audit company

129A(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

(i) this Act, the regulations or the prudential standards;

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

(iii) a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

(b) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(c) the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

Contravention by member of RSE audit firm

129A(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

(i) this Act, the regulations or the prudential standards;

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

(iii) a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

(b) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(c) the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

129A(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:

(a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or

(b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:

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

Contravention by lead auditor

129A(4)
A person contravenes this subsection if:

(a) the person is the lead auditor for an audit of a registrable superannuation entity; and

(b) the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

(i) this Act, the regulations or the prudential standards;

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

(iii) a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

(c) the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(d) the person does not, immediately after the person forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the person has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

Exception - person has a belief that the opinion is not relevant to the performance of audit functions

129A(5)
A person is not required by subsection (1), (2) or (4) to tell the Regulator, or a trustee of a registrable superannuation entity, about a matter if the person has an honest belief that the opinion mentioned in that subsection is not relevant to the performance of the audit functions mentioned in that subsection.

No civil liability for telling about a matter

129A(6)
A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4).

Offences - RSE audit company

129A(7)
A company commits an offence if the company contravenes subsection (1).

Penalty: 250 penalty units.

129A(8)
A company commits an offence if the company contravenes subsection (1).

Penalty: 125 penalty units.

129A(9)
An offence against subsection (8) is an offence of strict liability.

Offences - lead auditor or member of RSE audit firm

129A(10)
A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 50 penalty units.

129A(11)
A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 25 penalty units.

129A(12)
An offence against subsection (11) is an offence of strict liability.

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SECTION 130 OBLIGATIONS OF ACTUARIES AND AUDITORS - SOLVENCY

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When section applies

130(1)
This section applies to a person in relation to a superannuation entity if:

(aa)

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the person is an individual; and

(ab)

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the person is an auditor or actuary of the superannuation entity; and

(a) the person forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and

(b)

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the person formed the opinion in the course of, or in connection with, the performance by the person of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:

(i) actuarial or audit functions;

(ii) any other functions if, in the course of, or in connection with, the performance of the functions by the person, the person obtained sufficient information to enable the person to assess the financial position of the entity.

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Regulator and trustee to be told about the financial position

130(2)

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Subject to subsection (2A), the person must, immediately after forming the opinion mentioned in paragraph (1)(a), tell the Regulator, and a trustee of the entity, about the matter in writing.

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The person may not have to tell the Regulator or a trustee about the matter

130(2A)

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The person does not have to:

(a) tell the Regulator about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person; or

(b) tell a trustee of the entity about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person.

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Penalty for misinformation

130(2B)

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A person (the first person ) commits an offence if:

(a) this section applies to the first person; and

(b) the first person is aware of a matter that must, under this section, be told to the Regulator and a trustee; and

(c)

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the first person tells another person to whom this section applies that the first person has told either or both the Regulator and a trustee about the matter; and

(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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No civil liability for telling about a matter

130(3)

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A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section.

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Offences

130(4)

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A person commits an offence if the person contravenes subsection (2).

Penalty: 50 penalty units.

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130(5)

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A person commits an offence if the person contravenes subsection (2). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1:

For strict liability , see section 6.1 of the Criminal Code.

Note 2:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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When financial position is unsatisfactory

130(6)

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For the purposes of this section, in forming an opinion whether the financial position of an entity may be about to become unsatisfactory, a person must consider any matters prescribed by the regulations for the purposes of this subsection.

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130(6A)

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Subsection (6) does not limit the matters that a person may consider in forming such an opinion.

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130(7)
For the purposes of this section, the financial position of an entity is taken to be unsatisfactory if, and only if, under the regulations, the financial position of the entity is treated as unsatisfactory.

SECTION 130AA OBLIGATIONS OF LEAD AUDITORS - SOLVENCY

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Contravention by RSE audit company

130AA(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and

(b)

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the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:

(i) audit functions;

(ii) any other functions if, in the course of, or in connection with, the performance of the functions by the RSE audit company, the lead auditor obtained sufficient information to enable the lead auditor to assess the financial position of the entity; and

(c) the lead auditor does not, immediately after the lead auditor forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing.

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Contravention by member of RSE audit firm

130AA(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and

(b)

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the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:

(i) audit functions;

(ii) any other functions if, in the course of, or in connection with, performance of the functions by the RSE audit firm, the lead auditor obtained sufficient information to enable the lead auditor to assess the financial position of the entity; and

(c) the lead auditor does not, immediately after the lead auditor forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing.

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130AA(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:

(a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or

(b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:

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

Contravention by lead auditor

130AA(4)
A person contravenes this subsection if:

(a) the person is the lead auditor for an audit of a registrable superannuation entity; and

(b) the person forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and

(c)

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the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:

(i) audit functions;

(ii) any other functions if, in the course of, or in connection with, the performance of the functions by the RSE audit firm or RSE audit company, the person obtained sufficient information to enable the person to assess the financial position of the entity; and

(d) the person does not, immediately after the person forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing.

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No civil liability for telling about a matter

130AA(5)
A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4).

Offences - RSE audit company

130AA(6)
A company commits an offence if the company contravenes subsection (1).

Penalty: 250 penalty units.

130AA(7)
A company commits an offence if the company contravenes subsection (1).

Penalty: 125 penalty units.

130AA(8)
An offence against subsection (7) is an offence of strict liability.

Offences - lead auditor and member of RSE audit firm

130AA(9)
A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 50 penalty units.

130AA(10)
A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 25 penalty units.

130AA(11)
An offence against subsection (10) is an offence of strict liability.

When financial position is unsatisfactory

130AA(11A)

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130AA(11B)

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Subsection (11A) does not limit the matters that a person may consider in forming such an opinion.

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130AA(12)
For the purposes of this section, the financial position of an entity is taken to be unsatisfactory if, and only if, under the regulations, the financial position of the entity is treated as unsatisfactory.

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SECTION 130A AUDITOR OR ACTUARY MAY GIVE INFORMATION TO THE REGULATOR

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130A(1)

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A person who is or was an auditor or actuary of a superannuation entity may give to the Regulator information about the entity or a trustee of the entity obtained in the course of, or in connection with, the performance by the person of audit or actuarial functions under:

(a) this Act; or

(b) the regulations; or

(ba) the prudential standards; or

(c)

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

(d)

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the Corporations Act 2001;

if the person considers that giving the information will assist the Regulator in performing its functions under this Act, the regulations, the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023.

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130A(2)

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This section applies to a firm as if it were a person.

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SECTION 130B SELF INCRIMINATION

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130B(1)

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An individual is not excused from complying with a requirement under section 129, 129A, 130 or 130AA to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.

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130B(2)
The information given by the individual in compliance with such a requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information, if:

(a) before giving the information, the individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and

(b) giving the information might in fact tend to incriminate the individual or make the individual liable to a penalty.

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SECTION 130BA AUDITOR MUST NOTIFY THE REGULATOR OF ATTEMPTS TO UNDULY INFLUENCE ETC. THE AUDITOR ETC.

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130BA(1)

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If an auditor of a superannuation entity is an individual and is aware of circumstances that amount to:

(a) an attempt, in relation to an audit of the superannuation entity, by any person to unduly influence, coerce, manipulate or mislead the auditor or a member of the audit team conducting the audit; or

(b) an attempt by any person to otherwise interfere with the proper conduct of the audit;

the auditor must notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances.

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130BA(2)
An auditor commits an offence if the auditor contravenes subsection (1).

Penalty: Imprisonment for 12 months or 50 penalty units, or both.

130BA(3)

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If the Regulator receives a notification under subsection (1) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001, the Regulator must:

(a) give a copy of the notification to ASIC; and

(b) do so as soon as practicable after receiving the notification.

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130BA(4)

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For the purposes of this section, audit means:

(a) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or

(b) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001; or

(c) an audit of a self managed superannuation fund.

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SECTION 130BAA LEAD AUDITOR - OBLIGATION TO NOTIFY THE REGULATOR OF ATTEMPTS TO UNDULY INFLUENCE ETC. THEAUDITOR ETC.

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Contravention by RSE audit company

130BAA(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit is aware of circumstances that amount to:

(i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or

(ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and

(b) the lead auditor does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.

Contravention by member of RSE audit firm

130BAA(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit is aware of circumstances that amount to:

(i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or

(ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and

130BAA(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:

(a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or

(b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:

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

Contravention by lead auditor

130BAA(4)
A person contravenes this subsection if:

(a) the person is the lead auditor for an audit of a registrable superannuation entity; and

(a) the person is aware of circumstances that amount to:

(i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or

(ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and

(b) the person does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances.

Offence-RSE audit company

130BAA(5)
A company commits an offence if the company contravenes subsection (1).

Penalty: 250 penalty units.

Offence - lead auditor and member of RSE audit firm

130BAA(6)
A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: Imprisonment for 12 months or 50 penalty units, or both.

Other matters

130BAA(7)
If the Regulator receives a notification under subsection (1), (2) or (4) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001, the Regulator must:

(a) give a copy of the notification to ASIC; and

(b) do so as soon as practicable after receiving the notification.

130BAA(8)
For the purposes of this section, audit means:

(a) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or

(b) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001.

View history note

SECTION 130BB GIVING FALSE OR MISLEADING INFORMATION TO AUDITOR

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130BB(1) Offence - person knows the information is false or misleading etc.

A person commits an offence if:

(a) the person is:

(i) the trustee of a superannuation entity; or

(ii) a responsible officer of the trustee of a superannuation entity; or

(iii) an employee of the trustee of a superannuation entity; and

(b) the person gives information, or allows information to be given, to an auditor of the superannuation entity; and

(c) the information relates to the affairs of the superannuation entity; and

(d) the person knows that the information:

(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 5 years or 200 penalty units, or both.

130BB(2) Offence - person fails to ensure the information is not false or misleading etc.

A person commits an offence if:

(a) the person is:

(i) the trustee of a superannuation entity; or

(ii) a responsible officer of the trustee of a superannuation entity; or

(iii) an employee of the trustee of a superannuation entity; and

(b) the person gives information, or allows information to be given, to an auditor of the superannuation entity; and

(c) the information relates to the affairs of the superannuation entity; and

(d) the information:

(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect; and

(e) the person did not take reasonable steps to ensure that the information:

(i) was not false or misleading in a material particular; or

(ii) was not missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 2 years or 100 penalty units, or both.

130BB(3) Determining whether information is false or misleading.

If information is given to the auditor in response to a question asked by the auditor, the information and the question must be considered together in determining whether the information is false or misleading.

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SECTION 130C ACTUARIES AND AUDITORS - FAILURE TO IMPLEMENT ACTUARIAL RECOMMENDATIONS

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130C(1) When section applies.

This section applies to a person in relation to a defined benefit fund that is a registrable superannuation entity if:

(aa)

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the person is an individual; and

(a)

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the person forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:

(i) a report of an actuary obtained under the regulations or the prudential standards; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(b)

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the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions in relation to the entity under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001.

View history note

130C(2) Trustee and Regulator to be told about the matter.

Subject to subsection (3), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):

(a) tell a trustee of the fund about the matter in writing; and

(b) if the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of members or beneficiaries of the fund - tell the Regulator about the matter in writing.

130C(3) The person may not have to tell a trustee or the Regulator about the matter.

The person does not have to:

(a) tell a trustee of the fund about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the fund about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person; or

(b) tell the Regulator about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person.

130C(4) Penalties for misinformation.

A person (the first person ) commits an offence if:

(a) this section applies to the first person; and

(b) the first person is aware of a matter that must, under this section, be told to a trustee; and

(c) the first person tells another person to whom this section applies that the first person has told a trustee about the matter; and

(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

130C(4A)
A person (the first person ) commits an offence if:

(a) this section applies to the first person; and

(b) the first person is aware of a matter that must, under this section, be told to the Regulator; and

(c) the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and

(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

130C(5) No civil liability for telling about a matter.

A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the fund, about a matter as required by this section.

130C(6) Offences.

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A person commits an offence if the person contravenes subsection (2).

Penalty: 50 penalty units.

130C(7)

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A person commits an offence if the person contravenes subsection (2). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1:

For strict liability , see section 6.1 of the Criminal Code.

Note 2:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

SECTION 130CA LEAD AUDITORS - FAILURE TO IMPLEMENT ACTUARIAL RECOMMENDATIONS

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Contravention by RSE audit company

130CA(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the entity is a defined benefit fund; and

(b) the lead auditor for the audit forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:

(i) a report of an actuary obtained under the regulations or the prudential standards; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(c) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(d) the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

Contravention by member of RSE audit firm

130CA(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the entity is a defined benefit fund; and

(i) a report of an actuary obtained under the regulations or the prudential standards; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(c) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(d) the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion isof such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

130CA(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:

(a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or

(b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:

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

Contravention by lead auditor

130CA(4)
A person contravenes this subsection if:

(a) the person is the lead auditor for an audit of a registrable superannuation entity; and

(b) the person forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:

(i) a report of an actuary obtained under the regulations or the prudential standards; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(d) the person does not, immediately after the person forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the person has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

No civil liability for telling about a matter

130CA(5)
A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4).

Offences - RSE audit company

130CA(6)
A company commits an offence if the company contravenes subsection (1).

Penalty: 250 penalty units.

130CA(7)
A company commits an offence if the company contravenes subsection (1).

Penalty: 125 penalty units.

130CA(8)
An offence against subsection (7) is an offence of strict liability.

Offences - lead auditor and member of RSE audit firm

130CA(9)
A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 50 penalty units.

130CA(10)
A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 25 penalty units.

130CA(11)
An offence against subsection (10) isan offence of strict liability.

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Division 3 - Disqualifying and removing actuaries and auditors

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SECTION 130D COURT POWER OF DISQUALIFICATION - AUDITOR OR ACTUARY

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130D(1)

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This section applies to the extent that the Regulator is APRA or ASIC.

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130D(2)

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On application by the Regulator, the Federal Court of Australia may, by order, disqualify a person (other than a company) from being or acting as a person referred to in subsection (3), for a period that the Court considers appropriate, if the Court is satisfied:

(a) as mentioned in subsection (4); and

(b) that the disqualification is justified.

Note:

For offences relating to persons disqualified under this section, see section 131C.

View history note

130D(3)

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For the purposes of subsection (2), the Court may disqualify a person from being or acting as an auditor, lead auditor or actuary, for the purposes of this Act, of:

(a) a particular superannuation entity; or

(b) a class of superannuation entities; or

(c) any superannuation entity.

View history note

130D(4)
The Court may disqualify a person, in accordance with subsection (2), if the Court is satisfied that:

(a)

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the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:

(i) the duties of an auditor or actuary under this Act, the regulations , the prudential standards or Chapter 2M of the Corporations Act 2001; or

(ia) the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor or actuary; or

(iii) any functions that an auditor or actuary is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001; or

(iv) any duties required to be performed under the Financial Accountability Regime Act 2023; or

(aa)

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the person has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or

(ab)

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the person has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or

(b) the person is otherwise not a fit and proper person to be a person referred to in subsection (3).

View history note

130D(5)
In deciding whether it is satisfied as mentioned in subsection (4), the Court may take into account:

(a)

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any matters specified in the regulations or the prudential standards for the purposes of this paragraph; and

(b) any other matters the Court considers relevant.

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130D(5A)

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In deciding whether it is satisfied as mentioned in paragraph (4)(b), the Court may also take into account any criteria for fitness and propriety that are relevant to the person as auditor or actuary set out in the prudential standards.

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130D(6)
In deciding whether the disqualification is justified as mentioned in paragraph (2)(b), the Court may have regard to:

(a)

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the person's conduct in relation to his or her duties under this Act, the regulations and the prudential standards; and

(b) any other matters the Court considers relevant.

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130D(7)

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As soon as practicable after the Court disqualifies a person under this section, the Regulator must, by notifiable instrument, publish particulars of the disqualification.

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SECTION 130E COURT POWER TO REVOKE OR VARY A DISQUALIFICATION ETC.

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130E(1)

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A person who is disqualified under section 130D, or the Regulator (to the extent that the Regulator is APRA or ASIC), may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130D.

View history note

130E(2)
At least 21 days before commencing the proceedings, written notice of the application must be lodged:

(a) if the person who is disqualified makes the application - by the person with the Regulator; or

(b) if the Regulator makes the application - by the Regulator with the person who is disqualified.

View history note

SECTION 130EA COURT POWER OF DISQUALIFICATION - AUDIT FIRM OR AUDIT COMPANY

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130EA(1)
On application by ASIC, the Federal Court of Australia may, by order:

(a) disqualify a firm from being or acting as an auditor of a registrable superannuation entity; or

(b) disqualify a company from being or acting as an auditor of a registrable superannuation entity;

for a period that the Court considers appropriate, if the Court is satisfied:

(c) as mentioned in subsection (2); and

(d) that the disqualification is justified.

Note:

For offences relating to firms or companies disqualified under this section, see sections 131CA and 131CB.

130EA(2)
The Court may disqualify a firm or company, in accordance with subsection (1), if the Court is satisfied that:

(a) the firm or company has failed to put in place appropriate processes and systems to enable it to carry out or perform adequately and properly:

(i) its duties as an RSE audit firm or RSE audit company under this Act, the regulations or Chapter 2M of the Corporations Act 2001; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an RSE audit firm or RSE audit company; or

(iii) any functions that an RSE audit firm or RSE audit company is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001; or

(b) the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company meets the relevant eligibility criteria set out in the prudential standards; or

(c) the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company is a fit and proper person to be a lead auditor.

130EA(3)
In deciding whether it is satisfied as mentioned in subsection (2), the Court may take into account:

(a) any matters specified in the regulations for the purposes of this paragraph; and

(b) any other matters the Court considers relevant.

130EA(4)
As soon as practicable after the Court:

(a) disqualifies a firm under this section; or

(b) disqualifies a company under this section;

ASIC must cause particulars of the disqualification to be published in the Gazette.

View history note

SECTION 130EB COURT POWER TO REVOKE OR VARY A DISQUALIFICATION ETC.

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130EB(1)
A firm or company that is disqualified under section 130EA, or ASIC, may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130EA.

130EB(2)
At least 21 days before commencing the proceedings, written notice of the application must be lodged:

(a) if the firm or company that is disqualified makes the application - by the person with ASIC; or

(b) if ASIC makes the application - by ASIC with the firm or company that is disqualified.

View history note

SECTION 130F APPROVED SMSF AUDITORS - DISQUALIFICATION AND SUSPENSION ORDERS

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Application of section

130F(1)
This section applies to the extent that the Regulator is ASIC.

Disqualification orders and suspension orders

130F(2)
The Regulator may make a written order disqualifying a person from being an approved SMSF auditor, or suspending a person's registration as an approved SMSF auditor, if:

(a) the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:

(i) the duties of an auditor under this Act or the regulations; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or

(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001; or

(b) the person has failed to comply with a condition, or additional condition, imposed under section 128D on the person's registration as an approved SMSF auditor; or

(c) the person has made a false declaration in:

(i) an application for registration as an approved SMSF auditor; or

(ii) a statement given to the Regulator under section 128G; or

(d) the person is otherwise not a fit and proper person to be an approved SMSF auditor for the purposes of this Act.

Note:

For offences relating to persons disqualified or suspended under this section, see section 131C.

130F(3)
The Regulator must give a copy of the order to the person.

Date of effect

130F(4)
The order takes effect on the day specified in the order. The specified day must be within the 28 day period beginning on the day on which the order was made.

Publication

130F(5)

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If the Regulator's decision is to make an order under this section disqualifying a person from being an approved SMSF auditor, the Regulator must, by notifiable instrument, publish a copy of the order as soon as practicable after the order is made.

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130F(6)

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If the Regulator's decision to make the disqualification order is varied or revoked by the Regulator as a result of a reconsideration under subsection 344(4), the Regulator must, by notifiable instrument, give notice of the variation or revocation as soon as practicable after the decision to vary or revoke the order is made.

View history note

130F(7)

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If:

(a) the Regulator's decision to make the disqualification order is confirmed or varied by the Regulator as a result of a reconsideration under subsection 344(4); and

(b)

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the decision as so confirmed or varied is varied or set aside by the Administrative Review Tribunal;

the Regulator must, by notifiable instrument, give notice of the Tribunal's decision as soon as practicable after it is made.

View history note

Revocation

130F(8)
The Regulator may revoke an order under this section. The Regulator's power to revoke may be exercised:

(a) on the Regulator's own initiative; or

(b) on written application made by the person disqualified or suspended.

Revocation - decision on application

130F(9)
If an application is made for the revocation of the order, the Regulator must decide to:

(a) revoke the order; or

(b) refuse to revoke the order.

Revocation - grounds

130F(10)
The Regulator must not revoke the order unless the Regulator is satisfied that the person concerned:

(a) is likely to carry out and perform adequately and properly the duties of an approved SMSF auditor under this Act or the regulations; and

(b) is otherwise a fit and proper person to be an approved SMSF auditor for the purposes of this Act.

Revocation - date of effect

130F(11)
A revocation of the order takes effect on the day the revocation is made.

Revocation - reasons for refusing to revoke

130F(12)
If the Regulator decides to refuse an application for revocation of the order, the Regulator must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision.

Publication

130F(13)

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If the order that the Regulator revokes under subsection (8) is an order disqualifying a person from being an approved SMSF auditor, the Regulator must, by notifiable instrument, publish particulars of the revocation as soon as practicable after it occurs.

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SECTION 131 ACTUARIES - DISQUALIFICATION ORDERS
Application of section

131(1A)

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This section applies to the extent that the Regulator is the Commissioner of Taxation.

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Disqualification order

131(1)

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The Regulator may make a written order (a disqualification order ) disqualifying a person from being an actuary for the purposes of this Act if:

(a)

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the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:

(i) the duties of an actuary under this Act or the regulations; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an actuary; or

(iii) any functions that an actuary is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001; or

(b)

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the person is otherwise not a fit and proper person to be an actuary for the purposes of this Act.

Note:

For offences relating to persons disqualified under this section, see section 131C.

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Date of effect

131(2)
A disqualification order takes effect on the day specified in the order. The specified day must be within the 28-day period beginning on the day on which the order was made.

Notification

131(3)

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The Regulator must give a copy of the order to the person.

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Publication

131(4)

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The Regulator must, by notifiable instrument, publish particulars of the disqualification order as soon as practicable after it is made.

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131(4A)

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If the Regulator's decision to make the disqualification order is varied or revoked by the Regulator as a result of a reconsideration under subsection 344(4), the Regulator must, by notifiable instrument, publish particulars of the variation or revocation as soon as practicable after the decision is made.

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131(4B)

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If:

(a)

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the Regulator's decision to make the disqualification order is confirmed or varied by the Regulator as a result of a reconsideration under subsection 344(4); and

(b)

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the decision as so confirmed or varied is varied or set aside by the Administrative Review Tribunal;

the Regulator must, by notifiable instrument, publish particulars of the Tribunal's decision as soon as practicable after it is given.

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Revocation

131(5)

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The Regulator may revoke a disqualification order. The Regulator's power to revoke may be exercised:

(a)

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on the Regulator's own initiative; or

(b) on written application made by the disqualified person.

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Revocation - decision on application

131(6)

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If an application is made for the revocation of a disqualification order, the Regulator must decide to:

(a) revoke the order; or

(b) refuse to revoke the order.

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Revocation - grounds

131(7)

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The Regulator must not revoke a disqualification order unless the Regulator is satisfied that the person concerned:

(a)

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is likely to carry out and perform adequately and properly the duties of an actuary under this Act or the regulations; and

(b)

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is otherwise a fit and proper person to be an actuary for the purposes of this Act.

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Revocation - date of effect

131(8)
A revocation of a disqualification order takes effect on the day the revocation is made.

Reasons for revocation

131(9)

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If the Regulator decides to refuse an application for revocation of a disqualification order, the Regulator must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision.

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Publication

131(10)

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If the Regulator revokes a disqualification order under subsection (5), the Regulator must, by notifiable instrument, publish particulars of the revocation as soon as practicable after it occurs.

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SECTION 131AA APRA MAY DIRECT REMOVAL OF AUDITOR OR ACTUARY

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131AA(1)

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APRA may, if satisfied there is a ground under subsection (2), give a written direction to the trustee or trustees of a superannuation entity that is not a self managed superannuation fund to end the appointment of a person as:

(a)

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the auditor of the superannuation entity; or

(b) the actuary of the superannuation entity.

Note:

For strict liability , see section 6.1 of the Criminal Code.

Firm

131AA(11)

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This section applies to a firm as if it were a person.

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Division 4 - Offences and failure to carry out duties etc.

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View history note

SECTION 131A THE REGULATOR MAY REFER MATTERS TO A PROFESSIONAL ASSOCIATION

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131A(1)

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If the Regulator is of the opinion that an individual RSE auditor, a lead auditor or a superannuation actuary:

(a)

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has failed, whether within or outside Australia, to carry out or perform adequately and properly:

(i) the duties of an auditor or an actuary under this Act, the regulations or the prudential standards; or

(ia) the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor or an actuary; or

(iii) any functions that an auditor or actuary is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001; or

(iv) any duties required to be performed under the Financial Accountability Regime Act 2023; or

(aa)

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has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or

(ab)

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has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or

(b)

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is otherwise not a fit and proper person to be an individual RSE auditor, a lead auditor or a superannuation actuary for the purposes of this Act;

the Regulator may refer the details of the matter to the persons specified in subsection (2).

Note:

Persons to whom the Regulator refers the details of the matter are subject to secrecy obligations under section 56 of the Australian Prudential Regulation Authority Act 1998 (if APRA is the Regulator) or Division 355 in Schedule 1 to the Taxation Administration Act 1953 (if the Commissioner of Taxation is the Regulator). In particular, see paragraph (c) of the definition of officer in subsection (1), and subsections (2), (9) and (10), of section 56 of the Australian Prudential Regulation Authority Act 1998 and sections 355-15 and 355-25 in Schedule 1 to the Taxation Administration Act 1953.

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131A(1A)

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In deciding whether it is satisfied as mentioned in paragraph (1)(b) in relation to a person who is or has been an individual RSE auditor, a lead auditor or an RSE actuary, the Regulator may also take into account any criteria for fitness and propriety that are relevant to the auditor or actuary set out in the prudential standards.

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131A(2)

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The persons specified in relation to an individual RSE auditor, a lead auditor or a superannuation actuary for the purposes of subsection (1) are those members of the auditor's or actuary's professional association whom the Regulator believes will be involved:

(a) in deciding whether the professional association should take any disciplinary or other action against the auditor or actuary in respect of the matter referred; or

(b) in taking that action.

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131A(3)

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In relation to an individual RSE auditor, a lead auditor or a superannuation actuary, the power of the Regulator under subsection (1) may be exercised whether or not an order disqualifying the auditor or actuary has been made under section 130D or 131.

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131A(4)

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If, under this section, the Regulator refers details of a matter involving an individual RSE auditor, a lead auditor or a superannuation actuary, the Regulator must, as soon as practicable but, in any event, not later than 7 days after the referral, by notice in writing given to the auditor or actuary, inform the auditor or actuary:

(a) of the fact that a matter has been referred under subsection (1); and

(b) of the nature of the matter so referred.

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SECTION 131B OFFENCE OF HOLDING ONESELF OUT AS AN ACTUARY OR AUDITOR

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131B(1)

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A person commits an offence if:

(a)

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the person holds themself out as a superannuation actuary; and

(b)

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the person is not a superannuation actuary.

Penalty: 50 penalty units.

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131B(2)

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A person commits an offence if:

(a) the person holds themself out as an approved SMSF auditor; and

(b) the person is not an approved SMSF auditor.

Penalty: 50 penalty units.

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131B(2A)

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A person commits an offence if:

(a)

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the person holds themself out as an RSE auditor; and

(b)

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the person is not an RSE auditor.

Penalty: 50 penalty units.

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131B(3)

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Subsections (1), (2) and (2A) are offences 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.

Note 3:

Note:

For strict liability , see section 6.1 of the Criminal Code.

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SECTION 131CA DISQUALIFIED FIRMS AND DISQUALIFIED COMPANIES NOT TO BE AN RSE AUDITOR

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131CA(1)
A person commits an offence if:

(a) the person is a member of a firm; and

(b) the firm is, or acts as, an RSE auditor; and

(c) the firm is disqualified under section 130EA; and

(d) the person knows that the firm is so disqualified.

Penalty: Imprisonment for 2 years.

131CA(2)
A person commits an offence if:

(a) the person is, or acts as, an RSE auditor; and

(b) the person is a company; and

(c) the company is disqualified under section 130EA; and

(d) the person knows that the company is so disqualified.

Penalty: 600 penalty units.

131CA(3)
A person commits an offence if:

(a) the person is a member of a firm; and

(b) the firm is, or acts as, an RSE auditor; and

(c) the firm is disqualified under section 130EA.

Penalty: 60 penalty units.

131CA(4)
A person commits an offence if:

(a) the person is, or acts as, an RSE auditor; and

(b) the person is a company; and

(c) the company is disqualified under section 130EA.

Penalty: 300 penalty units.

131CA(5)
Subsections (3) and (4) are offences of strict liability.

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SECTION 131CB MEMBERS OR EMPLOYEES OF DISQUALIFIED FIRMS, AND DIRECTORS OR EMPLOYEES OF DISQUALIFIED COMPANIES, NOT TO BE RSE AUDITORS

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131CB(1)
A person commits an offence if:

(a) the person is, or acts as, an RSE auditor; and

(b) the person is a member or employee of a firm; and

(c) the firm is disqualified under section 130EA; and

(d) the person knows that the firm is so disqualified.

Penalty: Imprisonment for 2 years.

131CB(2)
A person commits an offence if:

(a) the person is, or acts as, an RSE auditor; and

(b) the person is a director or employee of a company; and

(c) the company is disqualified under section 130EA; and

(d) the person knows that the company is so disqualified.

Penalty: Imprisonment for 2 years.

131CB(3)
A person commits an offence if:

(a) the person is, or acts as, an RSE auditor; and

(b) the person is a member or employee of a firm; and

(c) the firm is disqualified under section 130EA.

Penalty: 60 penalty units.

131CB(4)
A person commits an offence if:

(a) the person is, or acts as, an RSE auditor; and

(b) the person is a director or employee of a company; and

(c) the company is disqualified under section 130EA.

Penalty: 60 penalty units.

131CB(5)
Subsections (3) and (4) are offences of strict liability.

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Division 5 - Special provisions relating to firms and companies

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SECTION 131CC OFFENCES BY MEMBERS OF A FIRM

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131CC(1)
Section 131BA and subsection 131B(2A) apply to a firm as if it were a person, but with the changes set out in this section.

131CC(2)
An offence based on section 131BA or subsection 131B(2A) that would otherwise be committed by the firm is taken to have been committed by each member of the firm.

131CC(3)
A member of the firm does not commit an offence because of subsection (2) if the member:

(a) does not know of the circumstances that constitute the contravention of the provision concerned; or

(b) knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:

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

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SECTION 131CD CRIMINAL LIABILITY OF A FIRM OR COMPANY

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131CD(1)
For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a firm, an act or omission by an individual who is:

(a) a member of the firm; or

(b) an employee or agent of the firm;

acting within the actual or apparent scope of the individual's employment, or within the individual's actual or apparent authority, is also to be attributed to the firm.

131CD(2)
For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a company, an act or omission by an individual who is:

(a) an officer of the company; or

(b) an employee or agent of the company;

acting within the actual or apparent scope of the individual's employment, or within the individual's actual or apparent authority, is also to be attributed to the company.

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PART 16A - APRA'S POWERS TO ISSUE DIRECTIONS

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Division 1 - General powers to issue directions

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

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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)

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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.

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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)

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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.

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SECTION 131DA APRA MAY GIVE DIRECTIONS IN RELATION TO THE CONDUCT OF A CONNECTED ENTITY OF AN RSE LICENSEE

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131DA(1)
APRA may give an RSE licensee a direction of a kind mentioned in subsection (5), or a direction to cause a connected entity of the RSE licensee to do or not to do something of a kind mentioned in subsection (5), if APRA has reason to believe that:

(a) a connected entity of 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

(b) a connected entity of the RSE licensee is likely to contravene a provision mentioned in paragraph (a); or

(c) the direction relates to a connected entity of the RSE licensee and is necessary in the interests of beneficiaries of a registrable superannuation entity of the RSE licensee; or

(d) a connected entity of the RSE licensee is, or is about to become, unable to meet the connected entity's liabilities; or

(e) there is, or there might be, a material risk to the security of the assets of a connected entity of the RSE licensee; or

(f) there has been, or there might be, a material deterioration in the financial condition of a connected entity of the RSE licensee; or

(g) a connected entity of the RSE licensee is conducting the entity's affairs in an improper or financially unsound way; or

(h) a connected entity of the RSE licensee is conducting the entity's affairs in a way that may cause or promote instability in the Australian financial system; or

(i) a connected entity of the RSE licensee is conducting the entity's affairs in a way that may cause it to be unable to continue to supply products or services to the RSE licensee, or a registrable superannuation entity of the RSE licensee; or

(j) the direction relates to a connected entity of the RSE licensee and the failure to issue a direction would materially prejudice the interests of beneficiaries of a registrable superannuation entity of the RSE licensee.

131DA(2)
However, APRA can only make a direction under subsection (1) as a result of a ground referred to in paragraph (1)(d), (e), (f), (g), (h) or (i) if APRA considers that the direction is reasonably necessary to ensure that the RSE licensee's duties as trustee of a registrable superannuation entity are properly performed.

131DA(3)
APRA may give a connected entity of an RSE licensee a direction of a kind mentioned in subsection (5) if:

(a) APRA has given the RSE licensee a direction under subsection (1) because one or more of the grounds referred to in that subsection have been satisfied in respect of the connected entity; or

(b) APRA may give the RSE licensee a direction under subsection (1) because one or more of the grounds referred to in that subsection have been satisfied in respect of the connected entity.

131DA(4)
APRA cannot give a direction under subsection (3) to a connected entity of a kind specified in regulations (if any) made for the purposes of this subsection.

131DA(5)
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) if the connected entity is a body corporate:

(i) to remove a responsible officer of the entity from office; or

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

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

(c) to order an audit of:

(i) the affairs of the connected entity; or

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

at the expense of the connected entity, by an auditor chosen by APRA;

(d) to:

(i) remove from office an auditor of the connected entity, or of a registrable superannuation entity of the RSE licensee; and

(ii) appoint another auditor to hold office for such term as APRA directs;

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

(f) to:

(i) remove from office an actuary of a registrable superannuation entity of the RSE licensee; and

(ii) appoint another actuary to hold office for such term as APRA directs;

(g) not to borrow any amount;

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

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

(j) not to discharge any liability of one or more of the following:

(i) the connected entity;

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

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

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

(i) the connected entity; or

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

131DA(6)
A direction under paragraph (5)(h) 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.

131DA(7)
Without limiting the generality of subsection (5), 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.

131DA(8)
The direction may deal with the time by which, or period during which, it is to be complied with.

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SECTION 131DB MACHINERY PROVISIONS RELATING TO DIRECTIONS UNDER THIS DIVISION

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131DB(1)
A direction under this Division must:

(a) be given by notice in writing:

(i) in the case of a direction to an RSE licensee under subsection 131D(1) or 131DA(1) - to the RSE licensee; and

(ii) in the case of a direction to a connected entity of an RSE licensee under subsection 131DA(3) - to the connected entity of the RSE licensee and the RSE licensee; and

(b) specify:

(i) in the case of a direction under subsection 131DA(3) - the ground referred to in subsection 131DA(1) as a result of which the direction is given; or

(ii) otherwise - the ground referred to in subsection 131D(1) or 131DA(1) as a result of which the direction is given.

131DB(2)
A direction under this Division is not a legislative instrument.

Note:

Under paragraph 11(2)(c) of the Legislation Act 2003, APRA may register a direction under this Division as a notifiable instrument.

131DB(3)
In deciding whether to give a direction under subsection 131D(1) to an RSE licensee, APRA may disregard any external support for the RSE licensee.

131DB(4)
In deciding whether to give a direction under subsection 131DA(1) or (3), APRA may disregard any external support for the RSE licensee, or the connected entity of the RSE licensee, in relation to which the direction is given.

131DB(5)
The regulations may specify that a particular form of support is not external support for the purposes of subsection (3) or (4).

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SECTION 131DC VARYING OR REVOKING A DIRECTION UNDER THIS DIVISION

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131DC(1)
APRA may:

(a) vary a direction given to an RSE licensee under this Division, by notice in writing to the RSE licensee; or

(b) vary a direction given to a connected entity of an RSE licensee under this Division, by notice in writing to the connected entity and the RSE licensee;

if, at the time of the variation, APRA considers that the variation is necessary and appropriate.

131DC(2)
A direction under this Division has effect until APRA revokes it.

131DC(3)
APRA may:

(a) revoke a direction given to an RSE licensee under this Division, by notice in writing to the RSE licensee; or

(b) revoke a direction given to a connected entity of an RSE licensee under this Division, by notice in writing to the connected entity and the RSE licensee;

if, at the time of revocation, APRA considers that the direction is no longer necessary or appropriate.

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SECTION 131DD NON-COMPLIANCE WITH A DIRECTION

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Failure to comply with a direction given to an RSE licensee - failure by the RSE licensee

131DD(1)
A person commits an offence if:

(a) the person is an RSE licensee or a member of a group of individual trustees that is an RSE licensee; and

(b) a direction is given to the RSE licensee under this Division; and

(c) the RSE licensee does, or fails to do, something; and

(d) doing, or failing to do, the thing results in a contravention of the direction.

Penalty: 100 penalty units.

Note:

If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Failure to comply with a direction given to an RSE licensee - failure by an officer of the RSE licensee

131DD(2)
A person commits an offence if:

(a) the person is an officer of an RSE licensee that is a body corporate; and

(b) the officer fails to take reasonable steps to ensure that the RSE licensee complies with a direction given to it under this Division; and

(c) the officer's duties include ensuring that the RSE licensee complies with the direction or with a class of directions that includes the direction; and

(d) the RSE licensee does not comply with the direction.

Penalty: 100 penalty units.

Failure to comply with a direction given to a connected entity of an RSE licensee - failure by the connected entity

131DD(3)
A connected entity of an RSE licensee commits an offence if:

(a) a direction is given to the connected entity under this Division; and

(b) the connected entity does, or fails to do, something; and

(c) doing, or failing to do, the thing results in a contravention of the direction.

Penalty: 100 penalty units.

Note:

If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Failure to comply with a direction given to a connected entity of an RSE licensee - failure by an officer of the connected entity

131DD(4)
A person commits an offence if:

(a) the person is an officer of a body corporate that is a connected entity of an RSE licensee; and

(b) the officer fails to take reasonable steps to ensure that the connected entity complies with a direction given to it under this Division; and

(c) the officer's duties include ensuring that the connected entity complies with the direction or with a class of directions that includes the direction; and

(d) the connected entity fails to comply with the direction.

Penalty: 100 penalty units.

Offence for each day on which a person continues to commit an offence

131DD(5)
If a person commits an offence against subsection (1), (2), (3) or (4), the person commits an offence against that subsection in respect of:

(a) the first day on which the offence is committed; and

(b) each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).

Note:

This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Strict liability

131DD(6)
Subsections (1), (2), (3) and (4) are offences of strict liability.

Meaning of officer

131DD(7)
In this section, officer has the meaning given by section 9 of the Corporations Act 2001.

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Division 2 - Directions to relinquish control over an RSE licensee

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SECTION 131E

131E OBJECT OF THIS DIVISION

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The object of this Division is to enable the Regulator to direct a person who is in control of an RSE licensee to relinquish that control if there has been, is or is likely to be interference with the ability of the RSE licensee to satisfy its obligations in relation to a superannuation entity.

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SECTION 131EA

131EA APPLICATION OF THIS DIVISION

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This Division applies in relation to an RSE licensee that is a body corporate.

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SECTION 131EB DIRECTION TO RELINQUISH CONTROL

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131EB(1)
The Regulator may give a person a direction to relinquish control of an RSE licensee if:

(a) the Regulator has reason to believe that:

(i) the person has a controlling stake in the RSE licensee; or

(ii) the person has practical control of the RSE licensee; and

(b) the Regulator has reason to believe that because of:

(i) the person's controlling stake, or practical control, of the RSE licensee; or

(ii) the way in which control has been, is or is likely to be exercised;

the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.

131EB(2)
The Regulator may give a person a direction to relinquish control of an RSE licensee if:

(a) the Regulator has reason to believe that the person has a controlling stake in the RSE licensee; and

(b) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee.

131EB(3)
The Regulator may give a person a direction to relinquish control of an RSE licensee if:

(a) the Regulator has reason to believe that that the person has a controlling stake in the RSE licensee; and

(b) the person has approval under section 29HD to hold a controlling stake in the RSE licensee; and

(c) information given to the Regulator in relation to the application for approval was false or misleading in a material particular.

131EB(4)
To avoid doubt, a direction under subsection (1) or (3) to a person to relinquish a controlling stake in an RSE licensee may be given even if the person has approval to hold a controlling stake in the RSE licensee.

131EB(5)
The direction must be given in writing.

131EB(6)
The Regulator must give the person:

(a) a copy of the direction; and

(b) a statement of the Regulator's reasons for giving the direction.

131EB(7)
The Regulator may revoke a direction to relinquish control of an RSE licensee.

131EB(8)
The revocation must be in writing and a copy of the revocation must be given to the person.

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SECTION 131EC

131EC MEANING OF PRACTICAL CONTROL

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A person has practical control over an RSE licensee that is a body corporate if:

(a) either of the following is satisfied:

(i) the directors of the RSE licensee are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates);

(ii) the person (either alone or together with associates) is in a position to exercise control over the RSE licensee; and

(b) the person does not hold a controlling stake in the RSE licensee.

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SECTION 131ED CONSEQUENCES OF A DIRECTION TO RELINQUISH CONTROL

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131ED(1)
If the Regulator gives a person a direction to relinquish control over an RSE licensee, the person must take such steps as are necessary to ensure that:

(a) the directors of the RSE licensee are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and

(b) the person (either alone or together with associates) is not in a position to exercise control over the RSE licensee; and

(c) the person does not hold a controlling stake in the RSE licensee.

131ED(2)
The person must take those steps:

(a) within 90 days after being given a copy of the direction; or

(b) if the Regulator, by written notice given to the person, allows a longer period for compliance - before the end of that longer period.

131ED(3)
A person commits an offence if:

(a) the person is subject to a requirement under this section; and

(b) the person intentionally or recklessly contravenes the requirement.

Penalty: 400 penalty units.

Note:

Section 4K (Continuing and multiple offences) of the Crimes Act 1914 applies to an offence under subsection (3), so a person commits an offence, after the period for relinquishment expires, on each day on which the person does not relinquish control.

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SECTION 131EE INTERIM ORDERS

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Orders where the direction is stayed by the Administrative Review Tribunal

131EE(1)
The Regulator may apply to the Federal Court of Australia (the Federal Court ) for orders under subsection (2) if:

(a) the Regulator has given a direction to relinquish control over an RSE licensee to a person; and

(b)

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an application has been made to the Administrative Review Tribunal for a review of the decision to give the direction; and

(c) the Tribunal has made an order or orders staying or otherwise affecting the operation or implementation of the decision to give the direction, or a part of that decision.

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131EE(2)
The Federal Court may make such orders as the court considers appropriate to ensure that the person does not, during the period to which an order of the Tribunal relates, exercise control over the RSE licensee in a manner that results in the RSE licensee being unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.

Orders to deal with conduct during the compliance period

131EE(3)
The Regulator may apply to the Federal Court of Australia (the Federal Court ) for orders under subsection (4) if:

(a) a direction to relinquish control over an RSE licensee is in force in relation to a person; and

(b) the Regulator has reason to believe that the person may, during the period under subsection 131ED(2) during which the person is required to take steps under the direction (the compliance period ), exercise control over the RSE licensee in a manner that results in the RSE licensee being unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.

131EE(4)
The Federal Court may make such orders as the court considers appropriate to ensure that the person does not, during the compliance period, exercise control over the RSE licensee in a manner that results in the RSE being unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.

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SECTION 131EF Remedial orders

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131EF(1)
The Regulator may apply to the Federal Court of Australia (the Federal Court ) for orders under this section if a direction to relinquish control over an RSE licensee is in force in relation to a person.

131EF(2)
The Federal Court may make such orders as the court considers appropriate to ensure that:

(b) the person (either alone or together with associates) is not in a position to exercise control over the RSE licensee; and

(c) the person does not hold a controlling stake in the RSE licensee.

131EF(3)
However, the Federal Court may only make orders under this section if the court is satisfied that:

(a) both of the following are satisfied:

(i) the person holds a controlling stake in the RSE licensee, or has practical control of the RSE licensee;

(ii) because of the person's control of the RSE licensee, or the way in which that control has been, is or is likely to be exercised, the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A; or

(b) both of the following are satisfied:

(i) the person holds a controlling stake in the RSE licensee;

(ii) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee; or

(c) each of the following is satisfied:

(i) the person has a controlling stake in the RSE licensee;

(ii) the person has approval under section 29HD to hold a controlling stake in the RSE licensee;

(iii) information given to the Regulator in relation to the application for approval was false or misleading in a material particular.

131EF(4)
The Federal Court's orders include:

(a) an order directing the disposal of shares; or

(b) an order restraining the exercise of any rights attached to shares; or

(c) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person; or

(d) an order that any exercise of rights attached to shares be disregarded.

131EF(5)
Subsection (4) does not, by implication, limit subsection (2).

131EF(6)
In addition to the Federal Court's powers under subsections (2) and (4), the court:

(a) has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and

(b) has power to make an order containing such ancillary or consequential provisions as the court thinks just.

131EF(7)
The Federal Court may, before making an order under this section, direct that notice of the Regulator's application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

131EF(8)
The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

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Division 3 - Provisions relating to all directions under this act

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SECTION 131F APRA MAY GIVE MORE THAN ONE DIRECTION

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131F(1)
APRA is not precluded from giving a direction under a provision of this Act because APRA has given, or may give, another direction under that or any other provision of this Act.

131F(2)
The kinds of direction that may be given under one provision of this Act are not limited by any direction given, or that may be given, under that or any other provision of this Act.

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SECTION 131FA RSE LICENSEE AND CONNECTED ENTITY HAVE POWER TO COMPLY WITH A DIRECTION UNDER THIS ACT

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131FA(1)
An RSE licensee has power to comply with a direction given to the RSE licensee under this Act despite anything in its constitution or any contract or arrangement to which it is a party.

131FA(2)
If the direction requires the RSE licensee to cause a connected entity to do, or not to do, something:

(a) the RSE licensee has power to cause the connected entity to do, or to not to do, the thing; and

(b) the connected entity has power to do, or not to do, the thing;

despite anything in the connected entity's constitution or any contract or arrangement to which the connected entity is a party.

131FA(3)
A connected entity of an RSE licensee has power to comply with a direction given to the connected entity under this Act despite anything in its constitution or any contract or arrangement to which it is a party.

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SECTION 131FB PROTECTION FROM LIABILITY - GENERAL

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131FB(1)
A person is not subject to any liability to any person in respect of anything done, or omitted to be done, in good faith and without negligence in the exercise or performance, or the purported exercise or performance, of powers, functions or duties under this Act.

131FB(2)
To avoid doubt, any information provided by a person to APRA under section 130A is taken, for the purposes of subsection (1), to be provided in the exercise of a power or the performance of a function under this Act.

131FB(3)
Subsection (1) does not apply to a person referred to in section 58 of the Australian Prudential Regulation Authority Act 1998 and, to avoid doubt, does not affect the operation of that section.

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SECTION 131FC PROTECTION FROM LIABILITY - DIRECTIONS

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131FC(1)
An action, suit or proceeding (whether criminal or civil) does not lie against a person in relation to anything done, or omitted to be done, in good faith by the person if:

(a) the person does the thing, or omits to do the thing, for the purpose of complying with a direction under this Act given by APRA to an RSE licensee, or a connected entity of an RSE licensee; and

(b) it is reasonable for the person to do the thing, or to omit to do the thing, in order to achieve that purpose; and

(c) the person is any of the following:

(i) an officer of the RSE licensee, or of the connected entity of the RSE licensee;

(ii) an employee or agent of the RSE licensee, or of the connected entity of the RSE licensee.

131FC(2)
In subsection (1):

employee
:

(a) of an RSE licensee, includes a person engaged to provide advice or services to the RSE licensee; or

(b) of a connected entity of an RSE licensee, includes a person engaged to provide advice or services to the connected entity.

officer
has the meaning given by section 9 of the Corporations Act 2001.

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SECTION 131FD

131FD PROTECTION FROM LIABILITY - PROVISIONS DO NOT LIMIT EACH OTHER

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The following provisions do not limit the operation of each other:

(a) (Repealed by No 76 of 2023)

(b) section 131FB;

(c) section 131FC;

(d) section 58 of the Australian Prudential Regulation Authority Act 1998.

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SECTION 131FE INFORMING THE TREASURER ABOUT ISSUE AND REVOCATION OF DIRECTIONS

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131FE(1)
If the Treasurer requests APRA to provide information about:

(a) any directions given under this Act to a particular entity; or

(b) any directions given under this Act, during a specified period, to any entity of a specified kind;

APRA must comply with the request.

131FE(2)
APRA may provide any information that it considers appropriate to the Treasurer about:

(a) any directions given under this Act at any time; or

(b) any revocations of any such directions.

131FE(3)
If APRA provides the Treasurer with information about a direction and then later revokes the direction, APRA must notify the Treasurer of the revocation of the direction as soon as practicable after the revocation. Failure to notify the Treasurer does not affect the validity of the revocation.

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PART 17 - SUSPENSION OR REMOVAL OF TRUSTEE OF SUPERANNUATION ENTITY

SECTION 132

132 OBJECT OF PART

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The object of this Part is to provide for the suspension or removal of a trustee of a superannuation entity, and for the appointment of an acting trustee.

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SECTION 133 SUSPENSION OR REMOVAL OF TRUSTEE OF SUPERANNUATION ENTITY

133(1) Suspension or removal.

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The Regulator may suspend or remove a trustee of a superannuation entity if:

(a) either:

(i) for a trustee who is an individual and who is a disqualified person only because he or she was disqualified under section 126H - the individual is disqualified from being or acting as a trustee of that superannuation entity; and

(ii) otherwise - the trustee is a disqualified person within the meaning of Part 15; or

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(b) it appears to the Regulator that conduct that has been, is being, or is proposed to be, engaged in by the trustee or any other trustees of the entity may result in the financial position of the entity or of any other superannuation entity becoming unsatisfactory; or

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(c) if the trustee is a trustee of a registrable superannuation entity - the trustee is not an RSE licensee or a member of a group of individuals that is an RSE licensee; or

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(d) (Repealed by No 53 of 2004)

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(e) if the trustee is an RSE licensee - the RSE licensee breaches any of the conditions of its RSE licence; or

(f) the Regulator has reason to believe that:

(i) either a person holds a controlling stake in the RSE licensee or a person has practical control of the RSE licensee; and

(ii) because of the person's control of the RSE licensee, or the way in which that control has been, is or is likely to be exercised, the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A; or

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(g) the Regulator has reason to believe that:

(i) a person holds a controlling stake in an RSE licensee; and

(ii) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee.

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133(2) Period of suspension.

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A suspension of a trustee is to be for such period as the Regulator determines.

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133(3) Extension of period of suspension.

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A suspension of a trustee may be extended for such further period or such further periods as the Regulator determines.

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133(4) Reasons.

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If the Regulator makes a decision:

(a) suspending or removing a trustee; or

(b) extending the suspension of a trustee;

the Regulator must cause to be given to the trustee a written notice:

(c) setting out that decision; and

(d) giving the reasons for that decision.

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133(5)
(Repealed by No 25 of 2008)

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SECTION 134 APRA TO APPOINT ACTING TRUSTEE IN CASES OF SUSPENSION OR REMOVAL

134(1) Suspension.

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If the Regulator suspends all of the trustees of a superannuation entity, the Regulator must appoint a constitutional corporation or an individual to act as the trustee during the period of the suspension. The appointee is called the acting trustee .

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134(2) Removal.

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If the Regulator removes all of the trustees of a superannuation entity, the Regulator must appoint a constitutional corporation or an individual to act as the trustee until the vacancy in the position of trustee is filled. The appointee is called the acting trustee .

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134(3) Pension funds.

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The Regulator must not appoint an individual as the acting trustee of a superannuation entity unless the governing rules of the entity provide that the sole or primary purpose of the entity is the provision of old-age pensions.

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134(4) Groups.

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If:

(a) there is a group of individual trustees of a superannuation entity; and

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(b) the Regulator suspends or removes all of the trustees; and

(c) the Regulator is satisfied that any one or more of the persons who were suspended or removed is a fit and proper person to be appointed as the acting trustee;

this Act does not prevent the Regulator from so appointing that person.

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134(5)

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In deciding whether it is satisfied as mentioned in paragraph (4)(c) in relation to a person who is or has been a trustee of a registrable superannuation entity, the Regulator may also take into account any criteria for fitness and propriety that are relevant to the trustee set out in the prudential standards.

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SECTION 135 TERMS AND CONDITIONS OF APPOINTMENT OF ACTING TRUSTEE

135(1) [The Regulator's determination]

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The Regulator may determine the terms and conditions of the appointment of the acting trustee, including fees. The determination has effect despite anything in:

(a) any other provision of this Act; and

(b) the regulations; and

(ba) the prudential standards; and

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(c) any other law; and

(d) the entity's governing rules.

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135(2) [Fees]

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Without limiting subsection (1), the Regulator may make a determination under that subsection to the effect that the acting trustee's fees are to be paid out of the corpus of the entity concerned.

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135(3)

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If:

(a) a person (the former trustee ) is suspended or removed as a trustee of a superannuation entity; and

(b) a person is appointed under this Part to act as trustee of the superannuation entity; and

(c) the acting trustee is required under the terms and conditions of his or her appointment to give information to APRA; and

(d) the acting trustee gives the former trustee notice in writing of the requirement;

the former trustee must do all things reasonably practicable to assist the acting trustee to comply with the requirement.

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135(4)

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The former trustee commits an offence of strict liability if the former trustee fails to comply with subsection (3).

Penalty for contravention of this subsection: 50 penalty units.

Note:

For strict liability, see section 6.1 of the Criminal Code.

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SECTION 136

136 TERMINATION OF APPOINTMENT OF ACTING TRUSTEE

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The Regulator may terminate the appointment of the acting trustee at any time.

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SECTION 137

137 RESIGNATION OF ACTING TRUSTEE

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The acting trustee may resign by writing delivered to the Regulator. The resignation does not take effect until the end of the 7th day after the day on which it was delivered to the Regulator. (The delay gives the Regulator time to appoint a fresh acting trustee.)

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SECTION 138 PROPERTY VESTING ORDERS

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138(1) [Order on appointment of acting trustee]

If a person is appointed as acting trustee, the Regulator must make a written order vesting the property of the entity concerned in the acting trustee.

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138(2) [Appointment of acting trustee ends]

If the appointment of the acting trustee comes to an end, the Regulator must make a written order vesting the property of the entity concerned in:

(a) if there is to be a fresh acting trustee - the fresh acting trustee; or

(b) if the acting trustee acted during a period of suspension of the actual trustee and the suspension has come to an end - the actual trustee; or

(c) if the acting trustee acted because of a vacancy in the position of actual trustee and the acting trustee's appointment has come to an end because the vacancy in the position of actual trustee has been filled by a new actual trustee - the actual trustee.

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138(3) [Property immediately vested in law or equity]

If an order is made by the Regulator under this section vesting property of a superannuation entity in a person:

(a) if the property was vested in law in the trustee - subject to subsections (4) and (5), the property immediately vests in law in the person named in the order by force of this Act; and

(b) if the property was vested in equity in the trustee - the property immediately vests in equity in the person named in the order by force of this Act.

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138(4) [Registration of vesting order]

If:

(a) the property is of a kind whose transfer or transmission may be registered under a law of the Commonwealth, of a State or of a Territory; and

(b) that law enables the registration of such an order;

the property does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with.

138(5) [Registration of person named in order]

If:

(a) the property is of a kind whose transfer or transmission may be registered under a law of the Commonwealth, of a State or of a Territory; and

(b) that law enables the person named in the order to be registered as the owner of that property;

the property does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with.

SECTION 139

139 POWERS OF ACTING TRUSTEE
Subject to section 138, while a person is acting as trustee under this Part:

(a) the person has and may exercise all the rights, title and powers, and must perform all the functions and duties, of the trustee; and

(b) the entity's governing rules, this Act, the regulations, the prudential standards and any other law apply in relation to the person as if the person were the trustee.

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SECTION 139A ACTING TRUSTEE AUTHORISED TO OFFER A MYSUPER PRODUCT

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139A(1)
This section applies if:

(a) the trustee, or the trustees, of a regulated superannuation fund is or are suspended or removed; and

(b) before the suspension or removal, the RSE licensee of the fund was authorised to offer a class of beneficial interest in the fund as a MySuper product.

139A(2)
The Regulator must not appoint a person to act as trustee of the fund unless the person has made elections of the kind referred to in sections 29SAA, 29SAB and 29SAC.

139A(3)
The person appointed to act as trustee of the fund is taken to have been authorised to offer that class of beneficial interest in the fund as a MySuper product.

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SECTION 139B ACTING TRUSTEE AUTHORISED TO OPERATE AN ELIGIBLE ROLLOVER FUND

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139B(1)
This section applies if the trustee, or the trustees, of an eligible rollover fund is or are suspended or removed.

139B(2)
The Regulator must not appoint a person to act as trustee of the fund unless the person has made elections of the kind referred to in sections 242B and 242C.

139B(3)
The person appointed to act as trustee of the fund is taken to have been authorised to operate the eligible rollover fund.

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SECTION 140 ACTING TRUSTEE TO NOTIFY APPOINTMENT TO BENEFICIARIES

140(1)
If a person is appointed under this Part to act as trustee of a superannuation entity, the person must, as soon as practicable, give each beneficiary a notice about the appointment.

140(2)
The notice is to be in the approved form.

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140(3)

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A person who, without reasonable excuse, contravenes this section commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

140(3A)

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Subsection (3) 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.

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140(4)
A contravention of subsection (1) does not affect the validity of the appointment.

SECTION 141 THE REGULATOR MAY GIVE DIRECTIONS TO ACTING TRUSTEE

141(1) [The Regulator's directions]

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If a person is appointed under this Part to act as trustee of a superannuation entity, the Regulator may give a written notice to the person directing the person to do, or not to do, one or more specified acts or things in relation to the superannuation entity.

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141(2) [Penalty]

A person must not intentionally or recklessly contravene a direction under subsection (1).

Penalty: 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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141(3) [Validity of transaction]

This section does not affect the validity of a transaction entered into by a person in contravention of the notice.

SECTION 141A PROPERTY VESTED IN ACTING TRUSTEE - FORMER TRUSTEE'S OBLIGATIONS RELATING TO BOOKS, IDENTIFICATION OF PROPERTY AND TRANSFER OF PROPERTY

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141A(1)
This section applies if:

(a) after the commencement of this section, the Regulator makes an order under subsection 138(1) or (2) vesting the property of a superannuation entity in an acting trustee; or

(b) the Regulator made such an order before the commencement of this section and that order is still in force when this section commences.

141A(2)
In this section, the person in whom the property was vested immediately before the order was made is referred to as the former trustee .

141A(3)

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The former trustee commits an offence:

(a) if paragraph (1)(a) applies - if the former trustee does not, within 14 days of the order being made, give the acting trustee all books relating to the entity's affairs that are in the former trustee's possession, custody or control; or

(b) if paragraph (1)(b) applies - if the former trustee does not, within 14 days of the commencement of this section, give the acting trustee all books relating to the entity's affairs that are in the former trustee's possession, custody or control.

Penalty: 50 penalty units.

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141A(4)
The acting trustee may, by notice in writing to the former trustee, require the former trustee, so far as the former trustee can do so:

(a) to identify property of the entity; and

(b) to explain how the former trustee has kept account of that property.

141A(5)
The acting trustee may, by notice in writing to the former trustee, require the former trustee to take specified action that is necessary to bring about a transfer of specified property of the entity to the acting trustee.

141A(6)

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The former trustee commits an offence if:

(a) the acting trustee gives the former trustee a notice under subsection (4) or (5); and

(b) the former trustee does not, within 28 days of the notice being given, comply with the requirement in the notice.

Penalty: 50 penalty units.

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141A(7)
Subsections (3) and (6) are offences 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.

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SECTION 142 THE REGULATOR MAY FORMULATE A SCHEME FOR THE WINDING-UP OR DISSOLUTION, OR BOTH, OF A SUPERANNUATION ENTITY
Schemes

142(1)

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If a person is appointed under this Part to act as trustee of a superannuation entity, the Regulator may, by legislative instrument, formulate a scheme for the winding-up or dissolution, or both, of the entity.

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Vacancies

142(2)
Without limiting subsection (1), a scheme may make provision for and in relation to prohibiting the appointment of a person to fill a vacancy in the position of trustee.

Contravention of scheme

142(3)
A person must not intentionally or recklessly contravene the provisions of a scheme formulated under this section.

Penalty: 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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Notification

142(4)

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The Regulator must give a copy of an instrument under subsection (1) to the acting trustee.

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Beneficiaries to be told

142(5)

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Without limiting section 141, the Regulator may give a direction under that section to the acting trustee requiring the acting trustee to tell beneficiaries in the entity about an instrument under subsection (1).

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Copies to be supplied

142(6)

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A person whose interests are affected by an instrument under subsection (1) may request the Regulator to give the person a copy of the instrument. The Regulator must comply with the request.

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Publishing notice

142(7)

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The Regulator must publish notice of the making of each instrument under subsection (1) in a manner that results in the notice being accessible to the public and reasonably prominent.

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142(8)
(Repealed by No 154 of 2007)

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142(9)
(Repealed by No 69 of 2023)

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PART 18 - AMALGAMATION OF FUNDS

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SECTION 143

143 OBJECT OF PART

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The object of this Part is to empower APRA to approve, in certain circumstances, the transfer of all benefits of members and beneficiaries in a regulated superannuation fund or approved deposit fund to another regulated superannuation fund or approved deposit fund.

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SECTION 144 BENEFITS MAY BE TRANSFERRED TO A NEW FUND WITH APRA'S APPROVAL ETC.

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144(1) [Circumstances allowing transfer]

All benefits of members and beneficiaries in a regulated superannuation fund or approved deposit fund (the transferor fund ) may be transferred to another regulated superannuation fund or approved deposit fund (the transferee fund ) if:

(a) APRA approves the transfer under this Part; and

(b) the transfer takes place under an arrangement between all the trustees of the transferor fund and:

(i) if the trustee of the transferee fund is a body corporate - the RSE licensee of the transferee fund; or

(ii) if there is a group of individual trustees of the transferee fund that is an RSE licensee - all of the individual trustees of the transferee fund.

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144(2) [Other transfers not affected]

This section does not affect the transfer of any benefits in a superannuation fund or approved deposit fund under any other provision of this Act or under the regulations.

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SECTION 145 APPLICATION FOR APPROVAL OF TRANSFER

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145(1) [Who can apply]

An application to APRA for approval of the transfer of all benefits of members and beneficiaries in the transferor fund to the transferee fund may be made by all the trustees of the transferor fund and:

(a) if the trustee of the transferee fund is a body corporate - the RSE licensee of the transferee fund; or

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(b) if there is a group of individual trustees of the transferee fund that is an RSE licensee - all of the individual trustees of the transferee fund.

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145(2) [Approved form]

The application must be in the approved form.

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SECTION 146

146 APPROVAL OF TRANSFER

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APRA may approve the transfer of all benefits of members and beneficiaries in the transferor fund to the transferee fund in accordance with an application under section 145 if, and only if, APRA is satisfied that:

(a) either:

(i) reasonable attempts to bring about the transfer under another provision of this Act or under the regulations have failed; or

(ii) the transfer would take place under a scheme formulated under section 142; and

(b) the transfer is reasonable in all the circumstances, having regard to:

(i) the benefit entitlements of members and beneficiaries under the governing rules of the transferor fund; and

(ii) the likely effect on the amount of those entitlements if those members and beneficiaries were to remain members and beneficiaries of the transferor fund; and

(iii) the benefit entitlements of members and beneficiaries under the governing rules of the transferee fund; and

(iv) the value of the assets transferred from the transferor fund to the transferee fund under the arrangement referred to in paragraph 144(1)(b); and

(c) the transfer would not adversely affect the interests of the members and beneficiaries of the transferee fund; and

(d) the transferee fund has an RSE licensee.

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146(2)
(Repealed by No 25 of 2008)

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SECTION 147

147 CESSATION OF RIGHTS AGAINST TRANSFEROR FUND

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If the benefits of members and beneficiaries in a transferor fund are transferred to a transferee fund under this Part:

(a) the members and beneficiaries cease to have rights against the transferor fund; and

(b) if:

(i) immediately before the transfer occurred, another person had a contingent right against the transferor fund to a death or disability benefit; and

(ii) the contingent right was derived from a member's or beneficiary's capacity as a member or beneficiary of the transferor fund;

the other person ceases to have the contingent right against the transferor fund.

To avoid doubt, a reference in paragraph (a) to a right against the transferor fund includes a reference to a contingent right to a death or disability benefit.

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(Repealed) FORMER PART 18 - PROHIBITED CONDUCT IN RELATION TO SUPERANNUATION INTERESTS

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143 (Repealed) SECTION 143 OBJECT OF PART
(Repealed by No 123 of 2001)

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144 (Repealed) SECTION 144 REGULATED ACTS
(Repealed by No 123 of 2001)

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145 (Repealed) SECTION 145 FRAUDULENTLY INDUCING A PERSON TO ENGAGE IN A REGULATED ACT - CRIMINAL LIABILITY
(Repealed by No 123 of 2001)

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146 (Repealed) SECTION 146 MISLEADING CONDUCT IN CONNECTION WITH A REGULATED ACT - CIVIL LIABILITY
(Repealed by No 123 of 2001)

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147 (Repealed) SECTION 147 MISLEADING CONDUCT BY TRUSTEES OF ENTITIES - CIVIL LIABILITY
(Repealed by No 123 of 2001)

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148 (Repealed) SECTION 148 CIVIL LIABILITY WHERE SECTION 146 OR 147 CONTRAVENED
(Repealed by No 123 of 2001)

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149 (Repealed) SECTION 149 CONTRAVENTION OF PART DOES NOT AFFECT VALIDITY OF ISSUE OF SUPERANNUATION INTEREST ETC.
(Repealed by No 123 of 2001)

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PART 19 - PUBLIC OFFER ENTITIES: PROVISIONS RELATING TO SUPERANNUATION INTERESTS

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Division 1 - Preliminary

150 (Repealed) SECTION 150 OBJECT OF PART
(Repealed by No 123 of 2001)

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SECTION 151

151 CONTRAVENTION OF PART DOES NOT AFFECT VALIDITY OF ISSUE OF SUPERANNUATION INTEREST ETC.
A contravention of this Part does not affect the validity of the issue of a superannuation interest or of any other act.

Division 2 - Issuing, offering etc. superannuation interests in public offer entities

SECTION 152 LIMITATION ON ISSUING, OFFERING ETC. SUPERANNUATION INTERESTS IN PUBLIC OFFER ENTITIES

152(1) [Application]

This section applies to the following conduct:

(a) issuing superannuation interests in a public offer entity;

(b) offering to issue superannuation interests in a public offer entity;

(c) inviting the making of applications for the issue of superannuation interests in a public offer entity.

152(2) [Trustee not to engage in conduct]

View history reference

The trustee of a public offer entity must not engage in conduct to which this section applies.

Penalty: Imprisonment for 5 years.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

152(2A) [S 152(2) not applied]

View history reference

Subsection (2) does not apply if:

(a) the trustee is a constitutional corporation and is an RSE licensee; and

View history reference

(b) the entity is constituted by a deed as a trust.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

View history note

152(3) [Offence by other persons]

View history reference

A person, other than the trustee of a public offer entity, must not engage in conduct to which this section applies.

Penalty: Imprisonment for 5 years.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

152(4) [Trustee may authorise other persons]

This section does not prevent the trustee of a public offer entity from engaging or authorising persons to act on behalf of the trustee.

153 (Repealed) SECTION 153 TRUSTEE MUST NOT ISSUE INTERESTS, OR PERMIT PERSONS TO BECOME STANDARD EMPLOYER-SPONSORS, EXCEPT PURSUANT TO APPLICATIONS
(Repealed by No 123 of 2001)

View history note

(Repealed) SECTION 153A INTERESTS MAY BE ISSUED WITHOUT AN APPLICATION IN CERTAIN CIRCUMSTANCES
(Repealed by Revocation of Modification Declarations (F2005L02475))

[ CCH Note: MODIFICATION DECLARATION No 15 (No GN 31 of 7 August 1996) provides that Pt 19 is to have effect, in relation to public offer entities, and their trustees, as if it were modified by inserting after section 153 the following:

Interests may be issued without an application in certain circumstances
153A
A trustee of a public offer entity who issues a superannuation interest in the entity to a person without first receiving an application, or an eligible application, in accordance with the requirements of subsection 153(1) is taken not to breach that subsection if:

(a) the entity is a standard employer-sponsored fund; and

(b) the person holds the interest as a standard employer-sponsored member of the entity; and

(c) after issuing the interest, the trustee makes reasonable efforts:

(i) to obtain from the person's standard employer-sponsor whichever is applicable of an application mentioned in subparagraph 153(1)(b)(i) or an eligible application mentioned in subparagraph 153(1)(b)(ii); or

(ii) to obtain from the person an eligible application mentioned in paragraph 153(1)(a); and

(d) where the trustee has not obtained such an application or eligible application within 90 days after issuing the interest, the trustee does not accept any more contributions from the standard employer-sponsor in respect of the person (until such time as the trustee receives such an application or eligible application).

This declaration is taken to have commenced on 1 July 1994. The declaration was revoked effective from 6 September 2005.]

SECTION 154 COMMISSION AND BROKERAGE

154(1)
The trustee of a public offer entity must comply with the requirements of the regulations in relation to the payment of commission or brokerage in respect of:

(a) an application for the issue of a superannuation interest in the entity; or

(b) an application to become a standard employer-sponsor of the entity.

154(2)

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The trustee commits an offence if the trustee contravenes subsection (1).

Penalty: 100 penalty units.

View history note

154(2A)

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The trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

View history note

154(3)
Requirements specified in regulations for the purposes of subsection (1) must relate to all or any of the following:

(a) the classes of persons to whom payments of commission or brokerage may be made;

(b) the situations in which payments of commission or brokerage may be made;

(c) the disclosure of information about payments of commission or brokerage;

(d) the keeping of records about payments of commission or brokerage.

SECTION 155 FAIR DEALING ONISSUE OR REDEMPTION OF A SUPERANNUATION INTEREST

155(1) [Application of section]

This section applies if:

(a) the trustee of a public offer entity is considering:

(i) issuing a superannuation interest in the entity to a person; or

(ii) redeeming a superannuation interest in the entity held by a person; and

(b) either:

(i) the trustee believes on reasonable grounds that the price at which, under the governing rules of the entity, the interest would be issued or redeemed would not, in the circumstances, be fair and reasonable as between the person and the beneficiaries of the entity; or

(ii) the trustee cannot, for whatever reason, work out the price at which, under the governing rules of the entity, the interest should be issued or redeemed.

155(2) [Fair and reasonable price for interest]

The trustee must not issue or redeem the interest while subsection (1) applies except at a price that is fair and reasonable as between the person and the beneficiaries of the entity.

155(3) [Trustee acting in accordance with rules]

If, while this section applies, the trustee issues or redeems the interest at such a price, the trustee is taken to have acted in accordance with the governing rules of the entity.

155(4) [Civil liability]

A contravention of subsection (2) is not an offence, but it may give rise to civil liability under section 156.

SECTION 156 CIVIL LIABILITY WHERE SUBSECTION 155(2) CONTRAVENED

156(1) [Action for loss or damage]

If:

(a) the trustee of a public offer entity contravenes subsection 155(2); 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.

156(2) [Period to bring action]

The action must be begun within 6 years after the day on which the cause of action arose.

(Repealed) Division 3 - Provisions relating to information given to prospective beneficiaries etc. of public offer entities

View history note

(Repealed) Division 4 - Stop orders

View history note

(Repealed) Division 5 - Application money to be held on trust

View history note

(Repealed) Division 6 - Cooling-off - redemption of interests

View history note

PART 20 - ADMINISTRATIVE DIRECTIONS AND PENALTIES FOR CONTRAVENTIONS RELATING TO SELF MANAGED SUPERANNUATION FUNDS

View history reference

View history note

Division 1 - Object and scope of this Part

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View history note

SECTION 157

157 OBJECT OF THIS PART

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The object of this Part is to provide administrative consequences for contraventions of this Act or the regulations that relate to self managed superannuation funds. This Part:

(a) allows the Regulator to give rectification directions and education directions; and

(b) imposes administrative penalties for certain contraventions.

View history note

SECTION 158

158 SCOPE OF THIS PART

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This Part applies in relation to self managed superannuation funds that are regulated superannuation funds.

View history note

Division 2 - Directions

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View history note

SECTION 159 RECTIFICATION DIRECTION

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159(1)
This section applies if the Regulator reasonably believes that a person who is:

(a) a trustee of a self managed superannuation fund; or

(b) a director of a body corporate that is a trustee of a self managed superannuation fund;

has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund.

159(2)
The Regulator may give the person a written direction (a rectification direction ) requiring the person:

(a) to take specified action to rectify the contravention; and

(b) to provide the Regulator with evidence of the person's compliance with the direction.

159(3)
In deciding whether to give a person a rectification direction, the Regulator is to have regard to:

(a) any financial detriment that might reasonably be expected to be suffered by the fund as a result of the person's compliance with the direction; and

(b) the nature and seriousness of the person's contravention; and

(c) any other relevant circumstances.

159(4)
A rectification direction must specify the period within which the person must comply with the direction (which must be a period that is reasonable in the circumstances).

Note:

The period may be affected by the operation of subsection 164(7).

159(5)
The Regulator must not give a rectification direction in relation to a contravention if:

(a) the Regulator has, under section 262A, accepted an undertaking given by a person; and

(b) the contravention is covered by the undertaking; and

(c) the undertaking has neither been withdrawn nor varied in a way that means the contravention is no longer covered by it.

159(6)
A person to whom a rectification direction is given must comply with the direction before the end of the period specified in the direction for the purposes of subsection (4).

159(7)
A person commits an offence of strict liability if the person contravenes subsection (6).

Penalty: 10 penalty units.

View history note

SECTION 160 EDUCATION DIRECTION

View history reference

160(1)
This section applies to the following persons:

(a) a trustee of a self managed superannuation fund, if the Regulator reasonably believes that the trustee has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund;

(b) a director of a body corporate that is a trustee of a self managed superannuation fund, if the Regulator reasonably believes that:

(i) the director has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund; or

(ii) the trustee has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund.

160(2)
The Regulator may give the person a written direction (an education direction ) requiring the person:

(a) to undertake a specified approved course of education (see section 161); and

(b) to provide the Regulator with evidence of completion of the course.

Note:

See also section 104A (recognition of obligations and responsibilities).

160(3)
An education direction must specify the period within which the person must comply with the direction (which must be a period that is reasonable in the circumstances).

Note:

The period may be affected by the operation of subsection 164(7).

160(4)
A person to whom an education direction is given must comply with the direction before the end of the specified period.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (4).

160(5)
A person commits an offence of strict liability if the person contravenes subsection (4).

Penalty: 10 penalty units.

View history note

SECTION 161 APPROVAL OF COURSES OF EDUCATION

View history reference

161(1)
The Regulator may, in writing, approve one or more courses of education for the purposes of giving education directions.

161(2)
A course approved under subsection (1):

(a) may be provided by the Regulator or by another entity; and

(b) must be a course for which no fees are charged in respect of persons who undertake the course in compliance with education directions.

161(3)
An approval under subsection (1) is not a legislative instrument.

View history note

SECTION 162

162 COSTS OF COURSE OF EDUCATION

View history reference

If a person undertakes a course of education in compliance with an education direction, the person must ensure that none of the costs associated with undertaking the course are paid or reimbursed from the assets of the fund in relation to which the education direction was given.

View history note

SECTION 163

163 VARIATION OR REVOCATION ON REGULATOR'S OWN INITIATIVE

View history reference

The Regulator may, at any time, vary or revoke a rectification direction or an education direction by written notice given to the person to whom the direction was given.

View history note

SECTION 164 VARIATION ON REQUEST

View history reference

164(1)
A person to whom a rectification direction or an education direction is given may request the Regulator to vary the direction.

164(2)
The request must be made by written notice given to the Regulator before the end of the period specified in the direction for the purposes of subsection 159(4) or 160(3).

164(3)
The request must set out the reasons for making the request.

164(4)
The Regulator must decide:

(a) to vary the direction in accordance with the request; or

(b) to vary the direction otherwise than in accordance with the request; or

(c) to refuse to vary the direction.

164(5)
If the Regulator does not make a decision on the request before the end of 28 days after the day the request was made, the Regulator is taken, at the end of that period, to have decided to refuse the request.

164(6)
If the Regulator makes a decision on the request before the end of the period referred to in subsection (5), the Regulator must:

(a) notify the person of the Regulator's decision; and

(b) if the decision is to vary the direction (whether or not in accordance with the request) - give the person a copy of the varied direction; and

(c) if the decision is to refuse to vary the direction, or to vary the direction otherwise than in accordance with the request - give the person written reasons for the decision.

164(7)
If a person makes a request under this section, then, for the purposes of subsection 159(6) or 160(4), the period specified in the direction for the purposes of subsection 159(4) or 160(3) is taken to be extended by 1 day for each day in the period:

(a) beginning at the start of the day the request was made; and

(b) ending at the end of the day that the Regulator notifies the person that a decision has been made on the request.

View history note

SECTION 165

165 TAXATION OBJECTION

View history reference

A person who is dissatisfied with:

(a) a decision of the Regulator to give a rectification direction or an education direction, or to vary one otherwise than in accordance with a request under section 164; or

(b) a decision of the Regulator under section 164 to refuse to vary a rectification direction or an education direction;

may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.

View history note

Division 3 - Administrative penalties

View history reference

View history note

SECTION 166 ADMINISTRATIVE PENALTIES IN RELATION TO SELF MANAGED SUPERANNUATION FUNDS

View history reference

166(1)
If a person referred to in subsection (2) contravenes a provision of this Act specified in the table, the person is liable to an administrative penalty. The amount of the penalty is the amount specified in the table for the provision.

Administrative penalties in relation to self managed superannuation funds
Item	Provision of this Act	Administrative penalty
1	Subsection 34(1)	20 penalty units
2	Section 35B	10 penalty units
3	Subsection 65(1)	60 penalty units
4	Subsection 67(1)	60 penalty units
5	Subsection 84(1)	60 penalty units
6	Subsection 103(1)	10 penalty units
7	Subsection 103(2)	10 penalty units
8	Subsection 103(2A)	10 penalty units
9	Subsection 104(1)	10 penalty units
10	Subsection 104A(2)	10 penalty units
11	Subsection 105(1)	10 penalty units
12	Subsection 106(1)	60 penalty units
13	Subsection 106A(1)	20 penalty units
14	Subsection 124(1)	5 penalty units
15	Subsection 160(4)	5 penalty units
16	Subsection 254(1)	5 penalty units
17	Subsection 347A(5)	5 penalty units

Note:

See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

166(2)
For the purposes of subsection (1), the persons are:

(a) a trustee of a self managed superannuation fund; or

(b) a director of a body corporate that is a trustee of a self managed superannuation fund.

Note:

Collection and recovery of administrative penalties imposed by this section is dealt with in Part 4-15 of Schedule 1 to the Taxation Administration Act 1953.

166(3)
If a trustee of a self managed superannuation fund on whom a penalty is imposed by this section is an individual, a reference in Part 4-15 or Division 298 in Schedule 1 to the Taxation Administration Act 1953 to an entity is taken to be a reference to that individual in his or her personal capacity.

View history note

SECTION 167

167 ADMINISTRATIVE PENALTY AND CIVIL PENALTY

View history reference

If:

(a) a person is liable to pay an amount by way of administrative penalty imposed by section 166 because of an act or omission of the person; and

(b) proceedings against the person are commenced for a contravention of a civil penalty provision constituted by the act or omission;

then (whether or not the proceedings are withdrawn):

(c) the person is not liable to pay the amount; and

(d) any amount paid, or applied by the Regulator, in total or partial discharge of that liability is to be refunded to the person, or applied by the Regulator in total or partial discharge of another tax-related liability of the person.

Note:

Section 8ZE of the Taxation Administration Act 1953 deals with the situation of a person against whom a criminal prosecution is instituted.

View history note

SECTION 168

168 PENALTY MUST NOT BE REIMBURSED FROM FUND

View history reference

An administrative penalty imposed by section 166 must not be paid or reimbursed from the assets of the fund in relation to which the administrative penalty was imposed.

View history note

SECTION 169 JOINT AND SEVERAL LIABILITY OF DIRECTORS OF CORPORATE TRUSTEE LIABLE TO ADMINISTRATIVE PENALTY UNDER SECTION 166

View history reference

169(1)

View history reference

This section applies if a trustee of a self managed superannuation fund:

(a) is liable to an administrative penalty imposed by section 166; and

(b) is a body corporate.

169(2)
The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the penalty.

View history note

(Repealed) Division 4 - Offence of contravening the insider trading rules

View history note

(Repealed) Division 5 - Civil liability for contravention of the insider trading rules - recovery of loss or damage

View history note

(Repealed) Division 6 - Civil liability for contravention of the insider trading rules - recovery of price differential

View history note

(Repealed) Division 7 - Special powers of Court to make orders in cases of contravention of the insider trading rules

View history note

PART 21 - CIVIL AND CRIMINAL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS

Division 1 - Preliminary

SECTION 192

192 OBJECT OF PART
The object of this Part is to specify the consequences of contravening a civil penalty provision.

SECTION 193

193 CIVIL PENALTY PROVISIONS

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Each of the following provisions of this Act is a civil penalty provision:

(aa)

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subsection 54B(1);

(ab)

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subsection 54B(2);

(a) subsection 62(1);

(b) subsection 65(1);

(c) subsection 67(1);

(caa)

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subsection 68A(1);

(cab)

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subsection 68A(3);

(ca)

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subsection 68B(1);

(d) subsection 84(1);

(e) subsection 85(1);

(f) subsection 95(1);

(g) subsection 97(1);

(h) section 98;

(i) subsection 106(1);

(j) subsection 109(1);

(ja) subsection 109(1A);

(k) subsection 117(3);

(l)

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subsection 242M(1).

(m) (Repealed by No 135 of 2020)

(n) (Repealed by No 135 of 2020)

View history note

SECTION 194

194 PERSON INVOLVED IN CONTRAVENING A PROVISION TAKEN TO HAVE CONTRAVENED THE PROVISION
For the purposes of this Part, a person who is involved in a contravention of a particular provision of this Act that is not an offence is taken to have contravened that provision.

View history note

SECTION 195

195 WHEN A COURT IS TAKEN TO FIND A PERSON GUILTY OF AN OFFENCE
For the purposes of this Part, an Australian court is taken to find a person guilty of an offence if, and only if:

(a) the court convicts the person of the offence; or

(b) the person is charged before the court with the offence and is found by the court to have committed the offence, but the court does not proceed to convict the person of the offence.

Division 2 - Civil penalty orders

SECTION 196 COURT MAY MAKE CIVIL PENALTY ORDERS

196(1)
This section applies if the Court is satisfied that a person has contravened a civil penalty provision, whether or not the contravention also constitutes an offence because of section 202.

Note:

Section 220 provides that a certificate by a court that the court has declared a person to have contravened a civil penalty provision is conclusive evidence of the contravention.

196(2)
The Court is to declare that the person has, by a specified act or omission, contravened that provision in relation to a specified superannuation entity, but need not so declare if such a declaration is already in force under Division 4.

196(3)

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The Court may also make against the person an order that the person pay to the Commonwealth a monetary penalty of an amount specified in the order that does not exceed 2,400 penalty units.

View history note

196(4)
The Court is not to make an order under subsection (3) unless it is satisfied that the contravention is a serious one.

196(5)
The Court is not to make an order under subsection (3) if it is satisfied that an Australian court has ordered the person to pay damages in the nature of punitive damages because of the act or omission constituting the contravention.

SECTION 197 WHO MAY APPLY FOR CIVIL PENALTY ORDER

197(1) [Application by the Regulator or delegate]

View history reference

An application for a civil penalty order may only be made by the Regulator or a person to whom the Regulator has delegated the power to make applications for civil penalty orders.

View history note

197(2) [The Regulator's delegation]

A delegation for the purposes of subsection (1) may relate to applications in relation to specified contraventions, or all contraventions, of civil penalty provisions.

197(3) [Operation of DPP Act]

This section does not affect the operation of the Director of Public Prosecutions Act 1983.

SECTION 198

198 TIME LIMIT FOR APPLICATION
An application for a civil penalty order may be made within 6 years after the contravention.

SECTION 199 APPLICATION FOR CIVIL PENALTY ORDER IS A CIVIL PROCEEDING

199(1) [Rules of evidence and procedure]

In hearing and determining an application for a civil penalty order, the Court is to apply the rules of evidence and procedure that it applies in hearing and determining civil matters.

199(2) [Rules of Court]

Subsection (1) has effect subject to the rules of the Court.

SECTION 200

200 ENFORCEMENT OF ORDER TO PAY MONETARY PENALTY

View history reference

If the Court makes under subsection 196(3) an order that a person pay a monetary penalty:

(a) the penalty is payable to the Regulator on the Commonwealth's behalf; and

(b) the Regulator or the Commonwealth may enforce the order as if it were a judgment of the Court.

View history note

SECTION 201 THE REGULATOR MAY REQUIRE A PERSON TO GIVE ASSISTANCE IN CONNECTION WITH APPLICATION FOR CIVIL PENALTY ORDER

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201(1)
This section applies if it appears to the Regulator that a person may have contravened a civil penalty provision.

View history note

201(2)
If the Regulator, on reasonable grounds, suspects or believes that a person can give information relevant to an application for a civil penalty order in relation to the contravention (whether or not such an application has been made), the Regulator may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.

View history note

201(3)
Subsection (2) does not apply in relation to:

(a) the person referred to in subsection (1); or

(b) a person who is or has been that person's lawyer.

201(4)
If a person fails to give assistance as required under subsection (2):

(a) the person commits an offence punishable on conviction by a fine not exceeding 5 penalty units; and

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(b) the Court may, on the application of the Regulator, order the person to comply with the requirement as specified in the order.

View history note

201(4A)

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Paragraph (4)(a) 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.

View history note

201(5)
Paragraph (4)(b) does not affect any penalty for an offence referred to in paragraph (4)(a).

Division 3 - Criminal proceedings

SECTION 201A

201A CRIMINAL JURISDICTION OF THE FEDERAL COURT OF AUSTRALIA IN RELATION TO CERTAIN INDICTABLE OFFENCES

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The Federal Court of Australia has jurisdiction to hear and determine prosecutions for indictable offences against provisions of this Act that are administered by ASIC.

View history note

SECTION 202 WHEN CONTRAVENTION OF CIVIL PENALTY PROVISIONS IS AN OFFENCE

202(1)

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If a person contravenes a civil penalty provision, either:

(a) dishonestly, and intending to gain, whether directly or indirectly, an advantage for that, or any other person; or

(b) intending to deceive or defraud someone;

the person commits an offence punishable on conviction by imprisonment for not longer than 5 years.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

202(2)

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A person who contravenes a civil penalty provision does not commit an offence except as provided by subsection (1).

View history note

202(3)
The Federal Court of Australia does not have jurisdiction with respect to criminal proceedings for an offence constituted by a contravention of a civil penalty provision.

SECTION 203

203 APPLICATION FOR CIVIL PENALTY ORDER PRECLUDES LATER CRIMINAL PROCEEDINGS
Criminal proceedings for an offence constituted by a contravention of a civil penalty provision cannot be begun if a person has already applied for a civil penalty order in relation to the same contravention, even if the application has been finally determined or otherwise disposed of.

Division 4 - Effect of criminal proceedings on application for civil penalty order

SECTION 204

204 WHEN DIVISION APPLIES
This Division applies if criminal proceedings are begun against a person for an offence constituted by a contravention of a civil penalty provision.

SECTION 205 EFFECT DURING CRIMINAL PROCEEDINGS

205(1) [Application for civil penalty order]

An application may be made for a civil penalty order against the person in relation to the same contravention.

205(2) [Stay of application]

However, such an application is stayed, because of this subsection, until:

(a) the criminal proceedings; and

(b) all appeals and applications for review (including appeals and applications for review under this Division) arising out of the criminal proceedings;

have been finally determined or otherwise disposed of.

SECTION 206

206 FINAL OUTCOME PRECLUDING APPLICATIONS FOR CIVIL PENALTY ORDER
When the criminal proceedings, appeals and applications for review are finally determined or otherwise disposed of:

(a) an application for a civil penalty order in relation to the same contravention cannot be made (except under this Division); and

(b) such an application that was stayed because of subsection 205(2) is, because of this section, dismissed;

if the result of the criminal proceedings, appeals and applications for review is:

(c) a court finding the person guilty of the offence; or

Note:

Section 195 defines when a court is taken to find a person guilty of an offence.

(d) the person being acquitted of the offence, unless there is in force a declaration that the person committed the contravention; or

Note:

This kind of declaration is made under section 209, 210 or 211.

(e) a declaration by a court that the evidence in a committal proceeding for the offence could not satisfy the Court, on an application for a civil penalty order, that the person committed the contravention; or

Note:

This kind of declaration is made under section 208.

(f) a declaration by a court that the person committed the contravention; or

Note:

This kind of declaration is made under section 209 or 211.

(g) an order by a court prohibiting an application for a civil penalty order in relation to the contravention from being made or from proceeding; or

Note:

This kind of declaration is made under section 212.

(h) the Court, on an appeal or review, affirming, varying or substituting a declaration that the person committed the contravention.

Note:

Section 213 applies in this case.

SECTION 207

207 FINAL OUTCOME NOT PRECLUDING APPLICATION FOR CIVIL PENALTY ORDER
If the result of the criminal proceedings, appeals and applications for review being finally determined or otherwise disposed of is:

(a) a declaration by a court (other than the Court) that the person committed the contravention; or

Note:

This kind of declaration is made under section 209, 210 or 211.

(b) none of the results referred to in section 206;

then:

(c) if an application for a civil penalty order in relation to the contravention was stayed because of subsection 205(2) - the application may proceed; or

(d) otherwise - such an application may be made and may proceed;

as if the criminal proceedings had never begun.

SECTION 208 AFTER UNSUCCESSFUL COMMITTAL PROCEEDING, COURT MAY PRECLUDE APPLICATION FOR CIVIL PENALTY ORDER

208(1) [Declaration by court]

If:

(a) a proceeding in a court for the commitment of the person for trial for the offence is finally determined or otherwise disposed of without the person being committed for trial for the offence; and

(b) that court is satisfied that the evidence in the proceeding could not satisfy the Court, on an application for a civil penalty order in relation to the contravention, that the person committed the contravention;

the court may declare that it is so satisfied.

208(2) [Appeal or review]

A declaration under subsection (1) is subject to appeal or review in the same way as any other order or decision made in the proceeding.

SECTION 209 APPLICATION FOR CIVIL PENALTY ORDER BASED ON ALTERNATIVE VERDICT AT JURY TRIAL

209(1) [Application of section]

This section applies if the person is tried on indictment for the offence and the jury is satisfied beyond reasonable doubt that the person committed the contravention, but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 202(1).

209(2) [Finding by jury]

The jury may find the person not guilty of the offence, but guilty of the contravention.

209(3) [Declaration by court]

If the jury does so, the court is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified superannuation entity.

209(4) [Order to apply for civil penalty order]

If the court is the Court, it may then proceed to make an order under subsection 196(3) on the application of the prosecutor or someone else who has power under section 197 to apply for a civil penalty order in relation to the contravention.

209(5) [Effect of court order]

Subsection (4) has effect despite section 198.

209(6) [Appeal or review of declaration]

A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.

SECTION 210 APPLICATION FOR CIVIL PENALTY ORDER BASED ON ALTERNATIVE FINDING BY COURT OF SUMMARY JURISDICTION

210(1) [Application of section]

This section applies if, on the hearing of a proceeding for the summary conviction of the person for the offence, the court is satisfied beyond reasonable doubt that the person committed the contravention but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 202(1).

210(2) [Finding by court]

The court may find the person not guilty of the offence, but guilty of the contravention.

210(3) [Declaration by court]

If the court does so, it is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified superannuation entity.

210(4) [Appeal or review of declaration]

A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.

SECTION 211 APPLICATION FOR CIVIL PENALTY ORDER BASED ON ALTERNATIVE FINDING BY APPEAL COURT

211(1) [Application of section]

This section applies if:

(a) a court finds the person guilty of the offence; and

(b) on appeal or review, a court makes an order determining the criminal proceedings for the offence in a way that does not involve convicting the person of that or any other offence; and

(c) the court is satisfied beyond reasonable doubt that the person committed the contravention.

211(2) [Declaration by court]

The court may declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified superannuation entity.

211(3) [Order to pay monetary penalty]

211(4) [Effect of court order]

Subsection (3) has effect despite section 198.

211(5) [Appeal or review of declaration]

A declaration under subsection (2) is subject to appeal or review in the same way as any other order or decision that was made on the appeal or review or might have been made.

SECTION 212

212 AFTER SETTING ASIDE DECLARATION, COURT MAY PRECLUDE APPLICATION FOR CIVIL PENALTY ORDER
If a court sets aside a declaration made under section 209, 210 or 211, the court may, by order, prohibit an application for a civil penalty order in relation to the contravention from being made or from proceeding.

SECTION 213 ON UNSUCCESSFUL APPEAL AGAINST DECLARATION, COURT MAY MAKE CIVIL PENALTY ORDERS

213(1) [Application of section]

This section applies if, on an appeal from, or review of, a declaration made under section 209, 210 or 211 by a court other than the Court, the Court determines the appeal or review by:

(a) affirming or varying the declaration; or

(b) substituting another declaration for the first-mentioned declaration.

213(2) [Order to pay monetary penalty]

The Court may then proceed to make orders under subsection 196(3) on the application of the prosecutor or someone else who has power under section 197 to apply for a civil penalty order in relation to the contravention.

213(3) [Effect of court order]

Subsection (2) has effect despite section 198.

SECTION 214

214 APPEALS UNDER THIS DIVISION
For the purposes of an appeal or review under subsection 208(2), 209(6), 210(4) or 211(5), a law about appeals or reviews has effect with such modifications as the circumstances require.

Division 5 - Compensation for loss suffered by superannuation entity

SECTION 215 ON APPLICATION FOR CIVIL PENALTY ORDER, COURT MAY ORDER COMPENSATION

215(1) [Order to pay compensation]

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If, on an application for a civil penalty order against a person in relation to a contravention, the Court is satisfied that:

(a) the person committed the contravention; and

(b) the superannuation entity in relation to which the contravention was committed has suffered loss or damage as a result of the act or omission constituting the contravention;

the Court may (whether or not it makes an order under subsection 196(3)) order the person to pay to a trustee of the entity or, if the person is a trustee of the entity, to pay to the entity compensation of such amount as the order specifies.

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215(2) [Intervention by superannuation entity]

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A trustee of a superannuation entity may intervene in an application for a civil penalty order against a person in relation to a contravention, unless the application was made under Division 4.

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215(3) [When entity entitled to be heard]

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A trustee of a superannuation entity that so intervenes is entitled to be heard:

(a) only if the Court is satisfied that the person committed the contravention in relation to that entity; and

(b) only on the question whether the Court should order the person to pay compensation to the trustee because of the contravention.

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SECTION 216 CRIMINAL COURT MAY ORDER COMPENSATION

216(1) [Court finds person guilty of offence]

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If:

(a) a court finds a person guilty of an offence constituted by a contravention of a civil penalty provision in relation to a superannuation entity; and

(b) the court is satisfied that the superannuation entity has suffered loss or damage as a result of the act or omission constituting the contravention;

the court may (whether or not it imposes a penalty) order the person to pay to a trustee of the entity or, if the person is a trustee of the entity, to pay to the entity compensation of such amount as the order specifies.

Note:

Section 195 defines when a court is taken to find a person guilty of an offence.

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216(2) [Court declares contravention]

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If:

(a) a court declares under Division 4 that a person has, by an act or omission, contravened a civil penalty provision in relation to a superannuation entity; and

(b) the court is satisfied that the superannuation entity has suffered loss or damage as a result of that act or omission;

the court may (whether or not it makes an order under subsection 196(3)) order the person to pay to a trustee of the entity or, if the person is a trustee of the entity, to pay to the entity compensation of such amount as the order specifies.

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SECTION 217

217 ENFORCEMENT OF ORDER UNDER SECTION 215 OR 216
An order to pay compensation that a court makes under section 215 or 216 may be enforced as if it were a judgment of the court.

SECTION 218 RECOVERY OF PROFITS, AND COMPENSATION FOR LOSS, RESULTING FROM CONTRAVENTION

218(1) [Proceedings to recover debt]

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If a civil penalty provision in relation to a superannuation entity is contravened by a person other than a trustee of the entity, a trustee of the entity may, by proceedings in a court of competent jurisdiction, recover from the person, as a debt due to the trustee:

(a) if that or another person has made a profit because of the act or omission constituting the contravention - an amount equal to the amount of that profit; and

(b) if the entity has suffered loss or damage as a result of that act or omission - an amount equal to the amount of that loss or damage;

whether or not:

(c) the first-mentioned person has been convicted of an offence in relation to the contravention; or

(d) a civil penalty order has been made against the first-mentioned person in relation to the contravention.

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218(2) [Period to commence proceedings]

Proceedings under this section may only be begun within 6 years after the contravention.

SECTION 219

219 EFFECT OF SECTIONS 215, 216 AND 218
Sections 215, 216 and 218:

(a) have effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person's office or employment in relation to a superannuation entity; and

(b) do not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability.

SECTION 220

220 CERTIFICATES EVIDENCING CONTRAVENTION
For the purposes of this Part, a certificate that:

(a) purports to be signed by the Registrar or other proper officer of an Australian court; and

(b) states:

(i) that the court has declared that a specified person has, by a specified act or omission, contravened a specified civil penalty provision in relation to a specified superannuation entity; or

(ii) that a specified person was convicted by that court of an offence constituted by a specified contravention of a civil penalty provision in relation to a specified superannuation entity; or

(iii) that a specified person charged before that court with such an offence was found in that court to have committed the offence but that the court did not proceed to convict the person of the offence;

is, unless it is proved that the declaration, conviction or finding was set aside, quashed or reversed, conclusive evidence:

(c) that the declaration was made, that the person was convicted of the offence, or that the person was so found, as the case may be; and

(d) that the person committed the contravention.

Division 6 - Miscellaneous

SECTION 220A BURDEN OF PROOF - CIVIL PROCEEDINGS RELATING TO DUTY TO ACT IN BEST FINANCIAL INTERESTS OF BENEFICIARIES

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220A(1)
In civil proceedings for a contravention of subsection 54B(1) in relation to a covenant set out in paragraph 52(2)(c), it is presumed that a trustee did not perform the trustee's duties and exercise the trustee's powers in the best financial interests of beneficiaries, unless the trustee adduces evidence to the contrary.

220A(2)
If, in such proceedings:

(a) a trustee wishes to adduce evidence to the contrary - the trustee bears an evidential burden in relation to the matter; and

(b) in the case that evidence to the contrary is so adduced - the Regulator must prove, on the balance of probabilities, that the trustee did not perform the trustee's duties and exercise the trustee's powers in the best financial interests of beneficiaries.

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SECTION 221 RELIEF FROM LIABILITY FOR CONTRAVENTION OF CIVIL PENALTY PROVISION

221(1) ["eligible proceedings"]

In this section:

eligible proceedings
means proceedings for a contravention of a civil penalty provision (including proceedings under section 218) but does not include proceedings for an offence (except so far as the proceedings relate to the question whether the court should make an order under section 216).

221(2) [Conditions for relief from liability]

If, in eligible proceedings against a person, it appears to the court that the person has, or may have, contravened a civil penalty provision but that:

(a) the person has acted honestly; and

(b) having regard to all the circumstances of the case, the person ought fairly to be excused for the contravention;

the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.

221(3) [Application for relief]

If a person thinks that eligible proceedings will or may be begun against him or her, he or she may apply to the Court for relief.

221(4) [Court may grant relief]

On the application under subsection (3), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court.

221(5) [Interpretation]

For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury:

(a) a reference in that subsection to the court is a reference to the judge; and

(b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.

221(6) [Additional relief]

Section 323 provides for additional relief from liability.

SECTION 222

222 PART DOES NOT LIMIT POWER TO AWARD PUNITIVE DAMAGES
Nothing in this Part limits a court's power to order someone to pay damages in the nature of punitive damages because of an act or omission constituting a contravention of a civil penalty provision.

PART 22 - INFRINGEMENT NOTICES

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Division 1 - Overview

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SECTION 223

223 SIMPLIFIED OUTLINE

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The following is a simplified outline of this Part:

This Part deals with the use of infringement notices if an infringement officer reasonably believes that a provision has been contravened.

A person can be given an infringement notice in relation to a contravention of a provision that is subject to an infringement notice under this Part. The provision may be an offence provision or a civil penalty provision, or both.

A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for a contravention of a provision subject to an infringement notice under this Part. If the person does not choose to pay the amount, proceedings can be brought against the person in relation to the contravention.

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SECTION 223A PROVISIONS SUBJECT TO AN INFRINGEMENT NOTICE

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223A(1)
An offence against one of the following provisions is subject to an infringement notice under this Part:

(a) subsection 18(7B);

(aa) subsection 29JCB(1);

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(b) subsection 29W(1);

(c) subsection 29WA(3);

(d) subsection 29WB(3);

(e) subsection 35A(7);

(f) subsection 107(4);

(g) subsection 108(4);

(h) subsection 140(3);

(i) subsection 242P(1);

(j) subsection 260(3);

(k) subsection 262(2).

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223A(2)
An offence against one of the following provisions is subject to an infringement notice under this Part, unless the superannuation entity to which the offence relates is a self managed superannuation fund:

(a) subsection 11C(2), (3) or (4);

(b) subsection 63(7) or (10);

(c) subsection 64(3A);

(d) subsection 71EA(5);

(e) subsection 103(3);

(f) subsection 104(2);

(g)subsection 105(2);

(h) subsection 122(2);

(i) subsection 124(2);

(j) subsection 141A(3) or (6);

(k) subsection 252A(3).

223A(3)
The regulations may provide that:

(a) an offence against a provision of this Act not already specified in this section, or a civil penalty provision in this Act, is subject to an infringement notice under this Part; and

(b) an offence against the regulations, or a civil penalty provision in the regulations, is subject to an infringement notice under this Part.

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SECTION 223B INFRINGEMENT OFFICER

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223B(1)
A person is an infringement officer for the purposes of exercising powers under this Part in relation to a contravention of a provision subject to an infringement notice under this Part, if the person is one of a class of persons determined by the Chair of APRA under section 223C to be infringement officers in relation to a contravention of the provision.

223B(2)
A person who is an infringement officer for the purposes of exercising powers mentioned in subsection (1) is also an infringement officer for the purposes of:

(a) exercising other powers under this Part; or

(b) performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

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SECTION 223C CHAIR OF APRA MAY DETERMINE INFRINGEMENT OFFICERS

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223C(1)
The Chair of APRA may by legislative instrument determine that APRA staff members of a class specified in the determination are to be infringement officers for the purposes of exercising powers under this Part in relation to a contravention of a provision that is subject to an infringement notice under this Part.

223C(2)
The Chair of APRA must not specify a class of APRA staff members in the determination unless the Chair is satisfied that persons of that class have suitable training or experience to properly exercise the powers of an infringement officer.

223C(3)
An infringement officer must, in exercising powers as such, comply with any directions of the Chair of APRA in relation to the relevant provision.

223C(4)
If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

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SECTION 223D RELEVANT CHIEF EXECUTIVE

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223D(1)
The Chair of APRA is the relevant chief executive for the purposes of exercising powers under this Part in relation to the contravention of a provision subject to an infringement notice under this Part.

223D(2)
The Chair of APRA is also the relevant chief executive for the purposes of:

(a) exercising other powers under this Part; or

(b) performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

223D(3)
The Chair of APRA may, in writing, delegate the powers and functions of the relevant chief executive under this Part to:

(a) an APRA member (within the meaning of the Australian Prudential Regulation Authority Act 1998); or

(b) an APRA staff member (within the meaning of the Australian Prudential Regulation Authority Act 1998) who is an executive general manager or equivalent.

223D(4)
A person exercising powers or functions under a delegation under subsection (3) must comply with any directions of the relevant chief executive.

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Division 2 - Infringement notices

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SECTION 224 WHEN AN INFRINGEMENT NOTICE MAY BE GIVEN

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224(1)
If an infringement officer has reasonable grounds to believe that a person has contravened a provision subject to an infringement notice under this Part, the infringement officer may give to the person an infringement notice for the alleged contravention.

224(2)
The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

224(3)
A single infringement notice must relate only to a single contravention of a single provision unless subsection (4) applies.

224(4)
An infringement officer may give a person a single infringement notice relating to multiple contraventions of a single offence provision if:

(a) the provision requires the person to do a thing within a particular period or before a particular time; and

(b) the person fails or refuses to do that thing within that period or before that time; and

(c) the failure or refusal occurs on more than one day; and

(d) each contravention is constituted by the failure or refusal on one of those days.

Note:

For continuing offences, see subsection 4K(2) of the Crimes Act 1914.

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SECTION 224A MATTERS TO BE INCLUDED IN AN INFRINGEMENT NOTICE

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224A(1)
An infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is given; and

(c) state the name of the person to whom the notice is given; and

(d) state the name and contact details of the person who gave the notice, and that the person is an infringement officer for the purposes of issuing the infringement notice; and

(e) give details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose if the provision were contravened; and

(iii) the time (if known) and day of, and the place of, the alleged contravention; and

(f) state the amount that is payable under the notice; and

(g) give an explanation of how payment of the amount is to be made; and

(h) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn):

(i) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order will not be brought in relation to the alleged contravention; or

(ii) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order will not be brought, and the person is not liable to be prosecuted in a court, in relation to the alleged contravention; or

(iii) if the provision is an offence provision - the person will not be liable to be prosecuted in a court for the alleged contravention; and

(i) state that payment of the amount is not an admission of guilt or liability; and

(j) state that the person may apply to the relevant chief executive to have the period in which to pay the amount extended; and

(k) state that the person may choose not to pay the amount and, if the person does so:

(i) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; or

(ii) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order may be brought, and the person may be liable to be prosecuted in a court, in relation to the alleged contravention; or

(iii) if the provision is an offence provision - the person may be liable to be prosecuted in a court for the alleged contravention; and

(l) set out how the notice can be withdrawn; and

(m) state that if the notice is withdrawn:

(i) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; or

(ii) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order may be brought, and the person may be liable to be prosecuted in a court, in relation to the alleged contravention; or

(iii) if the provision is an offence provision - the person may be liable to be prosecuted in a court for the alleged contravention; and

(n) state that the person may make written representations to the relevant chief executive seeking the withdrawal of the notice; and

(o) include any other information prescribed by the regulations.

224A(2)
For the purposes of paragraph (1)(f), the amount to be stated in the notice for the alleged contravention of the provision must be equal to:

(a) if the provision is an offence provision - one-fifth of the maximum penalty that a court could impose on the person for that contravention; and

(b) if the provision is a civil penalty provision - one-fortieth of the maximum penalty that a court could impose on the person for that contravention.

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SECTION 224B EXTENSION OF TIME TO PAY AMOUNT

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224B(1)
A person to whom an infringement notice has been given may apply to the relevant chief executive for an extension of the period referred to inparagraph 224A(1)(h).

224B(2)
If the application is made before the end of that period, the relevant chief executive may, in writing, extend that period. The relevant chief executive may do so before or after the end of that period.

224B(3)
If the relevant chief executive extends that period, a reference in this Part, or in a notice or other instrument under this Part, to the period referred to in paragraph 224A(1)(h) is taken to be a reference to that period so extended.

224B(4)
If the relevant chief executive does not extend that period, a reference in this Part, or in a notice or other instrument under this Part, to the period referred to in paragraph 224A(1)(h) is taken to be a reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in paragraph 224A(1)(h);

(b) the day that is 7 days after the day the person was given notice of the relevant chief executive's decision not to extend.

224B(5)
The relevant chief executive may extend the period more than once under subsection (2).

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SECTION 224C WITHDRAWAL OF AN INFRINGEMENT NOTICE

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Representations seeking withdrawal of notice

224C(1)
A person to whom an infringement notice has been given may make written representations to the relevant chief executive seeking the withdrawal of the notice.

Withdrawal of notice

224C(2)
The relevant chief executive may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).

224C(3)
When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the relevant chief executive:

(a) must take into account any written representations seeking the withdrawal that were given by the person to the relevant chief executive; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice under this Part;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a provision subject to an infringement notice under this Part if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;

(iv) any other matter the relevant chief executive considers relevant.

Notice of withdrawal

224C(4)
Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:

(a) the person's name and address; and

(b) the day the infringement notice was given; and

(c) the identifying number of the infringement notice; and

(d) that the infringement notice is withdrawn; and

(e) that:

(i) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; or

(ii) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order may be brought, and the person may be liable to be prosecuted in a court, in relation to the alleged contravention; or

(iii) if the provision is an offence provision - the person may be liable to be prosecuted in a court for the alleged contravention.

Refund of amount if infringement notice withdrawn

224C(5)
If:

(a) the relevant chief executive withdraws the infringement notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to the amount paid.

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SECTION 224D EFFECT OF PAYMENT OF AMOUNT

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224D(1)
If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 224A(1)(h):

(a) any liability of the person for the alleged contravention is discharged; and

(b) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order may not be brought in relation to the alleged contravention; and

(c) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order may not be brought, and the person may not be prosecuted in a court, in relation to the alleged contravention; and

(d) if the provision is an offence provision - the person may not be prosecuted in a court for the alleged contravention; and

(e) the person is not regarded as having admitted guilt or liability for the alleged contravention; and

(f) if the provision is an offence provision - the person is not regarded as having been convicted of the alleged offence.

224D(2)
Subsection (1) does not apply if the notice has been withdrawn.

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SECTION 224E

224E EFFECT OF THIS PART

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This Part does not:

(a) require an infringement notice to be given to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or

(b) affect the liability of a person for an alleged contravention of a provision subject to an infringement notice under this Part if:

(i) the person does not comply with an infringement notice given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the contravention; or

(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or

(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or

(d) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a provision subject to an infringement notice under this Part.

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PART 23 - FINANCIAL ASSISTANCE TO CERTAIN FUNDS

Division 1 - Preliminary

SECTION 227

227 OBJECT OF PART
The object of this Part is to make provision for the grant of financial assistance for certain superannuation entities that have suffered loss as a result of fraudulent conduct or theft.

SECTION 228

228 INTERPRETATION

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In this Part:

defined benefit fund
(Repealed by No 154 of 2007)

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defined benefit member
(Repealed by No 154 of 2007)

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defined benefit pension
(Repealed by No 154 of 2007)

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eligible loss
means a loss suffered by a fund as a result of fraudulent conduct, or theft, but does not include an amount that the fund did not receive because of the failure of a person to pay contributions to the fund.

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fund
(Repealed by No 154 of 2007)

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levy
means the levy imposed by the Superannuation (Financial Assistance Funding) Levy Act 1993.

"loss"
(Repealed by No 24 of 2000)

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SECTION 229 APPLICATION FOR ASSISTANCE

229(1) [Application to Minister]

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If:

(a) a fund suffers an eligible loss after the commencement of this Part; and

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(aa) at the time it suffers the loss, the fund is:

(i) a regulated superannuation fund (other than a self managed superannuation fund); or

(ii) an approved deposit fund; and

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(b) the loss has caused substantial diminution of the fund leading to difficulties in the payment of benefits;

a trustee of the fund may apply to the Minister for a grant of financial assistance for the fund.

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229(2) [Form and contents of application]

The application must be in writing and be accompanied by such information as the Minister determines.

229(3) [Application by SMSF trustee]

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To avoid doubt, an application may be made under this section by a trustee of a self managed superannuation fund as long as the fund met the requirements in subsection (1) at the time the fund suffered the loss to which the application relates.

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SECTION 230 MINISTER MAY REQUEST ADDITIONAL INFORMATION

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230(1) [Additional information may be requested]

The Minister may request a trustee of the fund to give such additional information as the Minister considers necessary to enable the application to be determined.

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230(2) [Minister's power to delegate]

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The Minister may, by signed instrument, delegate the Minister's power under subsection (1) to an SES employee, or acting SES employee, in the Department.

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230(3) [Minister's directions to delegate]

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In exercising a power delegated under subsection (2), a delegate must comply with any directions of the Minister.

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SECTION 230A APRA TO ADVISE MINISTER IN RELATION TO APPLICATION FOR ASSISTANCE

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230A(1) [Written request for advice]

The Minister must make a written request to APRA for advice in relation to the application. The request may specify:

(a) particular matters that APRA is to provide advice about; and

(b) a time by which the advice must be provided.

230A(2) [APRA to comply]

APRA must comply with the request and may, in its advice, also address any other issues that APRA considers relevant to the determination of the application.

230A(3) [Tabling in Parliament]

The Minister's written request to APRA made under subsection (1) for advice in relation to the application for assistance must be laid before each House of the Parliament as soon as practicable after the Minister has made a written determination under subsection 231(1).

230A(4) [Minister's power to delegate]

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The Minister may, by signed instrument, delegate the Minister's function under subsection (1) to an SES employee, or acting SES employee, in the Department.

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230A(5) [Minister's directions to delegate]

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In exercising a function delegated under subsection (4), a delegate must comply with any directions of the Minister.

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Division 2 - Determination of applications for financial assistance

SECTION 231 MINISTER MAY GRANT FINANCIAL ASSISTANCE

231(1) [Minister's determination]

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If, after considering the application, any additional information given by a trustee of the fund, and APRA's advice under section 230A, the Minister is satisfied that the fund has suffered an eligible loss as mentioned in subsection 229(1), the Minister is to determine in writing:

(a) whether the public interest requires that a grant of financial assistance should be made to a trustee of the fund for the purposes of restoring the loss; and

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(b) if so, the amount of the assistance.

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231(2) [Payment of financial assistance]

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Financial assistance payable to a trustee of a fund is to be paid in such amounts, at such times, and in such manner, as the Minister determines.

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231(3) [Self managed superannuation funds]

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To avoid doubt, the Minister may grant financial assistance to a self managed superannuation fund under this section as long as the fund met the requirements in subsection 229(1) at the time the fund suffered the loss to which the assistance relates.

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231(4) [Consolidated Revenue Fund]

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The Consolidated Revenue Fund is appropriated for the purposes of making payments of financial assistance granted under this section.

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231(5) [Australian Prudential Regulation Authority Special Account]

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Amounts appropriated under this section are not to be credited to the Australian Prudential Regulation Authority Special Account.

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SECTION 232

232 MAXIMUM AMOUNT OF FINANCIAL ASSISTANCE

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The amount of financial assistance to be granted to a trustee of a fund in respect of the fund must not be greater than the amount that the Minister determines to be the eligible loss suffered by the fund.

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SECTION 233 FINANCIAL ASSISTANCE TO BE SUBJECT TO CONDITIONS

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233(1) [Conditions]

The payment to a trustee of a fund of a grant of financial assistance is subject to the following conditions:

(a) a condition that the amount of financial assistance granted will be deposited in the corpus of the fund;

(b) a condition that the amount will be applied, within a period determined by the Minister:

(i) in making payments to persons who were beneficiaries in the fund at the time the fund suffered the eligible loss; or

(ii) for the benefit of those persons in such other manner as the Minister approves in writing;

(c) a condition that a trustee of the fund will prepare and give to the Minister such reports on the application of the amount as are required by the Minister;

(d) such other conditions (if any) as the Minister determines and notifies in writing to a trustee of the fund.

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233(2) [Compliance]

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Despite any law of the Commonwealth, a State or a Territory, whether written or unwritten, or any provision of a trust deed or other rules according to which a fund is administered:

(a) a trustee of a fund must comply with a condition mentioned in paragraph (1)(b); and

(b) the trustee does not contravene the law, trust deed or rules by complying with such a condition.

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Division 3 - Repayment of financial assistance

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234 (Repealed) SECTION 234 SUPERANNUATION PROTECTION ACCOUNT
(Repealed by No 154 of 2007)

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235 (Repealed) SECTION 235 MINISTER TO DECIDE THE SOURCE FROM WHICH FINANCIAL ASSISTANCE IS TO BE PAID
(Repealed by No 154 of 2007)

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236 (Repealed) SECTION 236 PURPOSES OF ACCOUNT
(Repealed by No 154 of 2007)

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237 (Repealed) SECTION 237 SEPARATE NOTIONAL ACCOUNTS TO BE KEPT WITHIN THE ACCOUNT
(Repealed by No 154 of 2007)

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SECTION 238 FINANCIAL ASSISTANCE TO BE REPAID IN CERTAIN CIRCUMSTANCES

238(1) [Trustee liable to repay]

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The trustee, or the trustees, of a fund for which a grant of financial assistance has been made are liable to repay to the Commonwealth the amount of the financial assistance or such part of that amount as the Minister determines if:

(a) a condition to which the grant of the financial assistance was subject has been contravened; or

(b) the grant of the financial assistance is subject to a condition that a particular event does not occur and that event has occurred.

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238(2) [Manner of repayment]

The Minister is to determine the manner in which repayments of financial assistance are to be made.

238(3) [Amount debt due to Commonwealth]

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If the trustee, or the trustees, of a fund are liable to pay an amount to the Commonwealth under subsection (1), the Commonwealth may recover the amount as a debt.

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SECTION 239

239 MINISTER MAY REMIT LIABILITY

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The Minister may remit the whole or a part of the liability of a trustee of a fund under section 238.

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SECTION 240

240 REPAYABLE GRANT TO HAVE PRIORITY OVER OTHER DEBTS

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Despite any other law of the Commonwealth or any law of a State or Territory, an amount payable to the Commonwealth by a trustee of a fund under section 238 has priority over all other debts (whether preferential, secured or unsecured).

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PART 24 - ELIGIBLE ROLLOVER FUNDS

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[ CCH Note: Pt 24 has effect in relation to standard employer-sponsored funds and eligible rollover funds, and their trustees, as if it were modified by amendments to s 244, 247, 248 and 249 - see ISC Modification Declaration No 4 under s 244, 247, 248 and 249.]

Division 1 - Preliminary

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SECTION 241

241 OBJECT OF THIS PART

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The object of this Part is:

(a) to provide for the authorisation of RSE licensees to operate eligible rollover funds; and

(b) to impose additional obligations on trustees, and directors of corporate trustees, in relation to eligible rollover funds; and

(c) to provide a facility for the payment of benefits to eligible rollover funds.

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SECTION 242

242 INTERPRETATION

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In this Part:

eligible rollover fund
(Repealed by No 171 of 2012)

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fund
means a regulated superannuation fund.

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"report"
(Repealed by No 53 of 1995)

Division 2 - Authority to operate an eligible rollover fund

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Subdivision A - Applying for authority

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SECTION 242A APPLICATION FOR AUTHORITY TO OPERATE AN ELIGIBLE ROLLOVER FUND

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Who may apply?

242A(1)
An RSE licensee of a prescribed class may apply to APRA for authority to operate a regulated superannuation fund as an eligible rollover fund.

Requirements for applications

242A(2)
An application for authority to operate a regulated superannuation fund as an eligible rollover fund must:

(a) be in the approved form; and

(b) contain the information required by the approved form; and

(c) state the RSE licensee's and the fund's ABNs; and

(d) be accompanied by an election made in accordance with each of the following sections:

(i) section 242B;

(ii) section 242C.

242A(3)
If:

(a) an RSE licensee applies for authority to operate a regulated superannuation fund as an eligible rollover fund; and

(b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct;

the RSE licensee must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct.

242A(4)
An application is taken not to comply with this section if subsection (3) is contravened.

Note:

APRA cannot give authorityto operate a regulated superannuation fund as an eligible rollover fund while the application does not comply with this section: see paragraph 242F(1)(a).

242A(4A)

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An application for authority to operate a regulated superannuation fund as an eligible rollover fund must not be made on or after the day Schedule 1 to the Treasury Laws Amendment (Reuniting More Superannuation) Act 2021 commences.

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Lapsed applications

242A(5)
An application for authority lapses if:

(a) it was made by an RSE licensee; and

(b) the RSE licensee ceases to be an RSE licensee, or an RSE licensee of a class prescribed for the purposes of subsection (1), before:

(i) APRA makes a decision on the application for authority; or

(ii) if APRA's decision with respect to the application is subject to review under this Act - the review is finally determined or otherwise disposed of.

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SECTION 242B

242B ELECTION TO TRANSFER AMOUNTS HELD IN ELIGIBLE ROLLOVER FUND IF AUTHORISATION CANCELLED

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An RSE licensee that applies for authority to operate a regulated superannuation fund as an eligible rollover fund makes an election in accordance with this section if:

(a) the RSE licensee elects:

(i) to take the action required under the prudential standards in relation to amounts held in the eligible rollover fund, if the authority to operate the fund as an eligible rollover fund is cancelled under subsection 242J(1); and

(ii) to do so before the end of a period of 90 days beginning on the day on which notice of the cancellation is given to the RSE licensee under subsection 242J(3); and

(b) the election is in writing; and

(c) the election is in the approved form.

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SECTION 242C ELECTION NOT TO CHARGE MEMBERS OF ELIGIBLE ROLLOVER FUND FOR PAYMENT OF CONFLICTED REMUNERATION

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242C(1)
An RSE licensee that applies for authority to operate a regulated superannuation fund as an eligible rollover fund makes an election in accordance with this section if:

(a) the RSE licensee elects that, if the authority is given, the RSE licensee will not charge any member of the fund a fee all or part of which relates directly or indirectly to costs incurred by a trustee or the trustees of the fund:

(i) in paying conflicted remuneration to a financial services licensee, or a representative of a financial services licensee; or

(ii) in paying an amount to another person that a trustee of the fund knows, or reasonably ought to know, relates to conflicted remuneration paid by that other person to a financial services licensee, or a representative of a financial services licensee; and

(b) the election is in writing; and

(c) the election is in the approved form.

242C(2)

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In this section:

conflicted remuneration
has the same meaning as in the Corporations Act 2001, subject to the extension of that meaning in subsection (3).

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representative
, of a financial services licensee, has the same meaning as in the Corporations Act 2001.

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242C(3)
In this section, conflicted remuneration also has the meaning it would have if:

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SECTION 242D

242D APRA MAY REQUEST FURTHER INFORMATION

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APRA may give an RSE licensee that has applied for authority to operate a regulated superannuation fund as an eligible rollover fund a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application.

Note:

A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 242E(1)(b).

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SECTION 242E PERIOD FOR DECIDING APPLICATIONS FOR AUTHORITY

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242E(1)
APRA must decide an application by an RSE licensee for authority to operate a regulated superannuation fund as an eligible rollover fund:

(a) within 60 days after receiving the application; or

(b) if the applicant was requested to provide information under section 242D - within 60 days after:

(i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or

(ii) all notices relating to that information being disposed of;

unless APRA extends the period for deciding the application under subsection (2).

242E(2)
APRA may extend the period for deciding an application by an RSE licensee for authority to operate a regulated superannuation fund as an eligible rollover fund by up to 60 days if APRA informs the RSE licensee of the extension:

(a) in writing; and

(b) within the period in which it would otherwise be required to decide the application under subsection (1).

242E(3)
If APRA extends the period for deciding an application for authority to operate a regulated superannuation fund as an eligible rollover fund, it must decide the application within the extended period.

242E(4)
If APRA has not decided an application for authority to operate a regulated superannuation fund as an eligible rollover fund by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.

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Subdivision B - Authority

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SECTION 242F AUTHORITY TO OPERATE AN ELIGIBLE ROLLOVER FUND

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242F(1)
APRA must authorise an RSE licensee to operate a regulated superannuation fund as an eligible rollover fund if, and only if:

(a) the application for authority complies with section 242A; and

(b) the applicant has provided to APRA all information that the applicant was requested, under section 242D, to provide, or the request has been disposed of; and

(c) the fund is registered under Part 2B; and

(d) the RSE licensee is of a class prescribed for the purposes of subsection 242A(1); and

(e) APRA is satisfied that, under the governing rules of the fund:

(i) the only purpose of the fund is to be a temporary repository for amounts transferred to the fund from other regulated superannuation funds in circumstances allowed by the RSE licensee law; and

(ii) a single diversified investment strategy is to be adopted in relation to all assets of the fund; and

(f) APRA is satisfied that the RSE licensee is likely to comply with the enhanced trustee obligations for eligible rollover funds; and

(g) APRA is satisfied that the directors of the RSE licensee are likely to comply with the enhanced director obligations for eligible rollover funds; and

(h) APRA is satisfied that the RSE licensee is likely to comply with the general fees rules; and

(i) APRA is satisfied that the RSE licensee is not likely to contravene section 242P.

242F(2)
Otherwise APRA must refuse to give the authority.

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SECTION 242G

242G NOTICE OF AUTHORITY

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If APRA authorises an RSE licensee to operate a regulated superannuation fund as an eligible rollover fund, APRA must notify the RSE licensee in writing of the authority.

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SECTION 242H

242H APRA TO GIVE NOTICE OF REFUSAL OF AUTHORITY

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If APRA refuses an application by an RSE licensee for authority to operate a regulated superannuation fund as an eligible rollover fund, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice:

(a) informing it of APRA's refusal of the application; and

(b) setting out the reasons for the refusal;

as soon as practicable after refusing the application.

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Subdivision C - Cancelling authority

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SECTION 242J CANCELLING AUTHORITY TO OPERATE ELIGIBLE ROLLOVER FUND

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242J(1)
APRA may, in writing, cancel an authority to operate a regulated superannuation fund as an eligible rollover fund.

242J(2)
Without limiting subsection (1), APRA may cancel an authority to operate a regulated superannuation fund as an eligible rollover fund if:

(a) APRA is no longer satisfied that, under the governing rules of the fund:

(i) the only purpose of the fund is to be a temporary repository for amounts transferred to the fund from other regulated superannuation funds in circumstances allowed by the RSE licensee law; and

(ii) a single diversified investment strategy is to be adopted in relation to all assets of the fund; or

(b) APRA is no longer satisfied that the RSE licensee is likely to comply with the enhanced trustee obligations for eligible rollover funds (whether because of a previous failure to do so, or for any other reason); or

(c) APRA is no longer satisfied that the directors of the RSE licensee are likely to comply with the enhanced director obligations for eligible rollover funds (whether because of a previous failure to do so, or for any other reason); or

(d) APRA is no longer satisfied that the RSE licensee is likely to comply with the general fees rules (whether because of a previous failure to do so, or for any other reason); or

(e) APRA is no longer satisfied that the RSE licensee is not likely to contravene section 242P (whether because of a previous contravention of that section, or for any other reason); or

(f) the fund ceases to be registered under Part 2B; or

(g) the RSE licensee ceases to be of a class prescribed for the purposes of subsection 242A(1); or

(h) APRA is satisfied that the RSE licensee has contravened a provision of the governing rules of the eligible rollover fund; or

(i) APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 242C (election not to pass costs of conflicted remuneration to members of eligible rollover fund).

242J(3)
If APRA cancels an authority to operate a regulated superannuation fund as an eligible rollover fund it must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee:

(a) that APRA has cancelled the authority; and

(b) of the reasons for the cancellation.

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Subdivision D - Trustee obligations relating to eligible rollover funds

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SECTION 242K

242K ADDITIONAL OBLIGATIONS OF A TRUSTEE IN RELATION TO AN ELIGIBLE ROLLOVER FUND

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Each trustee of an eligible rollover fund must promote the financial interests of the beneficiaries of the fund, in particular returns to those beneficiaries (after the deduction of fees, costs and taxes).

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SECTION 242L ADDITIONAL OBLIGATIONS OF A DIRECTOR OF A CORPORATE TRUSTEE IN RELATION TO AN ELIGIBLE ROLLOVER FUND

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242L(1)
Each director of a corporate trustee of an eligible rollover fund must exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the obligations referred to in section 242K.

242L(2)
The reference in subsection (1) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a superannuation entity director would exercise in the corporate trustee's circumstances.

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SECTION 242M CONTRAVENTION OF SECTION 242K OR 242L

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242M(1)
A person must not contravene section 242K or 242L.

242M(2)
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.

242M(3)
A contravention of subsection (1) does not result in the invalidity of a transaction.

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SECTION 242N

242N GOVERNING RULES VOID TO THE EXTENT THAT THEY ARE INCONSISTENT WITH OBLIGATIONS UNDER SECTION 242K OR 242L

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A provision of the governing rules of an eligible rollover fund is void to the extent that it is inconsistent with:

(a) the obligations that apply to a trustee of the fund under section 242K; or

(b) the obligations that apply to the directors of a corporate trustee of the fund under section 242L.

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Subdivision E - Miscellaneous

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SECTION 242P OPERATING A FUND AS AN ELIGIBLE ROLLOVER FUND WHEN NOT AUTHORISED TO DO SO

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242P(1)
A person commits an offence if:

(a) the person makes a representation; and

(b) the representation is that a regulated superannuation fund is an eligible rollover fund; and

(c) the RSE licensee for the fund does not have authority to operate the fund as an eligible rollover fund.

Penalty: 60 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

242P(2)
Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

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SECTION 242Q

242Q PRUDENTIAL STANDARDS DEALING WITH AMOUNTS HELD IN ELIGIBLE ROLLOVER FUNDS

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A prudential standard determined under section 34C may include provisions:

(a) requiring an RSE licensee whose authority to operate a regulated superannuation fund as an eligible rollover fund is cancelled under subsection 242J(1) to transfer any amounts held in the eligible rollover fund to a regulated superannuation fund that:

(i) is an eligible rollover fund; or

(ii) offers a MySuper product; and

(b) setting out the requirements that must be met in relation to the transfer of such amounts; and

(c) dealing with other matters relating to such amounts.

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SECTION 242R

242R NO LIABILITY FOR GIVING EFFECT TO A SECTION 242B ELECTION

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A trustee of a regulated superannuation fund is not subject to any liability to a member of the fund for an action taken to give effect to an election made in accordance with section 242B.

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Division 3 - Facility to pay benefits to eligible rollover funds

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SECTION 243 PAYMENT OF BENEFITS TO ELIGIBLE ROLLOVER FUND

243(1) When section applies.

This section applies at a particular time if:

(a) a person (the first person ) is a beneficiary of a fund (the transferor fund ); and

(b) the time is after the date specified in the regulations; and

(c) the conditions specified in the regulations are satisfied.

243(2) Application to eligible rollover fund.

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A trustee of the transferor fund may apply to a trustee of an eligible rollover fund, on behalf of the first person, for the issue to the first person of a superannuation interest in the eligible rollover fund.

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243(2A)

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The application must not be made on or after the later of:

(a) 1 May 2021; and

(b) the seventh day after the day Schedule 1 to the Treasury Laws Amendment (Reuniting More Superannuation) Act 2021 commences.

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243(3) Consideration for issue.

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The application is to be made on the basis that:

(a) the consideration for the issue is to be paid, on behalf of the first person, by a trustee of the transferor fund; and

(b) the amount of the consideration is equal to the amount ascertained in accordance with the regulations; and

(c) a trustee of the transferor fund is not entitled to recover the consideration from the first person (except as a result of the operation of subsection (5)).

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243(4) Authorisation by beneficiary.

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The first person is taken to have authorised:

(a) the trustee of the transferor fund who made the application to make the application; and

(b) the trustee of the transferor fund who paid the consideration to pay the consideration.

This rule has effect despite any direction to the contrary by the first person.

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243(5) Beneficiary ceases to have rights against transferor fund etc.

If the superannuation interest is issued in accordance with the application:

(a) the first person ceases to have rights against the transferor fund; and

(b) if:

(i) immediately before the interest was issued in accordance with the application, another person (the second person ) had a contingent right against the transferor fund to a death or disability benefit; and

(ii) the contingent right was derived from the first person's capacity as a beneficiary of the transferor fund;

the second person ceases to have the contingent right against the transferor fund.

To avoid doubt, a reference in paragraph (a) to a right against the transferor fund includes a reference to a contingent right to a death or disability benefit.

243(6) Governing rules overridden.

This section has effect despite anything in the governing rules of the transferor fund.

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SECTION 244 OPERATING STANDARDS FOR TRANSFEROR FUNDS - INFORMATION AND RECORDS

244(1) When section applies.

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This section applies if an application is made under section 243 by a trustee of a fund (the transferor fund ) to a trustee of an eligible rollover fund, on behalf of a person, for the issue to the person of a superannuation interest in the eligible rollover fund.

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244(2) Operating standards.

Without limiting, by implication, the generality of the standards that may be prescribed under section 31 or 32, those standards may include standards relating to the following matters:

(a) requiring a trustee of the transferor fund to give to a trustee of the eligible rollover fund such information about the person as is specified in the standards;

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(b) requiring each trustee of the transferor fund to ensure that a record of the application is kept and retained.

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245 (Repealed) SECTION 245 TAX FILE NUMBER INFORMATION
(Repealed by No 76 of 1996)

246 (Repealed) SECTION 246 DEEMED QUOTATION OF TAX FILE NUMBERS TO ELIGIBLE ROLLOVER FUNDS
(Repealed by No 76 of 1996)

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247 (Repealed) SECTION 247 RECORDING ETC. OF TAX FILE NUMBERS
(Repealed by No 76 of 1996)

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SECTION 248 CLAIMS FOR BENEFITS

248(1) [Application]

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This section applies to a benefit held by an eligible rollover fund, where the superannuation interest to which the benefit relates was issued pursuant to an application under section 243 of this Act or section 89 of the Retirement Savings Accounts Act 1997.

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248(2) [Approved form of application]

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A person who considers that he or she is entitled to the benefit may apply in the approved form to a trustee of the fund for payment of the benefit.

Note:

The approved form of application may require the person to set out his or her tax file number. See subsection 299U(6).

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248(3)
(Repealed by No 76 of 1996)

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249 (Repealed) FORMER SECTION 249 TRUSTEE OF ELIGIBLE ROLLOVER FUND TO NOTIFY COMMISSIONER OF RECEIPT OF PAYMENTS
(Repealed by No 53 of 1995)

250 (Repealed) FORMER SECTION 250 REGISTER OF ROLLED-OVER BENEFITS
(Repealed by No 53 of 1995)

PART 24A - TRANSITIONAL PROVISIONS RELATING TO PRE-1 JULY 1995 AUTOMATIC ROLLOVERS OF BENEFITS BETWEEN FUNDS

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SECTION 249

249 OBJECT OF PART
The object of this Part is to provide for certain transitional measures relating to pre-1 July 1995 automatic rollovers of benefits between funds.

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SECTION 250

250 DEFINITIONS
In this Part:

eligible transitional fund
means a fund that was, at any time before 1 July 1995, an eligible rollover fund within the meaning of old Part 24.

fund
means a regulated superannuation fund or an approved deposit fund.

old Part 24
means Part 24 as in force at any time before 1 July 1995.

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SECTION 251 RIGHTS OF BENEFICIARY TO ROLLED-OVER BENEFITS

251(1) [Beneficiary's rights]

If a fund has paid in accordance with old Part 24 to an eligible transitional fund an amount equal to the benefits of a beneficiary in the first-mentioned fund:

(a) the beneficiary ceases to have any rights against the first-mentioned fund in respect of those benefits; but

(b) has the corresponding rights against the eligible transitional fund in respect of those benefits.

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251(2) [Contingent rights]

For the purposes of this section, a mere contingent right to a death or disability benefit is taken not to be a right in respect of the first-mentioned benefits.

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251(3) [Purpose of subsec (2)]

Subsection (2) is enacted for the avoidance of doubt.

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SECTION 252

252 CLAIMS TO ROLLED-OVER BENEFITS

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A person who considers that, as a result of paragraph 251(1)(b), he or she is entitled to benefits held by an eligible transitional fund may apply in the approved form to a trustee of that fund for payment of the benefits.

Note:

The approved form of application may require the person to set out his or her tax file number. See subsection 299U(7).

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252(2)
(Repealed by No 76 of 1996)

PART 24B - PROVISIONS RELATING TO THE ADMINISTRATION BY APRA AND THE COMMISSIONER OF TAXATION OF SUPERANNUATION FUNDS WITH NO MORE THAN 6 MEMBERS

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Division 1 - Monitoring of superannuation funds with no more than 6 members

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SECTION 252A APRA OR COMMISSIONER OF TAXATION MAY REQUEST CERTAIN INFORMATION

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252A(1) Notice may be given.

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APRA or the Commissioner of Taxation may give a written notice under this section to a trustee of a regulated superannuation fund if APRA or the Commissioner of Taxation, as the case requires, considers that the fund has no more than 6 members.

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252A(2) Information that may be requested.

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The notice may require each trustee of the fund, within a specified period (which must not be shorter than 21 days), to ensure that APRA or the Commissioner of Taxation is informed:

(a)

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whether or not the fund was a self managed superannuation fund as at the date (the response date ) on which APRA or the Commissioner of Taxation was so informed; or

(b)

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if the fund was not a self managed superannuation fund as at the response date - whether the trustee, or the trustees, of the fund consider that the fund is likely to become a self managed superannuation fund within the period specified in the notice; and

(c)

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if the fund was a self managed superannuation fund as at the response date - whether the trustee, or the trustees, of the fund consider that the fund is likely to cease to be a self managed superannuation fund within the period specified in the notice.

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252A(3) Offence.

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A person who contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

252A(4) Strict liability.

An offence under subsection (3) is an offence of strict liability.

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252B (Repealed) SECTION 252B CONTRAVENTION NOTICES
(Repealed by No 61 of 2013)

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(Repealed) Division 2 - Secrecy provisions relating to Commissioner of Taxation

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252C (Repealed) SECTION 252C SECRECY - GENERAL OBLIGATIONS
(Repealed by No 145 of 2010)

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Division 3 - Transitional and savings provisions relating to the regulation of self managed superannuation funds by the Commissioner of Taxation

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SECTION 252D

252D DEFINITION

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In this Division:

commencement day
means the day on which section 1 of the Superannuation Legislation Amendment Act (No 3) 1999 commenced.

[ CCH Note: The Superannuation Legislation Amendment Act (No. 3) 1999 commenced on 8 October 1999.]

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SECTION 252E INSTRUMENTS MADE OR ISSUED BY APRA OR BY THE COMMISSIONER OF TAXATION

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252E(1) Instruments made by APRA.

An instrument that:

(a) relates to a superannuation fund; and

(b) was in force immediately before a particular time (the switching time ); and

(c) was made or issued (whether before, on or after the commencement day) by APRA under a provision of this Act that:

(i) immediately before the switching time, was administered by APRA in relation to the fund; and

(ii) as at the switching time, is administered by the Commissioner of Taxation in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been made or issued by the Commissioner of Taxation.

252E(2) Instruments made by Commissioner of Taxation.

An instrument that:

(a) relates to a superannuation fund; and

(b) was in force immediately before a particular time (the switching time ); and

(c) was made or issued by the Commissioner of Taxation under a provision of this Act that:

(i) immediately before the switching time, was administered by the Commissioner of Taxation in relation to the fund; and

(ii) as atthe switching time, is administered by APRA in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been made or issued by APRA.

252E(3) Instruments for a limited period.

If an instrument referred to in this section was, when made, to have effect only for a limited period, it has effect only for so much of the period as has not already expired before the switching time.

252E(4) Instruments not in operation.

A reference in this item to an instrument in force includes a reference to an instrument that has been made but is not yet in operation.

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SECTION 252F OBLIGATIONS OWED BY OR TO APRA OR THE COMMISSIONER OF TAXATION

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252F(1) [Transfer of obligations]

Subject to section 252G, an obligation that:

(a) relates to a superannuation fund; and

(b) was owed by APRA, or to APRA, immediately before a particular time (the switching time ); and

(c) was owed (whether before, on or after the commencement day) under a provision of this Act that:

(i) immediately before the switching time, was administered by APRA in relation to the fund; and

(ii) as at the switching time, is administered by the Commissioner of Taxation in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been owed by, or to, the Commissioner of Taxation.

252F(2) Rights and powers of APRA.

Subject to section 252G, a right or power that:

(a) relates to a superannuation fund; and

(b) was possessed by, or conferred on, APRA immediately before a particular time (the switching time ); and

(c) was possessed or conferred (whether before, on or after the commencement day) under a provision of this Act that:

(i) immediately before the switching time, was administered by APRA in relation to the fund; and

(ii) as at the switching time, is administered by the Commissioner of Taxation in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been possessed by, or conferred on, the Commissioner of Taxation.

252F(3) Obligations owed by, or to, the Commissioner of Taxation.

An obligation that:

(a) relates to a superannuation fund; and

(b) was owed by the Commissioner of Taxation, or to the Commissioner of Taxation, immediately before a particular time (the switching time ); and

(c) was owed under a provision of this Act that:

(i) immediately before the switching time, was administered by the Commissioner of Taxation in relation to the fund; and

(ii) as at the switching time, is administered by APRA in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been owed by, or to, APRA.

252F(4) Rights and powers of the Commissioner of Taxation.

A right or power that:

(a) relates to a superannuation fund; and

(b) was possessed by, or conferred on, the Commissioner of Taxation immediately before a particular time (the switching time ); and

(c) was possessed or conferred under a provision of this Act that:

(i) immediately before the switching time, was administered by the Commissioner of Taxation in relation to the fund; and

(ii) as at the switching time, is administered by APRA in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been possessed by, or conferred on, APRA.

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SECTION 252G OUTSTANDING ANNUAL RETURNS AND AMOUNTS

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252G(1) Outstanding annual returns etc. - self managed funds.

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If:

(a) a superannuation fund was a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, a trustee of the fund was under an obligation to ensure that APRA is given an annual return in respect of a previous year of income, or any other report or information under this Act or the Financial Sector (Collection of Data) Act 2001;

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each trustee of the fund is taken (subject to any later application of this section) to be under an obligation, beginning immediately after that time, to ensure that the annual return, report or information is given to the Commissioner of Taxation. The annual return, report or information is to be given in the approved form.

Note:

This provision only affects annual returns outstanding from years before the designated year of income. A trustee will still be required to submit a return under section 36A for the designated year of income (and also under the Financial Sector (Collection of Data) Act 2001 if the fund changed status during the designated year of income). Levy will be payable on lodgment of any such return.

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252G(2) Outstanding annual returns etc. - other funds.

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If:

(a) a superannuation fund was a fund other than a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, a trustee of the fund was under an obligation to ensure that the Commissioner of Taxation is given an annual return in respect of a previous year of income, or any other report or information under this Act;

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each trustee of the fund is taken (subject to any later application of this section) to be under an obligation, beginning immediately after that time, to ensure that the annual return, report or information is given to APRA. The annual return, report or information is to be given in the approved form.

Note:

This provision only affects annual returns outstanding from years before the designated year of income. A trustee will still be required to submit a return under the Financial Sector (Collection of Data) Act 2001 for the designated year of income (and also under section 36A if the fund changed status during the designated year of income). Levy will be payable on lodgment of any such return.

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252G(3) Outstanding levy - self managed funds.

If:

(a) a superannuation fund was a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, an amount was payable by the trustee, or the trustees, of the superannuation fund to APRA on behalf of the Commonwealth under a prescribed Act in respect of a previous year of income;

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then:

(c) the amount is taken (subject to any later application of this section) to be payable by the trustee, or the trustees, of the superannuation fund, immediately after the [sic] that time, to the Commissioner of Taxation on behalf of the Commonwealth; and

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(d) the Commissioner of Taxation has the same power to waive or remit the amount as APRA would have had if this subsection had not been enacted.

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252G(4) Outstanding levy - other funds.

If:

(a) a superannuation fund was a fund other than a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, an amount was payable by the trustee, or the trustees, of the superannuation fund to the Commissioner of Taxation under a prescribed Act in respect of a previous year of income;

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then:

(c) the amount is taken (subject to any later application of this section) to be payable by the trustee, or the trustees, of the superannuation fund, immediately after that time, to APRA on behalf of the Commonwealth; and

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(d) APRA has the same power to waive or remit the amount as the Commissioner of Taxation would have had if this subsection had not been enacted.

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252G(5) Regulations.

The regulations may prescribe exceptions to the rules set out in subsections (1) to (4), including, but not limited to the following:

(a) prescribing that, in specified circumstances, a trustee of a superannuation fund is taken to be under an obligation to give a return, report or information to APRA rather than to the Commissioner of Taxation, or to the Commissioner of Taxation rather than to APRA;

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(b) prescribing that, in specified circumstances, an amount is taken to be payable by a trustee of a superannuation fund to APRA rather than to the Commissioner of Taxation, or to the Commissioner of Taxation rather than to APRA.

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252G(6) Definitions.

In this section:

amount
means an amount of levy or an amount of late payment penalty.

designated year of income
means the 1999-2000 year of income or a later year of income.

prescribed Act
means the following:

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

(b) the Financial Institutions Supervisory Levies Collection Act 1998;

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

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SECTION 252H

252H REGULATIONS

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The regulations may deal with other transitional matters arising from the enactment of the Superannuation Legislation Amendment Act (No. 3) 1999.

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PART 25 - MONITORING AND INVESTIGATION

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Division 1 - Preliminary

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SECTION 253

253 OBJECTS OF PART

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The objects of this Part are:

(a)

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to ensure that the Regulator has sufficient power to monitor superannuation entities, approved SMSF auditors and audits of self managed superannuation funds (Division 2); and

(aa)

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to ensure that the Regulator has sufficient power to monitor employers' compliance with Part 3B (superannuation data and payment regulations and standards) (Division 2); and

(b)

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to empower the Regulator to require the trustee, or the trustees, of a superannuation entity to appoint an individual, or a committee, to investigate the financial position of the entity (Division 3); and

(c)

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to authorise the Regulator to conduct an investigation of the whole or a part of the affairs of a superannuation entity or approved SMSF auditor, or the conduct of an audit of a self managed superannuation fund, (Divisions 4, 5, 6, 7, 8 and 9); and

(d) to authorise the Regulator to accept written undertakings and to apply to the Court for an order remedying breaches of such undertakings.

Note 1:

Sections 254, 254A and 264, and Division 3, apply only to monitoring or investigating superannuation entities. They do not apply to monitoring or investigating approved SMSF auditors or to the conduct of audits of self managed superannuation funds.

Note 2:

ASIC's powers and duties as the Regulator under sections 255 and 256 apply only to monitoring superannuation entities: see subsection 5(4). They do not apply to monitoring approved SMSF auditors or to the conduct of audits of self managed superannuation funds.

Note 3:

The Commissioner of Taxation's powers and duties as the Regulator under Divisions 4 to 8 (other than section 285) apply only to investigating superannuation entities: see subsection 5(5). However, this does not affect any powers and duties the Commissioner of Taxation has under this Part in relation to contributing employers: see subsection 5(6).

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SECTION 253A

253A NOTICES MAY BE GIVEN TO FORMER RELEVANT PERSONS

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Any provision of this Part that empowers a notice to be given to a relevant person in relation to a fund, trust or approved SMSF auditor, or in relation to an audit of a self managed superannuation fund, also empowers such a notice to be given to a person who has at any time been a relevant person in relation to the fund, trust, auditor or audit.

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Division 2 - Monitoring

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SECTION 254 INFORMATION TO BE GIVEN ON ESTABLISHMENT OF SUPERANNUATION ENTITY

254(1)

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After a superannuation entity is established, each trustee of the superannuation entity must ensure that the information (if any) mentioned in subsection (2A) is given to the person or body mentioned in subsection (2B) in accordance with subsection (2).

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (1) of this section in relation to a self managed superannuation fund.

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254(1A)
(Repealed by No 67 of 2024)

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254(2)

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The information must be given:

(a) in the approved form (if any); and

(b) no later than:

(i) the end of the period, starting immediately after the establishment of the superannuation entity, prescribed by the regulations for the purposes of this subparagraph; or

(ii) if no period is prescribed - 7 days after the establishment of the superannuation entity.

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254(2A)

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The information that must be given is:

(a) the information that the approved form (if any) requires to be included; or

(b) if there is no approved form - the information prescribed by the regulations for the purposes of this paragraph in relation to the superannuation entity.

Note:

The information may include the tax file number of the entity. See subsections 299U(8) and (8A).

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254(2B)

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The information must be given to:

(a) the person or body prescribed by the regulations for the purposes of this paragraph in relation to the superannuation entity; or

(b) if no person or body is prescribed in relation to the superannuation entity - the Commissioner of Taxation.

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Receipt

254(3)

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If a trustee of a superannuation entity gives information to a person or body under subsection (1), the person or body must give to the trustee a written statement that the information has been received.

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Offences

254(4)

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A trustee commits an offence if the trustee contravenes subsection (1).

Penalty: 50 penalty units.

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254(5)

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A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 25 penalty units.

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.

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SECTION 254A

254A INFORMATION TO BE GIVEN TO REGULATOR

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The Regulator or an authorised person may, by written notice given to a trustee of a superannuation entity, require each trustee of the entity to ensure that, within a specified period, the Regulator or an authorised person is given, in relation to a specified year of income of the entity:

(a) such information; or

(b) a report on such matters;

as is set out in the notice.

Note 1:

The information may include the tax file number of the entity. See subsection 299U(9).

Note 2:

Failure to comply with the requirement is an offence. See section 285.

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SECTION 255 REGULATOR MAY REQUIRE PRODUCTION OF BOOKS

255(1)

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For the purposes of this Act, the Regulator or an authorised person may, by written notice to:

(a) a relevant person in relation to a superannuation entity or approved SMSF auditor; or

(b) a relevant person in relation to an audit of a self managed superannuation fund; or

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(c) a contributing employer;

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require the relevant person, or the contributing employer, to produce to the Regulator or an authorised person, at such reasonable time and reasonable place as are specified in a notice, any books relating to the affairs of the entity, auditor or audit, or to the obligations of the contributing employer under Part 3B.

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255(2) [Books to be in English language]

If any book produced to the Regulator or an authorised person under subsection (1) is not in writing in the English language, the Regulator or an authorised person may require the relevant person to produce to the Regulator or an authorised person a version of the book that is in writing in the English language.

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255(3) [Copies or extracts of books]

The Regulator or an authorised person may inspect, take extracts from and make copies of any book, or of any version of any book, produced to the Regulator or an authorised person under this section.

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255(4)

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The powers of the Regulator or an authorised person under this section may be exercised in relation to a superannuation entity or an approved SMSF auditor, or in relation to an audit of a self managed superannuation fund, even though an investigation is being conducted, under section 263, of:

(a) the whole or a part of the affairs of the entity or auditor; or

(b) the whole or a part of the conduct of the audit.

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SECTION 256 ACCESS TO PREMISES

256(1)

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For the purposes of this Act, an authorised person may enter, at any reasonable time, any premises at which the person has reason to believe books are kept relating to:

(a) the affairs of a superannuation entity or approved SMSF auditor; or

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(b) the conduct of an audit of a self managed superannuation fund; or

(c) the obligations of a contributing employer under Part 3B.

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256(1A)

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The authorised person may:

(a) inspect any book found on the premises:

(i) that relates to those affairs, the conduct of that audit or those obligations; or

(ii) that the authorised person believes on reasonable grounds to relate to those affairs, the conduct of that audit or those obligations; and

(b) make copies of, or take extracts from, any such book.

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256(2) [Occupier's consent]

An authorised person may not, under subsection (1), enter premises unless the occupier of the premises has consented to the entry.

SECTION 256A

256A ALTERNATIVE CONSTITUTIONAL BASIS

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Without limiting its effect apart from this section, this Part also has the effect it would have if each reference to a contributing employer were, by express provision, confined to a contributing employer that is a corporation to which paragraph 51(xx) of the Constitution applies.

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Division 3 - APRA may require trustee of superannuation entity to appoint an individual, or a committee, to investigate the financial position of the entity

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SECTION 257 INVESTIGATION OF FINANCIAL POSITION OF SUPERANNUATION ENTITY

257(1) [APRA requirement]

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APRA may, by written notice given to a trustee of a superannuation entity, require the trustee, or the trustees, of the entity to appoint an individual, or a committee of individuals, to:

(a) carry out an investigation of the whole or a specified part of the financial position of the entity as at a specified time or in relation to a specified period; and

(b) make a report on that investigation.

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257(2) [Copy of notice]

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Each trustee of the entity must ensure that a copy of the notice is given to the individual or to each member of the committee (whichever is relevant) within 3 days of the appointment of the individual or member.

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SECTION 258 QUALIFICATIONS OF INVESTIGATOR OR INVESTIGATORS

258(1) [Qualifications of single person]

If APRA's notice requires the appointment of a single person, the notice may specify qualifications (whether academic, professional or by way of experience) that must be held by the person.

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258(2) [Qualifications of committee]

If APRA's notice requires the appointment of a committee of persons, the notice may require that the committee consist of persons holding such respective qualifications (whether academic, professional or by way of experience) as are specified in the notice.

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258(3) [Qualifications required by APRA]

If APRA's notice includes a requirement of a kind mentioned in subsection (1) or (2), the person or persons appointed must hold the qualifications required by the notice.

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SECTION 259 APRA MAY VETO APPOINTMENT OF INVESTIGATOR OR INVESTIGATORS

259(1) [Trustee's advice]

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Each trustee of the entity must ensure that, within 7 days after the date on which the notice was given, APRA is advised, in writing, of the name of the person or persons appointed.

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259(2) [Where appointment unacceptable]

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If APRA notifies a trustee of the entity that the person is, or any or all of the persons are, not acceptable to APRA, the trustee, or trustees, of the entity must, within 7 days after the date on which the notice was given:

(a) appoint a different individual or individuals; and

(b) advise APRA, in writing, of the name of the individual or individuals so appointed.

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259(3) [APRA's notice]

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APRA may, within 7 days after the advice was given under subsection (1) or (2), notify a trustee of the entity, in writing, that the person is, or that any or all of the persons are, not acceptable to APRA.

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SECTION 260 DEADLINE FOR RECEIPT OF REPORT

260(1)
APRA's notice under section 257 must specify a date as the deadline for the receipt of the report.

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260(2)

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A person appointed to investigate and make a report under subsection 257(1) (whether as an individual or as a member of a committee) commits an offence if the report is not given to APRA:

(a) before the expiry of the deadline; or

(b) within such further time as APRA, by written notice, allows.

Penalty: 100 penalty units.

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260(3)

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A person appointed to investigate and make a report under subsection 257(1) (whether as an individual or as a member of a committee) commits an offence if the report is not given to APRA:

(a) before the expiry of the deadline; or

(b) within such further time as APRA, by written notice, allows.

This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 261 CONTENTS OF REPORT ETC.

261(1) [APRA's requirement]

APRA's notice under section 257 may require the report to contain a statement of the person's opinion or the committee's opinion, as the case may be, about such matters as are specified in the notice.

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261(2) [Statement of opinion]

Subject to subsection (3), if APRA's notice under section 257 includes a requirement of a kind mentioned in subsection (1) of this section, the person's report or the committee's report must contain a statement of the person's opinion or the committee's opinion, as the case may be, about the matters specified in the notice.

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261(3) [Divided report]

If the members of a committee are divided:

(a) if the division relates to the content of a statement of the committee's opinion about a particular matter - the committee's report must contain statements of the respective members' opinions about that matter; or

(b) in any other case - the committee's report is to be divided accordingly.

261(4) [Report signatories]

The report must be signed by the person or persons appointed.

SECTION 262 TRUSTEE MUST COMPLY WITH REQUIREMENTS

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262(1)

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A trustee commits an offence if the trustee contravenes a requirement imposed on the trustee by or under section 257, 258 or 259.

Penalty: 100 penalty units.

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262(2)

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A trustee commits an offence if the trustee contravenes a requirement imposed on the trustee by or under section 257, 258 or 259. This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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Division 3A - Regulator may accept and enforce undertakings

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SECTION 262A ACCEPTANCE AND ENFORCEMENT OF UNDERTAKINGS

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262A(1) [Acceptance]

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The Regulator may accept a written undertaking given by a person in connection with a matter in relation to which the Regulator has a function or power under this Act, the regulations or the prudential standards.

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262A(2) [Withdrawal with consent]

The person may withdraw or vary the undertaking at any time, but only with the Regulator's consent.

262A(3) [Breach of terms]

If the Regulator considers that the person who gave the undertaking has breached any of its terms, the Regulator may apply to the Court for an order under subsection (4).

262A(4) [Court orders]

If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:

(a) an order directing the person to comply with that term of the undertaking;

(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

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Division 4 - Investigations by Regulator

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SECTION 263 INVESTIGATIONS OF SUPERANNUATION ENTITIES, APPROVED SMSF AUDITORS AND THE CONDUCT OF CERTAIN AUDITS

263(1)

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If it appears to the Regulator that:

(a)

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a contravention of this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 may have occurred or be occurring in relation to a superannuation entity; or

(b) the financial position of a superannuation entity may be unsatisfactory; or

(c) (Repealed by No 13 of 2018)

(d)

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the trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund have refused or failed to give effect to a determination made under the AFCA scheme;

the Regulator may, by written notice to a trustee of the entity, tell the trustee that the Regulator proposes to conduct an investigation of the whole or a part of the affairs of the entity.

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263(1A)

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If it appears to the Regulator that a contravention of this Act or the regulations may have occurred or be occurring in relation to an approved SMSF auditor, the Regulator may, by written notice to the auditor, tell the auditor that the Regulator proposes to conduct an investigation of the whole or a part of the affairs of the auditor.

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263(1B)

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If it appears to the Regulator that a contravention of this Act or the regulations may have occurred or be occurring in relation to the conduct of an audit of a self managed superannuation fund, the Regulator may, by written notice to a person who conducted, or who is conducting, the audit, tell the person that the Regulator proposes to conduct an investigation of the whole or a part of the conduct of the audit.

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263(2)

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The following provisions of this Division apply:

(a) in relation to a superannuation entity if a notice is given under subsection (1) to a trustee of the entity;

(b) in relation to an approved SMSF auditor if a notice is given under subsection (1A) to the auditor;

(c) in relation to a person who conducted, or who is conducting, an audit of a self managed superannuation fund, if a notice is given under subsection (1B) to the person.

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263(3)

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To avoid doubt, this section applies to a superannuation entity, in the same way as this section applies to any other superannuation entity, if either of the following apply:

(a) the superannuation entity is wound up, dissolved or terminated;

(b) the trustee of the superannuation entity is or becomes:

(i) if the trustee is a body corporate - a Chapter 5 body corporate (within the meaning of the Corporations Act 2001); or

(ii) if the trustee is an individual - insolvent under administration.

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SECTION 264 POWER OF REGULATOR TO OBTAIN INFORMATION OR FREEZE ASSETS

264(1) Regulator may act to preserve values of interests.

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The Regulator may do any one or more of the things set out in subsections (2) to (4) if it appears to the Regulator that conduct that has been, is being, or is proposed to be, engaged in by a trustee or an investment manager of a superannuation entity is likely to:

(a) if the Regulator intends to do a thing set out in subsection (2) - adversely affect the values of the interests of beneficiaries; or

(b) otherwise - significantly adversely affect the values of the interests of the beneficiaries.

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264(2) [Required information or report specified in written notice]

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The Regulator may, by written notice given to a person who is a relevant person in relation to the entity, require the person, within a stated period, to give to the Regulator or to an authorised person such information, or a report on such matters, relating to the affairs of the entity as are set out in the notice.

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264(3) [Written directions to trustee]

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The Regulator may, by written notice given to a trustee, direct the trustee, or the trustees, of the entity, subject to such conditions (if any) as are stated in the notice:

(a) not to acquire assets on behalf of the entity; or

(b) not to dispose of, or otherwise deal, or deal in a particular way, in:

(i) any of the assets of the entity; or

(ii) any of the assets of the entity included in a specified class of assets; or

(iii) a specified asset or assets of the entity;

until the notice is revoked or for a period, or until the occurrence of an event, referred to in the notice.

Note:

For example, the Regulator may direct a trustee not to make any withdrawals from a bank account without prohibiting the making of deposits to the credit of the account.

View history note

264(3A) [Written directions to investment manager]

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The Regulator may, by written notice given to an investment manager of the entity, direct that person, subject to such conditions (if any) as are stated in the notice:

(a) not to acquire assets on behalf of the entity; or

(b) not to dispose of, or otherwise deal, or deal in a particular way, in:

(i) any of the assets of the entity; or

(ii) any of the assets of the entity included in a specified class of assets; or

(iii) a specified asset or assets of the entity;

until the notice is revoked or for a period, or until the occurrence of an event, referred to in the notice.

Note:

For example, the Regulator may direct an investment manager not to make any withdrawals from a bank account without prohibiting the making of deposits to the credit of the account.

View history note

264(4) [Directions to person other than trustee or investment manager]

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The Regulator may, by written notice given to a person (other than a trustee or an investment manager) who has possession, custody or control of an asset or assets of the entity, direct the person, subject to such conditions (if any) as are stated in the notice, not to dispose of, or otherwise deal, or deal in a particular way, in:

(a) if the person has possession, custody or control of a single asset - that asset; or

(b) if the person has possession, custody or control of 2 or more assets:

(i) any of those assets; or

(ii) any of those assets that are included in a specified class of assets; or

(iii) such of those assets as are identified in the notice;

until the notice is revoked or for a period, or until the occurrence of an event, referred to in the notice.

Note:

For example, the Regulator may direct a person not to make any withdrawals from a bank account without prohibiting the making of deposits to the credit of the account.

View history note

264(4A) [No removal of assets that are in Australia]

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To avoid any doubt, the power of the Regulator under subsection (3), (3A) or (4) to direct a person not to deal in a particular way in assets of an entity includes power to direct a person not to remove from Australia assets of the entity that are in Australia.

View history note

264(5) Effect of direction on validity of transactions.

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Subsection (3), (3A) or (4) does not affect the validity of a transaction entered into by a person in contravention of a notice given under that subsection.

View history note

264(6)
(Repealed by No 25 of 2008)

View history note

SECTION 265 INSPECTORS

265(1)

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The Regulator may, in writing, appoint a member of staff of the Regulator, or a member of staff of another person or body referred to in the definition of Regulator in subsection 10(1), to be an inspector for the purposes of the conduct of investigations under this Division in relation to:

(a) the affairs of superannuation entities and approved SMSF auditors; and

(b) the conduct of audits of self managed superannuation funds.

View history note

265(2)
The Regulator must cause to be issued to each person appointed under subsection (1) an identity card that sets out the name and appointment of the person and to which is attached a recent photograph of the person.

View history note

265(3)
A person who was appointed under subsection (1) must not, upon ceasing to be an inspector, fail, without reasonable excuse, to return to the Regulator the identity card issued to him or her under this section.

Penalty for a contravention of this subsection: One penalty unit.

View history note

265(4) [Strict liability]

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Subsection (3) 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.

View history note

SECTION 266 DELEGATION BY INSPECTOR

266(1) [Delegation of power]

An inspector may, by signed writing, delegate to a member of the staff of the Regulator any of the inspector's powers under this Part.

View history note

266(2) [Instrument of delegation]

A delegate must, on the request of a person in relation to whom the delegated powers are exercisable or of a person affected by the exercise of those powers, produce the instrument of delegation, or a copy of the instrument, for inspection.

266(3) [Inspector]

A reference in this Part to an inspector includes a reference to a delegate of an inspector.

SECTION 267

267 REGULATOR MAY EXERCISE POWERS OF INSPECTOR
The Regulator may exercise any of the powers of an inspector under this Part and, if he or she does so, then, for the purposes of the exercise of those powers by the Regulator, a reference in this Part to an inspector is taken to be a reference to the Regulator.

View history note

SECTION 268

268 INSPECTOR MAY ENTER PREMISES FOR PURPOSES OF AN INVESTIGATION

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If an inspector believes on reasonable grounds that it is necessary to enter premises for the purposes of an investigation of the whole or a part of the affairs of a superannuation entity or approved SMSF auditor, or the conduct of an audit of a self managed superannuation fund, the inspector may, at any reasonable time, enter the premises and:

(a) inspect any book found on the premises that relates to the affairs of the entity or auditor, or to the audit, or that he or she believes on reasonable grounds to relate to those affairs or that audit; and

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(b) make copies of, or take extracts from, any such book.

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SECTION 269

269 INSPECTOR MAY REQUIRE PRODUCTION OF BOOKS

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For the purposes of an investigation of the whole or a part of the affairs of a superannuation entity or approved SMSF auditor, or the conduct of an audit of a self managed superannuation fund, an inspector may, by written notice given to a person who:

(a) is a relevant person in relation to the entity, auditor or audit; or

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(b) the inspector believes on reasonable grounds has the custody or control of any books relating to those affairs or that audit;

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require the person to produce all or any of those books to the inspector.

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SECTION 270

270 POWERS OF INSPECTOR TO REQUIRE ASSISTANCE FROM, AND EXAMINE, CURRENT AND FORMER RELEVANT PERSONS AND OTHER PERSONS
An inspector may, by written notice given to a person:

(a) who is, or has been, a relevant person in relation to:

(i) a superannuation entity or approved SMSF auditor whose affairs or a part of whose affairs the Regulator is investigating; or

(ii) an audit of a self managed superannuation fund the conduct of which, or a part of the conduct of which, the Regulator is investigating; or

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(b) who the inspector, on reasonable grounds, suspects or believes can give information relevant to the investigation of that entity, auditor or audit;

View history reference

require the person to do either or both of the following:

(c) to give the inspector all reasonable assistance in connection with the investigation;

(d) to appear before the inspector for examination concerning matters relevant to the investigation.

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SECTION 271 APPLICATION FOR WARRANT TO SEIZE BOOKS NOT PRODUCED

271(1)
If an inspector has reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, books:

(a) whose production has been required under this Part; and

(b) that have not been produced in compliance with that requirement;

he or she may:

(c) lay before a magistrate an information or complaint on oath setting out those grounds; and

(d) apply for the issue of a warrant to search the premises for those books.

271(2)
On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

271(3)

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The reference in subsection (1) to an inspector does not include:

(a) an inspector that is appointed by ASIC; or

(b) ASIC, where ASIC is exercising the powers of an inspector under section 267.

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SECTION 272 GRANT OF WARRANT

272(1) Section applies if magistrate satisfied of certain things.

This section applies if, on an application under section 271, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular books:

(a) whose production has been required under this Part; and

(b) that have not been produced in compliance with that requirement.

272(2) Issue of warrant.

The magistrate may issue a warrant authorising:

(a) a member of the Australian Federal Police named in the warrant; or

(b) that member together with the inspector who applied for the issue of the warrant;

with such assistance, and by such force, as is necessary and reasonable, to do the acts set out in subsection (3).

272(3) Acts authorised by warrant.

The acts are:

(a) entering on or into the premises; and

(b) searching the premises; and

(c) breaking open and searching anything, whether a fixture or not, in or on the premises; and

(d) taking possession of, or securing against interference, books that appear to be any or all of those books.

272(4) Grounds for issuing warrant to be set out.

If the magistrate issues such a warrant, he or she must set out on the information or complaint laid before him or her under subsection 271(1) for the purposes of the application:

(a) which of the grounds set out in the information; and

(b) particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

272(5) Contents of warrant.

A warrant under this section must:

(a) specify the premises and books referred to in subsection (1); and

(b) state whether entry is authorised to be made at any time of the day or night or only during specified hours; and

(c) state that the warrant ceases to have effect on a specified day that is not more than 7 days after the day of issue of the warrant.

SECTION 273 POWERS IF BOOKS PRODUCED OR SEIZED

273(1) Section applies if books produced, seized etc.

This section applies if:

(a) books are produced to a person under a requirement made under this Part; or

(b) under a warrant issued under section 272, or Division 2 of Part IAA of the Crimes Act 1914, as applied under section 39D of the Australian Securities and Investments Commission Act 2001, a person:

(i) takes possession of books; or

(ii) secures books against interference; or

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(c) because of a previous application of subsection (8) of this section, books are delivered into a person's possession.

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273(1A)

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However, if paragraph (1)(b) applies because of the operation of section 39D of the Australian Securities and Investments Commission Act 2001, subsections (4), (5), (6), (7) and (8) do not apply.

View history note

273(2) Possession in (1)(a) case.

If paragraph (1)(a) applies, the person may take possession of any of the books.

273(3) Power to inspect etc.

The person may inspect, and may make copies of, or take extracts from, any of the books.

273(4) Power to use for proceedings.

The person may use, or permit the use of, any of the books for the purposes of a proceeding.

273(5) Retaining possession.

The person may retain possession of any of the books for so long as is necessary:

(a) for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or

(b) for the purposes of the investigation; or

(c) for a decision to be made about whether or not a proceeding to which the books concerned would be relevant should be begun; or

(d) for such a proceeding to be begun and carried on.

273(6) Claims or liens.

No-one is entitled, as against the person, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.

273(7) Right of inspection.

While the books are in the person's possession, the person must permit another person to inspect at all reasonable times such (if any) of the books as the other person would be entitled to inspect if they were not in the first-mentioned person's possession.

273(8) Delivery into possession of Regulator etc.

Unless subparagraph (1)(b)(ii) applies, the person may deliver any of the books into the possession of the Regulator or of a person authorised by the Regulator to receive them.

View history note

273(9) Explanation of matters relating to books.

If paragraph (1)(a) or (b) applies, the person, or a person into whose possession the person delivers any of the books under subsection (8), may require:

(a) if paragraph (1)(a) applies - a person who so produced any of the books; or

(b) in any case - a person who was a party to the compilation of any of the books;

to explain to the best of his or her knowledge and belief any matter about the compilation of any of the books or to which any of the books relate.

SECTION 274

274 POWERS IF BOOKS NOT PRODUCED
If a person fails to produce particular books in compliance with a requirement made by another person under this Part, the other person may require the first-mentioned person to state, to the best of his or her knowledge and belief:

(a) where the books may be found; or

(b) who last had possession, custody or control of the books and where that person may be found.

SECTION 275

275 POWER TO REQUIRE PERSON TO IDENTIFY PROPERTY OF SUPERANNUATION ENTITY
A person who has power under this Part to require another person to produce books relating to affairs of a superannuation entity may, whether or not that power is exercised, require the other person, so far as the other person can do so:

(a) to identify property of the entity; and

(b) to explain how a trustee or an investment manager of the entity has kept account of that property.

View history reference

View history note

Division 5 - Examinations

SECTION 276

276 APPLICATION OF DIVISION

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This Division applies if, pursuant to a requirement made under paragraph 270(d), a person (the examinee ) appears before an inspector.

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SECTION 277 REQUIREMENTS MADE OF AN EXAMINEE

277(1) [Examination on oath]

The inspector may examine the examinee on oath or affirmation and may, for that purpose:

(a) require the examinee either to take an oath or make an affirmation; and

(b) administer an oath or affirmation to the examinee.

277(2) [Form of oath or affirmation]

The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.

277(3) [Inspector may require answer]

The inspector may require the examinee to answer a question that is put to the examinee at the examination and is relevant to a matter that the Regulator is investigating, or is to investigate.

View history note

SECTION 278 EXAMINATION TO BE IN PRIVATE

278(1)
The examination is to take place in private and the inspector may give directions about who may be present during it, or during a part of it.

278(2)
A person must not be present at the examination unless he or she:

(a) is the inspector or the examinee; or

(b) is a member of the staff of the Regulator authorised by the Regulator to attend the examination; or

(c) is entitled to be present under:

(i) a direction under subsection (1); or

(ii) subsection 279(1).

View history note

278(3)

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A person who contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding 10 penalty units.

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 (2)(a), (b) and (c) (see subsection 13.3(3) of the Criminal Code).

View history note

SECTION 279 EXAMINEE'S LAWYER MAY ATTEND

279(1) [Rights of counsel]

The examinee's lawyer may be present at the examination and may, at such times during it as the inspector determines:

(a) address the inspector; and

(b) examine the examinee;

about matters about which the inspector has examined the examinee.

279(2) [Inspector's power]

If, in the inspector's opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires.

SECTION 280 RECORD OF EXAMINATION

280(1) [Written record]

The inspector must cause a written record to be made of statements made at the examination.

280(2) [Requirement by inspector]

The inspector may require the examinee to read the written record, or to have it read to him or her, and may require him or her to sign it.

280(3) [Examinee's copy]

The inspector must give to the examinee a copy of the written record, without charge, but subject to such conditions (if any) as the inspector imposes.

SECTION 281 GIVING COPIES OF RECORD TO OTHER PERSONS

281(1) Copies for proceedings.

If a person's lawyer satisfies the Regulator that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related, the Regulator may give the lawyer:

(a) a copy of a written record of the examination; or

(b) a copy of that record together with a copy of any related book.

View history note

281(2) Copies to be used only for proceedings.

If the Regulator gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, must not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding, intentionally:

(a) use the copy or a copy of it; or

(b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents.

Penalty: Imprisonment for 6 months.

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SECTION 282 COPIES GIVEN SUBJECT TO CONDITIONS

282(1)
If a copy is given to a person under subsection 280(3) subject to conditions, the person, and any other person who has possession, custody or control of the copy or a copy of it, must comply with the conditions.

282(2)

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A person who intentionally or recklessly contravenes this section commits an offence punishable on conviction by imprisonment for a period not exceeding 6 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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SECTION 283 RECORD TO ACCOMPANY REPORT

283(1) [Report of inspector]

When a report about the investigation is prepared under section 284, each record (if any) of the examination is to accompany the report.

283(2) [Report about other investigation]

If:

(a) in the Regulator's opinion, a statement made at an examination is relevant to any other investigation under Division 4; and

(b) a record of the statement was made under section 280; and

(c) a report about the other investigation is prepared under section 284;

a copy of the record must accompany the report.

View history note

Division 6 - Reports

SECTION 284 REPORT OF INSPECTOR

284(1) [Investigation report]

An inspector must, on completion or termination of an investigation, prepare a report about the investigation.

284(2) [Contents of report]

The report must set out:

(a) the inspector's findings about the matters investigated; and

(b) the evidence and other material on which these findings were based; and

(c) such other matters relating to or arising out of, the investigation as the inspector thinks fit.

284(3) [Copies of report]

The Regulator:

(a) must give a copy of the report to:

(i) each trustee of the superannuation entity to which the investigation related; or

(ii) the approved SMSF auditor to whom the investigation related; or

(iii) the person who conducted, or is conducting, the audit to which the investigation related; and

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(b) if the report, or a part of the report, relates to the affairs of another person to a material extent - may, on the Regulator's own initiative or at the request of that person, give a copy of the report or part of that report, to that person; and

(c) if the report, or a part of the report, relates to a contravention of a law of the Commonwealth, of a State or of a Territory - may give a copy of the whole or a part of the report to:

(i) the Australian Federal Police; or

(ii) the Chief Executive Officer of the Australian Crime Commission; or

(iii) the Director of Public Prosecutions; or

(iv) a prescribed agency.

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View history note

284(4) [Copies for APRA and ASIC]

APRA and ASIC must give each other a copy of any reports they prepare under this section.

View history note

284(5)

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ASIC and the Commissioner of Taxation must give each other a copy of any report they prepare under this section in relation to:

(a) a self managed superannuation fund; or

(b) an approved SMSF auditor; or

(c) a person who conducted, or is conducting, an audit of a self managed superannuation fund.

View history note

Division 7 - Offences

SECTION 285

285 COMPLIANCE WITH REQUIREMENTS MADE UNDER THIS ACT

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A person must not intentionally or recklessly refuse or fail to comply with a requirement of the Regulator, an authorised person or an inspector under this Act.

Penalty:

(a) in respect of a requirement under subsection 264(3), (3A) or (4) - imprisonment for 2 years; or

(b) otherwise - 30 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

[ CCH Note: S 285 will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1430, by inserting "the Registrar," after "Regulator,", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]

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SECTION 286

286 CONCEALING BOOKS RELEVANT TO INVESTIGATION

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A person who knows that the Regulator is investigating, or is about to investigate, a matter must not, with intent to delay or obstruct the investigation or proposed investigation:

(a) in any case - conceal, destroy, mutilate or alter a book relating to that matter; or

(b) if a book relating to that matter is in a particular State or Territory - take or send the book out of that State or Territory or out of Australia.

Penalty: Imprisonment for 2 years.

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SECTION 287 SELF-INCRIMINATION

287(1) Self-incrimination not a reasonable excuse.

For the purposes of this Part, it is not a reasonable excuse for a person to refuse or fail:

(a) to give information; or

(b) to sign a record; or

(c) to produce a book;

in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty.

287(2) Self-incrimination as grounds for inadmissibility.

Subsection (3) applies if:

(a) before:

(i) making an oral statement giving information; or

(ii) signing a record;

(iii) (Repealed by No 160 of 2000)

as required under this Part, a person claims that the statement or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and

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(b) the statement or signing the record, as the case may be, might in fact tend to incriminate the person or make the person liable to a penalty.

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287(2A) [Requirements made after 31 May 1999]

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Subsection (2) does not apply to a person that is a body corporate if the claim relates to a requirement made after the commencement of this subsection.

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287(3) Inadmissibility of statements etc.

Subject to subsection (4), none of the following:

(a) the statement;

(b) the fact that the person has signed the record;

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(c) (Repealed by No 160 of 2000)

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is admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty.

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287(4) Exceptions.

Subsection (3) does not apply to admissibility in proceedings in respect of:

(a) in the case of the making of a statement - the falsity of the statement; or

(b) in the case of the signing of a record - the falsity of any statement contained in the record.

287(5)

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This section does not apply to a person who is a contributing employer if the requirement mentioned in subsection (1) relates to the obligations of the contributing employer under Part 3B.

View history note

SECTION 288 LEGAL PROFESSIONAL PRIVILEGE

288(1)
This section applies if:

(a) under this Act, a person requires a lawyer:

(i) to give information; or

(ii) to produce a book; and

(b) giving the information would involve disclosing, or the book contains, as the case may be, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.

288(2)
The lawyer is entitled to refuse to comply with the requirement unless:

(a) if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is under administration or is being wound up - the administrator or the liquidator of the body; or

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(b) otherwise - the person to whom, or by or on behalf of whom, the communication was made;

consents to the lawyer complying with the requirement.

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288(3)
If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:

(a) if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made - that name and address; and

(b) if subparagraph (1)(a)(i) applies and the communication was made in writing - sufficient particulars to identify the document containing the communication; and

(c) if subparagraph (1)(a)(ii) applies - sufficient particulars to identify the book, or the part of the book, containing the communication.

288(4)

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A person who intentionally or recklessly contravenes this section commits an offence punishable on conviction by a fine not exceeding 30 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

SECTION 289 POWERS OF COURT WHERE NON-COMPLIANCE WITH THIS ACT

289(1) [Application of section]

This section applies if the Regulator is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under this Act.

View history note

289(2) [Regulator's certificate]

The Regulator may by writing certify the failure to the Court.

View history note

289(3) [Court inquiry]

If the Regulator does so, the Court may inquire into the case and may order the person to comply with the requirement as specified in the order.

View history note

Division 8 - Evidentiary use of certain material

SECTION 290 STATEMENTS MADE AT AN EXAMINATION: PROCEEDINGS AGAINST EXAMINEE

290(1) Admissibility of statements made at examination.

Subject to this section, a statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding.

290(2) Self-incrimination exception.

The statement is not admissible if:

(a) the proceeding is:

(i) a criminal proceeding; or

(ii) a proceeding for the imposition of a penalty;

other than a proceeding in respect of the falsity of the statement; and

(b) the person is an individual who, before making the statement, claimed that it might tend to incriminate him or her or make him or her liable to a penalty.

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View history note

290(3) Irrelevant statement exception.

The statement is not admissible if it is not relevant to the proceeding and the person objects to the admission of evidence of the statement.

290(4) Related statement exception.

The statement (the subject statement ) is not admissible if:

(a) it is qualified or explained by some other statement made at the examination; and

(b) evidence of the other statement is not tendered in the proceeding; and

(c) the person objects to the admission of evidence of the subject statement.

290(5) Legal professional privilege exception.

The statement is not admissible if:

(a) it discloses matter in respect of which the person could claim legal professional privilege in the proceeding if subsection (1) did not apply in relation to the statement; and

(b) the person objects to the admission of evidence of the statement.

290(6) Joint proceedings.

Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.

290(7) Record is prima facie evidence.

If a written record of an examination of a person is signed by the person under subsection 280(2) or authenticated in any other prescribed manner, the record is, in a proceeding, prima facie evidence of the statements it records.

290(8) Admissibility of other evidence.

This Part does not limit or affect the admissibility in the proceeding of other evidence to statements made at the examination.

SECTION 291 STATEMENTS MADE AT AN EXAMINATION: OTHER PROCEEDINGS

291(1) Admissibility of absent witness evidence.

If direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter in accordance with subsection (2).

291(2) Requirement for admissibility.

The statement is admissible:

(a) if it appears to the court or tribunal that:

(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or

(ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or

(iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or

(b) if it does not so appear to the court or tribunal - unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.

SECTION 292 WEIGHT OF EVIDENCE ADMITTED UNDER SECTION 291

292(1) [Application of section]

This section applies if evidence of a statement made by a person at an examination of the person is admitted under section 291 in a proceeding.

292(2) [Weight of evidence]

In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:

(a) how long after the matters to which it related the statement was made; and

(b) any reason the person may have had for concealing or misrepresenting a material matter; and

(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.

292(3) [Admissible evidence]

If the person is not called as a witness in the proceeding:

(a) evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and

(b) evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.

292(4) [Inadmissible evidence]

However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.

SECTION 293 OBJECTION TO ADMISSION OF STATEMENTS MADE AT EXAMINATION

293(1) Notice of intention to apply to admit evidence and statements.

A party (the adducing party ) to a proceeding may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:

(a) will apply to have admitted in evidence in the proceeding specified statements made at an examination; and

(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.

293(2) Notice to set out etc. statements.

A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.

293(3) Notice of objection.

Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:

(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and

(b) specifying, in relation to each of those statements, the grounds of objection.

293(4) Extension of objection period.

The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.

293(5) Notice etc. to be given to court or tribunal.

On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of:

(a) the notice under subsection (1) and any writing that subsection (2) requires to accompany that notice; and

(b) the notice under subsection (3).

293(6) Action by court or tribunal.

If subsection (5) is complied with, the court or tribunal may either:

(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or

(b) defer determination of the objections until the hearing.

293(7) Right to object to admission of statement.

If a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding unless:

(a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or

(b) the court or tribunal gives the other party leave to object to the statement being so admitted.

SECTION 294 COPIES OF, OR EXTRACTS FROM, CERTAIN BOOKS

294(1)

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A copy of, or an extract from, a book relating to:

(a) affairs of a superannuation entity or approved SMSF auditor; or

(b) conduct of an audit of a self managed superannuation fund;

is admissible in evidence in a proceeding as if the copy were the original book, or the extract were the relevant part of the original book, as the case may be, whether or not the copy or extract was made under section 273.

View history note

294(2) [Inadmissibility of copies]

A copy of, or an extract from, a book is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book, or of the relevant part of the book, as the case may be.

294(3) [Evidence]

For the purposes of subsection (2), a person who has compared:

(a) a copy of a book with the book; or

(b) an extract from a book with the relevant part of the book;

may give evidence, either orally or by an affidavit or statutory declaration, that the copy or extract is a true copy of the book or relevant part, as the case may be.

SECTION 295

295 REPORT UNDER DIVISION 6
Subject to section 296, if a copy of a report under Division 6 purports to be certified by the Regulator as a true copy of such a report, the copy is admissible in a proceeding (other than a criminal proceeding) as prima facie evidence of any facts or matters that the report states an inspector to have found to exist.

View history note

SECTION 296 EXCEPTIONS TO ADMISSIBILITY OF REPORT

296(1) [Application of section]

This section applies if a party to a proceeding tenders a copy of a report as evidence against another party.

296(2) [Requirements for admissibility]

The copy is not admissible under section 295 in the proceeding as evidence against the other party unless the court or tribunal is satisfied that:

(a) a copy of the report has been given to the other party; and

(b) the other party, and the other party's lawyer, have had a reasonable opportunity to examine that copy and to take its contents into account in preparing the other party's case.

296(3) [Application to cross-examine]

Before or after the copy referred to in subsection (1) is admitted in evidence, the other party may apply to cross-examine, in relation to the report, a specified person who, or 2 or more specified persons each of whom:

(a) was concerned in preparing the report or making a finding about a fact or matter that the report states the inspector to have found to exist; or

(b) whether or not pursuant to a requirement made under this Part, gave information, or produced a book, on the basis of which, or on the basis of matters including which, such a finding was made.

296(4) [Cross-examination to be allowed]

The court or tribunal must grant an application made under subsection (3) unless it considers that, in all the circumstances, it is not appropriate to do so.

296(5) [Inadmissibility of report]

If:

(a) the court or tribunal grants an application or applications made under subsection (3); and

(b) a person to whom the application or any of the applications relates, or 2 or more such persons, is or are unavailable, or does not or do not attend, to be cross-examined in relation to the report; and

(c) the court or tribunal is of the opinion that to admit the copy under section 295 in the proceeding as evidence against the other party without the other party having the opportunity so to cross-examine the person or persons would unfairly prejudice the other party;

the court or tribunal must refuse so to admit the copy, or must treat the copy as not having been so admitted, as the case requires.

SECTION 297

297 MATERIAL OTHERWISE ADMISSIBLE
Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.

Division 9 - Miscellaneous

SECTION 298

298 REGULATOR MAY CAUSE CIVIL PROCEEDING TO BE BEGUN
If, as a result of an investigation or from a record of an examination (being an investigation or examination conducted under this Part), it appears to the Regulator to be in the public interest for a person to begin and carry on a proceeding for:

(a) the recovery of damages for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the investigation or examination related; or

(b) recovery of property of the person;

the Regulator:

(c) if the person is a body corporate - may cause; or

(d) otherwise - may, with the person's written consent, cause:

such a proceeding to be begun and carried on in the person's name.

View history note

SECTION 298A AUTHORISATION OF MEMBERS OF STAFF

298A(1)

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The Regulator may authorise in writing a member of staff of the Regulator, or a member of staff of another person or body referred to in the definition of Regulator in subsection 10(1), for the purposes of a specified provision of this Act.

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298A(2)
The authorisation may be restricted to a particular function or power under the provision.

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SECTION 299

299 PERSON COMPLYING WITH REQUIREMENT NOT TO INCUR LIABILITY TO ANOTHER PERSON
A person who complies with a requirement made of the person under this Part does not incur any liability to any other person merely because of that compliance.

PART 25A - TAX FILE NUMBERS

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Division 1 - Quotation of employee's tax file number

SECTION 299A

299A EMPLOYEE MAY QUOTE TO EMPLOYER

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An employee may quote his or her tax file number to his or her employer in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

Note:

Section 299P sets out the method of quoting.

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SECTION 299B

299B EMPLOYER MAY INFORM TRUSTEE OF TAX FILE NUMBER

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If:

(a) either:

(i) before the commencement of this section, an employer made a contribution to an eligible superannuation entity or a regulated exempt public sector superannuation scheme for the benefit of an employee; or

(ii) after the commencement of this section, an employer makes such a contribution; and

(b) after the commencement of this section, the employee quotes or first quotes his or her tax file number to the employer in connection with the operation or the possible future operation of this Act and the other Superannuation Acts;

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the employer may inform a trustee of the entity or scheme, as the case may be, of the employee's tax file number.

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SECTION 299C EMPLOYER MUST INFORM TRUSTEE OF TAX FILE NUMBER

299C(1)

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If:

(a) an employee:

(i) quotes or first quotes his or her tax file number after the commencement of this section to his or her employer in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; or

(ii) quotes or first quotes his or her tax file number on or after 1 July 2007 to his or her employer in connection with the operation of Division 3 of Part VA of the Income Tax Assessment Act 1936; and

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(b) after the employee quotes or first quotes the tax file number, the employer makes a contribution to an eligible superannuation entity for the benefit of the employee; and

(c) the employer has not previously informed a trustee of the entity of the employee's tax file number;

the employer must inform a trustee of the entity of the employee's tax file number before the required time (see subsection (2)).

Note:

Division 3 of Part VA of the Income Tax Assessment Act 1936 deals with quotation of tax file numbers by recipients of eligible PAYG payments.

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299C(2)
The required time is:

(a) if the quotation or first quotation of the tax file number takes place more than 14 days before the employer makes the contribution - the end of the day on which the employer makes the contribution; or

(b) in any other case - the end of the 14th day after the day on which the quotation or first quotation of the tax file number takes place.

299C(3)

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The employer commits an offence if the employer contravenes subsection (1). This is an offence of strict liability.

Penalty: 10 penalty units.

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.

View history note

299C(4)

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A disclosure of the employee's tax file number to the employer under section 202CG of the Income Tax Assessment Act 1936 is taken, for the purposes of this section, to be a quotation of the number by the employee to his or her employer in connection with the operation of Division 3 of Part VA of that Act.

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SECTION 299CA USE OF TAX FILE NUMBER TO VALIDATE INFORMATION

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299CA(1)
This section applies if, after the commencement of this section, an employee:

(a) quotes his or her tax file number to his or her employer in connection with the operation, or the possible future operation, of this Act and the other Superannuation Acts; or

(b) quotes his or her tax file number to his or her employer in connection with the operation of Division 3 of Part VA of the Income Tax Assessment Act 1936.

Note:

Division 3 of Part VA of the Income Tax Assessment Act 1936 deals with quotation of tax file numbers by recipients of eligible PAYG payments.

299CA(2)
The employer may use the tax file number in a manner connecting it with the person's identity for the purpose of asking the Commissioner of Taxation to validate information about the person under section 299TE.

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Division 2 - Quotation, use and transfer of beneficiary's tax file number

SECTION 299D

299D ELIGIBLE SUPERANNUATION ENTITY OR REGULATED EXEMPT PUBLIC SECTOR SUPERANNUATION SCHEME BENEFICIARY, OR APPLICANT, MAY QUOTE TAX FILE NUMBER

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A beneficiary, or an applicant to become a beneficiary, of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme may quote his or her tax file number to a trustee of the entity or scheme in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

Note:

Section 299P sets out the method of quoting.

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SECTION 299E TRUSTEE MAY REQUEST BENEFICIARY'S OR APPLICANT'S TAX FILE NUMBER

299E(1)

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A trustee of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme may, at any time, request, in a manner approved by the Regulator, a beneficiary, or an applicant to become a beneficiary, of the entity or scheme to quote his or her tax file number to a trustee of the entity or scheme in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

[ CCH Note: For the purposes of s 299E(1), APRA has made Superannuation Industry (Supervision) Tax File Number approval No 1 of 2017 (F2017L01262), which revokes and replaces Superannuation Industry (Supervision) Tax File Number approval No 1 of 2007 (F2007L02023), effective 1 October 2017.]

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299E(2) No obligation to quote tax file number.

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If a trustee requests a beneficiary or applicant to quote his or her tax file number to a trustee, the beneficiary or applicant is not obliged to comply with the request.

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SECTION 299F TRUSTEE MUST REQUEST PERSON WHO IS BENEFICIARY AT COMMENCEMENT TO QUOTE TAX FILE NUMBER

299F(1)

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Subject to subsection (3), if:

(a) a person is a beneficiary of an eligible superannuation entity at the commencement of this section; and

(b) the person is not taken by section 299S or 299T to have quoted his or her tax file number to a trustee of the entity at or before that commencement;

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each trustee must ensure that, before the required time (see subsection (2)) in relation to the beneficiary, a request is made, in a manner approved by the Regulator, to the person to quote his or her tax file number to a trustee of the entity in connection with the operation or the possible future operation of this Act or, if the request was not made before the commencement of Schedule 3 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997, the operation or the possible future operation of this Act and the Surcharge Acts.

[ CCH Note: APRA revoked "Approval of Manner of Requesting and Informing of Tax File Numbers" under s 299E(1), 299F(1), 299G(1) and 299P issued by the former ISC on 19 June 1997 except to the extent that it applies to self managed superannuation funds.]

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299F(2) Required time.

The required time in relation to a beneficiary is the end of the 7th day after the day that is the starting day in relation to the beneficiary.

299F(3) Exception.

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A trustee of the entity is not required to ensure that a request is made if the person has already quoted his or her tax file number to a trustee of the entity in connection with the operation or the possible future operation of:

(a) if the quotation was given before the commencement of Schedule 3 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997 - this Act; or

(b) otherwise - this Act and the Surcharge Acts.

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299F(4)

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A trustee commits an offence if the trustee contravenes subsection (1).

Penalty: 100 penalty units.

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299F(4A)

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A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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299F(5) No obligation to quote tax file number.

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If a person requests another person to quote his or her tax file number under this section, the other person is not obliged to comply with the request.

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299F(6) Starting day - trustee required to give information to beneficiary.

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The starting day, in relation to a beneficiary of an eligible superannuation entity a trustee of which is required under Subdivision 2.4.2 or 2.4.3 of Division 2.4 of Part 2 of the Superannuation Industry (Supervision) Regulations to give information to the beneficiary, is the earlier of:

(a) the day referred to in whichever of the following subparagraphs is applicable:

(i) if the trustee chooses to act under this subparagraph in relation to the beneficiary - the day on which the information referred to in Subdivision 2.4.2 of Division 2.4 of Part 2 of those Regulations is first given to the beneficiary on or after the day on which this section commences;

(ii) if the trustee chooses to act under this subparagraph in relation to the beneficiary - the day on which the information referred to in Subdivision 2.4.3 of Division 2.4 of Part 2 of those Regulations is first given to the beneficiary on or after the day on which this section commences;

(iii) if the trustee does not choose to act under subparagraph (i) or (ii) in relation to the beneficiary - the day on which information referred to in either of those Subdivisions is first given to the beneficiary on or after the day on which this section commences; or

(b) the last day of the period of one year beginning on the day on which this section commences.

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299F(7) Starting day - trustee not required to give information to beneficiary.

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The starting day, in relation to a beneficiary of an eligible superannuation entity a trustee of which is not required, under Subdivision 2.4.2 or 2.4.3 of Division 2.4 of Part 2 of the Superannuation Industry (Supervision) Regulations to give information to the beneficiary, is the day on which this section commences.

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SECTION 299G TRUSTEE MUST REQUEST PERSON BECOMING BENEFICIARY AFTER COMMENCEMENT TO QUOTE TAX FILE NUMBER

299G(1)

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Subject to subsection (3), if:

(a) a person becomes a beneficiary of an eligible superannuation entity after the commencement of this section; and

(b) the person has not quoted his or her tax file number to a trustee of the entity in connection with the operation or the possible future operation of this Act, or of this Act and the other Superannuation Acts, by the time he or she becomes a beneficiary;

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each trustee must ensure that, before the required time (see subsection (2)), a request is made, in a manner approved by the Regulator, to the person to quote his or her tax file number to a trustee of the entity in connection with the operation or the possible future operation of this Act or, if the request was not made before the commencement of Schedule 3 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997, the operation or possible future operation of this Act and the other Superannuation Acts.

[ CCH Note: For the purposes of s 299G(1), APRA has made Superannuation Industry (Supervision) Tax File Number approval No 1 of 2017 (F2017L01262), which revokes and replaces Superannuation Industry (Supervision) Tax File Number approval No 1 of 2007 (F2007L02023), effective 1 October 2017.]

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299G(2) Required time.

The required time is the end of the 30th day after the day on which the person becomes a beneficiary.

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299G(3) Exception.

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(a) if the quotation was given before the commencement of Schedule 3 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997 - this Act; or

(b) otherwise - this Act and the other Superannuation Acts.

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299G(4)

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A trustee commits an offence if the trustee contravenes subsection (1).

Penalty: 100 penalty units.

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299G(4A)

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A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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299G(5) No obligation to quote tax file number.

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If a person requests another person to quote his or her tax file number under this section, the other person is not obliged to comply with the request.

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SECTION 299H USE OF TAX FILE NUMBER FOR CERTAIN PURPOSES - BENEFICIARIES OF ELIGIBLE SUPERANNUATION ENTITIES

299H(1)

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This section applies if a person who is a beneficiary of an eligible superannuation entity quotes his or her tax file number to a trustee of the entity in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

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299H(2) Obligation to record tax file number.

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If the trustee, or the trustees, of the entity do not already have a record of the tax file number, as soon as is reasonably practicable after the quotation, the trustee to whom the quotation is made must make a record of the number.

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299H(3) Obligation to retain and later destroy tax file number.

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Each trustee of the entity must ensure that:

(a) the record is retained until the person ceases to be a beneficiary of the entity; and

(b) the record is destroyed as soon as is reasonably practicable after the person ceases to be a beneficiary of the entity.

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299H(4)
(Repealed by No 41 of 2011)

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299H(5)
(Repealed by No 41 of 2011)

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299H(6) Offences.

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A trustee of the entity commits an offence if a requirement of subsection (2) or (3) is contravened by the trustee of the entity.

Penalty: 100 penalty units.

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299H(7)

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A trustee of the entity commits an offence if a requirement of subsection (2) or (3) is contravened by the trustee of the entity. This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 299J USE OF TAX FILE NUMBER FOR CERTAIN PURPOSES - BENEFICIARIES OF REGULATED EXEMPT PUBLIC SECTOR SUPERANNUATION SCHEME

299J(1)

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This section applies if a person who is a beneficiary of a regulated exempt public sector superannuation scheme quotes his or her tax file number to a trustee of the scheme in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

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299J(2) Trustee may record tax file number.

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If the trustee, or the trustees, do not already have a record of the tax file number, a trustee of the scheme may make a record of it.

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299J(3) Obligation to retain and later destroy tax file number.

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Each trustee of the scheme must ensure that:

(a) the record is retained until the person ceases to be a beneficiary of the scheme; and

(b) the record is destroyed as soon as is reasonably practicable after the person ceases to be a beneficiary of the scheme.

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299J(4)
(Repealed by No 41 of 2011)

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299J(5)
(Repealed by No 41 of 2011)

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299J(6) Offences.

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A trustee of the scheme commits an offence if a requirement of subsection (3) is contravened by the trustee.

Penalty: 100 penalty units.

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299J(7)

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A trustee of the scheme commits an offence if a requirement of subsection (3) is contravened by the trustee. This is an offence of strict liability.

Penalty: 50 penalty units.

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.

View history note

SECTION 299K USE OF TAX FILE NUMBER FOR CERTAIN PURPOSES - APPLICANTS TO BECOME BENEFICIARIES OF ELIGIBLE SUPERANNUATION ENTITIES

299K(1) [Application of section]

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This section applies if a person who is an applicant to become a beneficiary of an eligible superannuation entity quotes his or her tax file number to a trustee of the entity in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

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299K(2) Obligation to record tax file number.

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299K(3) Obligation to retain and later destroy tax file number.

Each trustee of the entity must ensure that:

(a) the record is retained until the time (the last retention time ) at which:

(i) if the person becomes a beneficiary of the entity - the person ceases to be a beneficiary of the entity; or

(ii) if not - the person ceases to be an applicant; and

(b) the record is destroyed as soon as is reasonably practicable after the last retention time.

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299K(4)
(Repealed by No 41 of 2011)

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299K(5)
(Repealed by No 41 of 2011)

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299K(6) Offences.

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A trustee of the entity commits an offence if a requirement of subsection (2) or (3) is contravened by the trustee.

Penalty: 100 penalty units.

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299K(7) [Strict liability]

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A trustee of the entity commits an offence if a requirement of subsection (2) or (3) is contravened by the trustee. This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 299L USE OF TAX FILE NUMBER FOR CERTAIN PURPOSES - APPLICANTS TO BECOME BENEFICIARIES OF REGULATED EXEMPT PUBLIC SECTOR SUPERANNUATION SCHEMES

299L(1)

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This section applies if a person who is an applicant to become a beneficiary of a regulated exempt public sector superannuation scheme quotes his or her tax file number to a trustee of the scheme in connection with the operation or the possible future operation of thisAct and the other Superannuation Acts.

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299L(2) Trustee may record tax file number.

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If the trustee, or the trustees, do not already have a record of the tax file number, a trustee of the scheme may make a record of it.

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299L(3) Obligation to retain and later destroy tax file number.

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Each trustee of the scheme must ensure that:

(a) the record is retained until the time (the last retention time ) at which:

(i) if the person becomes a beneficiary of the scheme - the person ceases to be a beneficiary of the scheme; or

(ii) if not - the person ceases to be an applicant; and

(b) the record is destroyed as soon as is reasonably practicable after the last retention time.

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299L(4)
(Repealed by No 41 of 2011)

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299L(5)
(Repealed by No 41 of 2011)

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299L(6) Offences.

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A trustee of the scheme commits an offence if a requirement of subsection (3) is contravened by the trustee.

Penalty: 100 penalty units.

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299L(7)

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A trustee of the scheme commits an offence if a requirement of subsection (3) is contravened by the trustee. This is an offence of strict liability.

Penalty: 50 penalty units.

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.

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SECTION 299LA USE OF TAX FILE NUMBER TO LOCATE AMOUNTS OR FOR CONSOLIDATION

View history reference

299LA(1)
This section applies if:

(a) a beneficiary of an eligible superannuation entity, or of a regulated exempt public sector superannuation scheme; or

(b) an applicant to become such a beneficiary;

quotes his or her tax file number to a trustee of the entity or scheme in connection with the operation, or the possible future operation, of this Act and the other Superannuation Acts.

299LA(2)

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A trustee of an eligible superannuation entity, or of a regulated exempt public sector superannuation scheme, may, subject to any conditions contained in the regulations, use tax file numbers quoted as mentioned in subsection (1):

(a) in order to locate, in the records or accounts of the entity or scheme, amounts held for the benefit of persons; or

(b) in order to facilitate the consolidation of any of the following in relation to a particular person:

(i) RSAs provided by one or more RSA providers and held by the person;

(ii) interests of the person in eligible superannuation entities or regulated exempt public sector superannuation schemes.

Note:

Sections 8WA and 8WB of the Taxation Administration Act 1953 contain offences for unauthorised use etc. of tax file numbers.

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299LA(2A)

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Without limiting subsection (2), regulations made for the purposes of that subsection may contain conditions relating to:

(a) a person consenting to use of a tax file number; or

(b) procedures that must be followed in a consolidation mentioned in paragraph (2)(b), including procedures to safeguard the integrity of the consolidation; or

(c) a trustee disclosing tax file numbers to another trustee, or to an RSA provider, in order to facilitate such a consolidation.

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299LA(3)

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This section does not affect the operation of Australian Privacy Principle 9.

Note 1:

Australian Privacy Principle 9 prohibits a trustee adopting a tax file number of an individual as the trustee's own identifier of the individual, such as by using the tax file number as an account or membership number.

Note 2:

See also Division 4 of Part III of the Privacy Act 1988 and the rules issued under that Division concerning the collection, storage, use and security of tax file number information.

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SECTION 299LB USE OF TAX FILE NUMBER TO VALIDATE INFORMATION

299LB(1)
This section applies if a person who is a beneficiary of an eligible superannuation entity, or of a regulated exempt public sector superannuation scheme, or an applicant to become such a beneficiary, quotes his or her tax file number to a trustee of the entity or scheme in connection with the operation, or the possible future operation, of this Act and the other Superannuation Acts.

299LB(2)
The trustee may use the tax file number in a manner connecting it with the person's identity for the purpose of asking the Commissioner of Taxation to validate information about the person under section 299TD.

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SECTION 299M TRUSTEE OF ELIGIBLE SUPERANNUATION ENTITY MUST INFORM RSA PROVIDER OR OTHER TRUSTEE OF TAX FILE NUMBER FOR CERTAIN PURPOSES

299M(1)
This section applies if:

(a) there is an amount in an eligible superannuation entity for the benefit of a beneficiary; and

(b) the beneficiary has quoted (whether as a beneficiary or applicant) his or her tax file number to a trustee of the entity in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

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299M(2) Transfer of benefits to an RSA, another eligible superannuation entity or to a regulated exempt public sector superannuation scheme.

View history reference

Subject to subsection (3), if a trustee of the entity transfers any of the amount to an RSA, to another eligible superannuation entity or to a regulated exempt public sector superannuation scheme for the benefit of the beneficiary, the trustee must, at the time of the transfer and in the manner approved by the Regulator, inform the RSA provider or a trustee of the other eligible superannuation entity or of the regulated exempt public sector superannuation scheme of the beneficiary's tax file number.

[ CCH Note: For the purposes of s 299M(2), APRA has made Superannuation Industry (Supervision) Tax File Number approval No 1 of 2017 (F2017L01262), which revokes and replaces Superannuation Industry (Supervision) Tax File Number approval No 1 of 2007 (F2007L02023), effective 1 October 2017.]

View history note

299M(3) Exception.

View history reference

Subsection (2) does not apply where an amount is transferred to an RSA, to another eligible superannuation entity or to a regulated exempt public superannuation scheme if, before the transfer, the beneficiary gives the trustee a written statement requesting the trustee not to inform any RSA provider or any other trustee of the beneficiary's tax file number.

View history note

299M(4)

View history reference

A trustee commits an offence if the trustee contravenes subsection (2).

Penalty: 100 penalty units.

View history note

299M(5)

View history reference

A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

View history note

SECTION 299N TRUSTEE OF REGULATED EXEMPT PUBLIC SECTOR SUPERANNUATION SCHEME MAY INFORM RSA PROVIDER OR OTHER TRUSTEE OF TAX FILE NUMBER FOR CERTAIN PURPOSES

299N(1)
This section applies if:

(a) there is an amount in a regulated exempt public sector superannuation scheme for the benefit of a beneficiary; and

(b) the beneficiary has quoted (whether as a beneficiary or applicant) his or her tax file number to a trustee of the scheme in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

View history reference

View history note

299N(2) Transfer of benefits to an RSA another regulated exempt public sector superannuation scheme or to an eligible superannuation entity.

View history reference

Subject to subsection (3), if a trustee of the scheme transfers any of the amount to an RSA, to another regulated exempt public sector superannuation scheme or to an eligible superannuation entity for the benefit of the beneficiary, the trustee may inform the RSA provider or a trustee of the other regulated exempt public sector superannuation scheme or of the eligible superannuation entity in the manner approved by the Regulator of the beneficiary's tax file number.

[ CCH Note: For the purposes of s 299N(2), APRA has made Superannuation Industry (Supervision) Tax File Number approval No 1 of 2017 (F2017L01262), which revokes and replaces Superannuation Industry (Supervision) Tax File Number approval No 1 of 2007 (F2007L02023), effective 1 October 2017.]

View history note

299N(3) Exception.

View history reference

Subsection (2) does not apply where an amount is transferred to an RSA to another regulated exempt public sector superannuation scheme or to an eligible superannuation entity if, before the transfer, the beneficiary gives the trustee a written statement requesting the trustee not to inform any RSA provider or any other trustee of the beneficiary's tax file number.

View history note

299N(4) Offence.

View history reference

If:

(a) a trustee (the first trustee ) of a regulated exempt public sector superannuation scheme (the first scheme ) intentionally informs an RSA provider or a trustee (the second trustee ) of another regulated exempt public sector superannuation scheme or of an eligible superannuation entity of the tax file number of a beneficiary of the first scheme; and

View history reference

(b) the first trustee knows that, because of subsection (3), the trustee is not empowered by subsection (2) to inform the second trustee or the RSA provider of that number;

View history reference

the first trustee commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

View history note

SECTION 299NA PORTABILITY FORMS

View history reference

Requesting tax file numbers

299NA(1)
The Commissioner of Taxation may request a beneficiary of:

(a) a regulated superannuation fund; or

(b) an approved deposit fund;

to quote the beneficiary's tax file number to the Commissioner in connection with the operation, or the possible future operation, of a scheme prescribed for the purposes of section 34A (Portability forms).

299NA(2)
The beneficiary is not obliged to comply with the request, but the regulations made for the purposes of that section may provide that failure to comply with the request affects whether the Commissioner may pass a request on to the trustee of the fund under the prescribed scheme.

Passing on tax file numbers

299NA(3)
The Commissioner of Taxation may inform the trustee of:

(a) a regulated superannuation fund; or

(b) an approved deposit fund;

of the tax file number of a beneficiary of the fund as part of the Commissioner passing on to the trustee a request made by the beneficiary under a scheme prescribed for the purposes of section 34A (Portability forms).

299NA(4)
If the Commissioner does so, the beneficiary is:

(a) taken to have quoted the tax file number to the trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; and

(b) taken to have quoted that tax file number at the time when the Commissioner informs the trustee of the tax file number.

View history note

Division 3 - Method of quotation of tax file numbers, including deemed quotation

View history reference

SECTION 299P

299P METHOD OF QUOTING TAX FILE NUMBER

View history reference

A person quotes his or her tax file number to another person in connection with the operation or the possible future operation of this Act and the other Superannuation Acts if:

(a) the person informs the other person of the number in a manner approved by the Regulator or in the approved form (as defined by section 388-50 in Schedule 1 to the Taxation Administration Act 1953); or

View history reference

(b) the person is taken to have quoted the number to the other person in connection with the operation or the possible future operation of this Act and the other Superannuation Acts under any of the following provisions of this Division.

View history reference

[ CCH Note: For the purposes of s 299P(a), APRA has made Superannuation Industry (Supervision) Tax File Number approval No 1 of 2017 (F2017L01262), which revokes and replaces Superannuation Industry (Supervision) Tax File Number approval No 1 of 2007 (F2007L02023), effective 1 October 2017.]

View history note

SECTION 299Q

299Q EMPLOYEE TAKEN TO HAVE QUOTED TO TRUSTEE WHERE TRUSTEE INFORMED BY EMPLOYER
If:

(a) an employee is a beneficiary, or an applicant to become a beneficiary, of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme; and

(b) the employer informs a trustee of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme of the employee's tax file number in accordance with section 299B or 299C;

View history reference

the employee is:

(c) taken to have quoted the tax file number to the trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; and

View history reference

(d) taken to have quoted the tax file number at the time when the employer informs the trustee.

View history note

SECTION 299R BENEFICIARY OR APPLICANT TAKEN TO HAVE QUOTED TO RSA PROVIDER OR TRUSTEE

299R(1) [Eligible superannuation entity]

View history reference

If a trustee (the first trustee ) of an eligible superannuation entity (the first entity ) informs an RSA provider or a trustee (the second trustee ) of another eligible superannuation entity or of a regulated exempt public sector superannuation scheme of the tax file number of a beneficiary of the first entity in accordance with subsection 299M(2), the beneficiary is:

(a) taken to have quoted the tax file number to the RSA provider or the second trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts or the Retirement Savings Accounts Act 1997; and

View history reference

(b) taken to have quoted that tax file number at the time when the first trustee informs the RSA provider or the second trustee.

View history reference

View history note

299R(2) [Regulated exempt public sector superannuation scheme]

View history reference

If a trustee (the first trustee ) of a regulated exempt public sector superannuation scheme (the first scheme ) informs an RSA provider or a trustee (the second trustee ) of another regulated exempt public sector superannuation scheme or of an eligible superannuation entity of the tax file number of a beneficiary of the first scheme in accordance with subsection 299N(2), the beneficiary is:

View history reference

(b) taken to have quoted that tax file number at the time when the first trustee informs the RSA provider or the second trustee.

View history reference

View history note

SECTION 299S PERSON CLAIMING BENEFIT TAKEN TO HAVE QUOTED TO TRUSTEE WHERE HE OR SHE PROVIDED TAX FILE NUMBER IN CONNECTION WITH CLAIM

299S(1)
This section applies if:

(a) before the commencement of this section, a person who considered that he or she was entitled to a benefit applied to a trustee of an eligible superannuation entity for payment of the benefit under section 248 or 252 and set out his or her tax file number in the application; or

(b) after the commencement of this section, a person who considers that he or she is entitled to a benefit applies to a trustee of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme for payment of the benefit and sets out in a manner approved by APRA his or her tax file number in the application.

[ CCH Note: For the purposes of s 299S(1)(b), APRA has made Superannuation Industry (Supervision) Tax File Number approval No 1 of 2017 (F2017L01262), which revokes and replaces Superannuation Industry (Supervision) Tax File Number approval No 1 of 2007 (F2007L02023), effective 1 October 2017.]

View history note

299S(2)
The beneficiary is:

(a) taken to have quoted the tax file number to the trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; and

View history reference

(b) taken to have quoted that tax file number at the time when the trustee received or receives the application.

View history note

SECTION 299SA BENEFICIARY TAKEN TO HAVE QUOTED WHERE COMMISSIONER GIVES NOTICE

View history reference

299SA(1) [Notice from Commissioner]

A beneficiary, or an applicant to become a beneficiary, of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme is taken to have quoted his or her tax file number to a trustee of the entity or scheme in connection with the operation or the possible future operation of this Act and the other Superannuation Acts if the Commissioner of Taxation gives to the trustee notice of the person's tax file number.

299SA(2) [Timing]

The beneficiary or applicant is taken to have quoted that tax file number at the time when the Commissioner of Taxation gave the notice.

View history note

SECTION 299T

299T BENEFICIARY TAKEN TO HAVE QUOTED IF HE OR SHE QUOTED FOR OTHER PURPOSES
If a beneficiary, or an applicant to become a beneficiary, of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme has quoted his or her tax file number to a trustee of the entity or scheme under:

(a) subsection 225(4) or 245(2) of this Act, as in force immediately before its amendment by the Taxation Laws Amendment Act (No. 2) 1996; or

(b) a provision of the Income Tax Assessment Act 1936; or

(c) a provision of the repealed Part IIIA of the Occupational Superannuation Standards Act 1987 (including a provision as it continues to apply because of the Taxation Laws Amendment (Superannuation) Act 1992);

then, for the purposes of this Act, as in force after the commencement of this section, the beneficiary is:

(d) taken to have quoted the tax file number to the trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; and

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(e) taken to have quoted that tax file number to the trustee at the later of the time at which the quotation took place and the commencement of this section.

View history note

Division 3A - Commissioner of Taxation may issue notices about tax file numbers

View history reference

View history note

SECTION 299TA EFFECT OF MISTAKEN QUOTATION OF TAX FILE NUMBER

View history reference

299TA(1)

View history reference

The Commissioner of Taxation (the Commissioner ) may give the trustee of an eligible superannuation entity or a regulated exempt public sector superannuation scheme notice of the tax file number of a beneficiary of the entity or scheme if:

(a) the trustee has made a record of a number (the recorded TFN ) the trustee believes to be the tax file number of the beneficiary; and

(b) the Commissioner is satisfied that the recorded TFN:

(i) has been cancelled or withdrawn since it was quoted; or

(ii) is otherwise wrong; and

(c) the Commissioner is satisfied that the beneficiary has a tax file number.

View history note

299TA(2)
The beneficiary is taken to have quoted his or her tax file number to the trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts at a time if:

(a) the Commissioner gives the trustee of an eligible superannuation entity or a regulated exempt public sector superannuation scheme a notice under subsection (1); and

(b) had the recorded TFN been the tax file number of the beneficiary, the beneficiary would have quoted his or her tax file number to the trustee in that way at the time.

View history note

SECTION 299TB EFFECT OF INVALID QUOTATION OF TAX FILE NUMBER

View history reference

299TB(1)

View history reference

The Commissioner of Taxation (the Commissioner ) may give the trustee of an eligible superannuation entity or a regulated exempt public sector superannuation scheme a notice under subsection (2) if:

(a) the trustee has made a record of a number (the recorded TFN ) the trustee believes to be the tax file number of the beneficiary; and

(b) the Commissioner is satisfied that the recorded TFN:

(i) has been cancelled or withdrawn since it was quoted; or

(ii) is otherwise wrong; and

(c) the Commissioner is not satisfied that the beneficiary has a tax file number.

View history note

299TB(2)
The notice must identify the beneficiary and state that the Commissioner is not satisfied that the beneficiary has a tax file number.

299TB(3)
If the Commissioner gives a notice under subsection (2), the Commissioner must give a copy of the notice to the beneficiary.

View history note

SECTION 299TC COMMISSIONER OF TAXATION MAY INFORM TRUSTEE OF TAX FILE NUMBER

View history reference

299TC(1)
The Commissioner of Taxation (the Commissioner ) may give the trustee of an eligible superannuation entity or a regulated exempt public sector superannuation scheme notice of the tax file number of a person if the Commissioner is satisfied that:

(a) the person is a beneficiary of the eligible superannuation entity or the regulated exempt public sector superannuation scheme, or an applicant to become such a beneficiary; and

(b) the person has quoted (for superannuation purposes) (within the meaning of the Income Tax Assessment Act 1997) his or her tax file number to another person.

299TC(2)
However if, before the time the Commissioner gives the notice, the person specifically requests the trustee not to record the person's tax file number:

(a) the notice is to be disregarded; and

(b) section 299SA does not apply to deem the person to have quoted the tax file number to the trustee when the notice was given.

Note:

A consequence is that provisions that require or permit a trustee to record or use a validly quoted tax file number do not apply.

View history note

SECTION 299TD VALIDATION NOTICE - BENEFICIARIES OF ELIGIBLE SUPERANNUATION ENTITIES

View history reference

299TD(1)
The Commissioner of Taxation (the Commissioner ) may give the trustee of an eligible superannuation entity or a regulated exempt public sector superannuation scheme a notice under subsection (2) if:

(a) the trustee gives the Commissioner information that the trustee believes to be:

(i) the full name, tax file number and date of birth of a person; or

(ii) the full name, tax file number, date of birth and address of a person; and

(b) the Commissioner is satisfied that:

(i) the person is a beneficiary of the entity or scheme, or an applicant to become such a beneficiary; and

(ii) the trustee is giving the information to the Commissioner in connection with the operation of the entity or scheme; and

(c) the Commissioner is satisfied, having regard to the information (if any) that the Commissioner has recorded for the tax file number given, that it is reasonable to give the notice.

299TD(2)
The notice must state whether or not the Commissioner is able to validate the information given.

299TD(3)
To avoid doubt, a notice that the Commissioner is not able to validate the information is not a notice under section 299TB.

View history note

SECTION 299TE VALIDATION NOTICE - EMPLOYEES

View history reference

299TE(1)
The Commissioner of Taxation (the Commissioner ) may give an employer a notice under subsection (2) if:

(a) the employer gives the Commissioner information that the employer believes to be:

(i) the full name, tax file number and date of birth of a person; or

(ii) the full name, tax file number, date of birth and address of a person; and

(b) the Commissioner is satisfied that:

(i) the person is an employee of the employer for whose benefit a contribution to an eligible superannuation entity or a regulated exempt public sector superannuation scheme is to be made; and

(ii) the employer is giving the information to the Commissioner in connection with the operation of the entity or scheme; and

(iii) that use by the employer of the tax file number complies with section 299CA; and

(c) the Commissioner is satisfied, having regard to the information (if any) that the Commissioner has recorded for the tax file number given, that it is reasonable to give the notice.

299TE(2)
The notice must state whether or not the Commissioner is able to validate the information given.

299TE(3)
To avoid doubt, a notice that the Commissioner is not able to validate the information is not a notice under subsection 202CE(3) of the Income Tax Assessment Act 1936.

View history note

SECTION 299TF

299TF COMMISSIONER OF TAXATION MAY PROVIDE ELECTRONIC INTERFACE

View history reference

The Commissioner of Taxation may use an electronic interface to receive information and give notices under this Division.

View history note

Division 4 - Provision of tax file numbers in forms etc.

SECTION 299U FORMS ETC. MAY REQUIRE TAX FILE NUMBER
Election notice

299U(1)

View history reference

The approved form of written notice by the trustee, or the trustees, of a fund for the purposes of subsection 19(4) may require the notice to contain the tax file number of the fund.

View history note

Financial return

299U(2)

View history reference

The form of a financial return a copy of which is required to be given by a superannuation entity to APRA under section 13 of the Financial Sector (Collection of Data) Act 2001 may require the return to contain the entity's tax file number.

View history note

Portability forms

299U(2A)

View history reference

An approved form mentioned in subsection 34A(2) may require the tax file number of the beneficiary making the relevant request to be set out in the request.

View history note

Particulars of notice

299U(3)

View history reference

Particulars of a notice to a trustee of an entity that are required by subsection 40(3) to be given to the Commissioner of Taxation may be accompanied by a statement of the tax file number of the entity.

View history note

299U(4)

View history reference

(Repealed by No 128 of 1999)

View history note

299U(5)
(Repealed by No 128 of 1999)

View history note

Claims for benefits from eligible rollover fund

299U(6)
The approved form of application for the purposes of subsection 248(2) may require the tax file number of the applicant to be set out in the application.

Claims for benefits from eligible transitional fund

299U(7)
The approved form of application for the purposes of section 252 may require the tax file number of the applicant to be set out in the application.

Information to be given after establishment of entity

299U(8)
The approved form for information required to be given under subsection 254(1) may require the tax file number of the entity to be given.

View history note

299U(8A)

View history reference

Information prescribed for the purposes of paragraph 254(2A)(b) in relation to an entity may include the tax file number of the entity.

View history note

Notice to give information

299U(9)

View history reference

Information that may be required to be given in relation to a superannuation entity under section 254A may include the tax file number of the entity.

View history note

SECTION 299V

299V FAILURE TO QUOTE TAX FILE NUMBER

View history reference

For the purposes of section 137.1 of the Criminal Code, a person does not omit a matter or thing from a statement made to a SIS officer (within the meaning of section 301) merely because the person has, in making the statement, failed to quote his or her tax file number.

View history note

Division 5 - General

SECTION 299W

299W DEFINITIONS

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In this Part, unless the contrary intention appears:

eligible superannuation entity
(Repealed by No 158 of 2012)

View history note

regulated exempt public sector superannuation scheme
means an exempt public sector superannuation scheme in respect of which either of the following applies:

(a) the trustee of the scheme is a constitutional corporation;

(b) the sole or primary purpose of the scheme is the provision of old-age pensions.

Superannuation Acts
means the following:

(a) this Act;

(b) the Superannuation Contributions Tax (Assessment and Collection) Act 1997;

(c) the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997;

(d) the Superannuation (Unclaimed Money and Lost Members) Act 1999.

(e) (Repealed by No 23 of 2018)

View history note

Surcharge Acts
means:

(a) the Superannuation Contributions Tax (Assessment and Collection) Act 1997; and

(b) the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997.

(c) (Repealed by No 23 of 2018)

View history note

tax file number
has the meaning given by section 202A of the Income Tax Assessment Act 1936.

View history note

SECTION 299X

299X STATE INSURANCE
This Part does not apply with respect to State insurance that does not extend beyond the limits of the State concerned.

View history note

SECTION 299Y TRUSTEE OF FORMER REGULATED EXEMPT PUBLIC SECTOR SUPERANNUATION SCHEME TO DESTROY RECORDS OF TAX FILE NUMBERS

299Y(1)

View history reference

If an exempt public sector superannuation scheme ceases to be a regulated exempt public sector superannuation scheme and does not become an eligible superannuation entity, each trustee of the scheme must ensure that, as soon as is reasonably practicable, all records of tax file numbers of beneficiaries, or of applicants to become beneficiaries, of the scheme that are kept by the trustee are destroyed.

View history note

299Y(2)

View history reference

A trustee commits an offence if the trustee contravenes subsection (1).

Penalty: 100 penalty units.

View history note

299Y(3)

View history reference

A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Penalty: 50 penalty units.

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.

View history note

SECTION 299Z TRANSITIONAL PROVISIONS

View history reference

299Z(1) [Continued application of Part where TFN quoted]

Despite the amendments made to this Part by Schedule 3 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997, this Part as it applied immediately before the commencement of that Schedule continues to apply to:

(a) an employee who, before that commencement, quoted his or her tax file number to his or her employer in connection with the operation or the possible future operation of this Act; or

(b) a beneficiary, or an applicant to become a beneficiary, of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme who, before that commencement, quoted his or her tax file number to the trustee of the entity or scheme in connection with the operation or the possible future operation of this Act;

as if those amendments had not been made.

299Z(2) [When employee deemed to have quoted TFN to employer]

View history reference

If:

(a) before the commencement of Schedule 3 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997, or after that commencement but before 5 June 1998, an employee quoted his or her tax file number to his or her employer in connection with the operation or the possible future operation of this Act; and

View history reference

(b) the employer notifies the employee in writing that the employer intends to inform the trustee of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme of the employee's tax file number unless the employee tells the employer, within 30 days after the day on which the notification is received, that the employee objects to the employer informing the trustee of the tax file number; and

(c) the employee does not tell the employer within that period that the employee objects to the employer informing the trustee of the tax file number;

subsection (1) does not apply to the employee, and the employee is taken to have quoted the tax file number to the employer in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

View history note

299Z(3) [Deemed TFN quotation to trustee]

View history reference

If:

(a) before the commencement of Schedule 3 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997, or after that commencement but before 5 June 1998, a beneficiary, or an applicant to become a beneficiary, of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme has quoted his or her tax file number to the trustee of the entity or scheme in connection with the operation or the possible future operation of this Act; and

View history reference

(b) the trustee notifies the beneficiary or applicant in writing that the trustee intends to inform the Commissioner of Taxation, the trustee of another such entity or scheme or an RSA provider of the tax file number unless the beneficiary or applicant tells the trustee, within 30 days after the day on which the notification is received, that the beneficiary or applicant objects to the trustee informing the Commissioner of Taxation, the trustee of the other entity or scheme or the RSA provider, as the case may be, of the tax file number; and

(c) the beneficiary or applicant does not tell the trustee within that period that the beneficiary or applicant objects to the trustee informing the Commissioner of Taxation, the trustee of the other entity or scheme or the RSA provider, as the case may be, of the tax file number;

subsection (1) does not apply to the beneficiary or applicant, and the beneficiary or applicant is taken to have quoted the tax file number to the trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

View history note

PART 26 - OFFENCES RELATING TO STATEMENTS, RECORDS ETC.

SECTION 300

300 OBJECT OF PART
The object of this Part is to protect the integrity of the system of supervision provided for by this Act by penalising the making of false or misleading statements, the keeping of incorrect records and the falsification or concealment of identity.

SECTION 301

301 INTERPRETATION

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In this Part:

SIS officer
means a person exercising powers or performing functions under or in relation to this Act, the regulations or the prudential standards.

View history note

statement made to an SIS officer
means a statement made to an SIS officer orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes a statement:

(a) made in an application, notification, return or other document made, prepared, given or purporting to be made, prepared or given, under this Act, the regulations or the prudential standards; or

(b) made in answer to a question asked of a person under this Act, the regulations or the prudential standards; or

(c) made in any information given, or purporting to be given, under this Act, the regulations or the prudential standards; or

(d) made in a document given to an SIS officer otherwise than under this Act, the regulations or the prudential standards;

but does not include a statement made in a document produced under subsection 255(1) or 260(2) or section 269.

View history note

302 (Repealed) SECTION 302 FALSE OR MISLEADING STATEMENTS
(Repealed by No 137 of 2000)

View history note

SECTION 303 INCORRECTLY KEEPING RECORDS ETC.

303(1)

View history reference

Where:

(a) a person who is required under this Act, the regulations or the prudential standards to keep any accounts, accounting records or other records keeps them in such a way that they do not correctly record and explain the matters, transactions, acts or operations to which they relate; or

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(b) a person who is required under this Act, the regulations or the prudential standards to make a record of any matter, transaction, act or operation makes it in such a way that it does not correctly record the matter, transaction, act or operation;

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the person commits an offence punishable on conviction by a fine not exceeding 40 penalty units.

View history note

303(1A)

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Subsection (1) 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.

View history note

303(2)
In a prosecution of a person for an offence against subsection (1), it is a defence if the person proves that the person:

(a) did not know; and

(b) could not reasonably be expected to have known;

that:

(c) in the case of a prosecution for an offence against subsection (1) by virtue of paragraph (a) - the accounts, accounting records or other records to which the prosecution relates did not correctly record and explain the matters, transactions, acts or operations to which they relate; or

(d) in the case of a prosecution for an offence against subsection (1) by virtue of paragraph (b) - the record to which the prosecution relates did not correctly record the matter, transaction, act or operation to which the record relates.

Note:

A defendant bears a legal burden in relation to the matters in subsection (2) (see section 13.4 of the Criminal Code).

View history note

304 (Repealed) SECTION 304 RECKLESSLY MAKING FALSE OR MISLEADING STATEMENTS
(Repealed by No 137 of 2000)

View history note

305 (Repealed) SECTION 305 INTENTIONALLY MAKING FALSE OR MISLEADING STATEMENTS
(Repealed by No 137 of 2000)

View history note

SECTION 306 INCORRECTLY KEEPING OR MAKING RECORDS ETC.

View history reference

306(1)

View history reference

If:

(a) a person is required under this Act, the regulations or the prudential standards to keep any accounts, accounting records or other records; and

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(b) the person keeps those accounts or records in such a way that they do not correctly record and explain the matters, transactions, acts or operations to which they relate;

the person commits an offence punishable on conviction by imprisonment for not longer than 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

306(2)

View history reference

If:

(a) a person isrequired under this Act, the regulations or the prudential standards to make a record of any matter, transaction, act or operation; and

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(b) the person makes such a record in such a way that it does not correctly record the matter, transaction, act or operation;

the person commits an offence punishable on conviction by imprisonment for not longer than 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

View history note

SECTION 307 INCORRECTLY KEEPING RECORDS WITH INTENTION OF DECEIVING OR MISLEADING ETC.

307(1)

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A person commits an offence if the person:

(a) keeps any accounts, accounting records or other records in such a way that they:

(i) do not correctly record and explain the matters, transactions, acts or operations to which they relate; or

(ii) are (whether in whole or in part) illegible, indecipherable, incapable of identification or, if they are kept in the form of a data processing device, incapable of being used to reproduce information; or

(b) makes a record of any matter, transaction, act or operation in such a way that it does not correctly record the matter, transaction, act or operation; or

(c) alters, defaces, mutilates, falsifies, damages, removes, conceals or destroys any accounts, accounting records or other records (whether in whole or in part); or

(d) does or omits to do any other act or thing to any accounts, accounting records or other records;

with any of the following intentions (whether or not the person had any other intention):

(e) deceiving or misleading the Regulator or a particular SIS officer;

(f) hindering or obstructing the Regulator or a particular SIS officer (otherwise than in the investigation of an offence against, or arising out of, this Act or the regulations);

(g) hindering or obstructing the investigation of an offence against, or arising out of, this Act or the regulations;

(h) hindering, obstructing or defeating the administration, execution or enforcement of this Act, the regulations or the prudential standards;

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(i) defeating the purposes of this Act, the regulations or the prudential standards.

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307(2)
The offence is punishable on conviction by imprisonment for a term not exceeding 2 years.

SECTION 308 FALSIFYING OR CONCEALING IDENTITY WITH INTENTION OF DECEIVING OR MISLEADING ETC.

308(1)

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A person commits an offence if the person:

(a) falsifies or conceals the identity of, or the address or location of a place of residence or business of, the person or another person; or

(b) does or omits to do any act or thing the doing or omission of which facilitates the falsification or concealment of the identity of, or the address or location of a place of residence or business of, the person or another person;

with any of the following intentions (whether or not the person had any other intention):

(c) deceiving or misleading the Regulator or a particular SIS officer;

(d) hindering or obstructing the Regulator or a particular SIS officer (otherwise than in the investigation of an offence against, or arising out of, this Act or the regulations);

(e) hindering or obstructing the investigation of an offence against, or arising out of, this Act or the regulations;

(f) hindering, obstructing or defeating the administration, execution or enforcement of this Act, the regulations or the prudential standards;

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(g) defeating the purposes of this Act, the regulations or the prudential standards.

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308(2)
The offence is punishable on conviction by imprisonment for a term not exceeding 2 years.

PART 27 - POWERS OF COURT

SECTION 309

309 OBJECT OF PART
The object of this Part is to set out rules about the power of the courts to deal with matters arising under this Act.

SECTION 310 POWER TO GRANT RELIEF

310(1) Court may relieve liability for misconduct.

If, in a civil proceeding against a superannuation official for official misconduct in a capacity as such a person, it appears to the court that the official is or may be liable in respect of the official misconduct, the court may, if subsection (2) is satisfied, relieve the official either wholly or partly from the liability, on such terms as the court thinks fit.

310(2) Basis for granting relief.

The court may only relieve the official from the liability if it appears to the court that:

(a) the official has acted honestly; and

(b) having regard to all the circumstances of the case, including those connected with the official's appointment, he or she ought fairly to be excused for the official misconduct.

310(3) Withdrawal of case from jury.

If:

(a) the case is being tried by a judge with a jury; and

(b) after hearing the evidence, the judge is satisfied that relief ought to be given under subsection (1);

the judge may withdraw the case in whole or in part from the jury and immediately direct judgement to be entered for the superannuation official on such terms as to costs or otherwise as the judge thinks proper.

310(4) Where claim yet to be made.

If a superannuation official has reason to believe that a claim will or might be made against the official in respect of any official misconduct in a capacity as such a person:

(a) the official may apply to the Court for relief; and

(b) the Court has the same power to grant relief as it would have under subsection (1) if it had been a court before which proceedings against the official for official misconduct had been brought.

310(5) Definitions.

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In this section:

officer
, in relation to a corporate trustee, means:

(a) a responsible officer or employee of the corporate trustee; or

(b) a receiver, or receiver and manager, of property of the body, where the property is beneficially owned by the corporate trustee; or

(c) an administrator of the corporate trustee; or

(d) a liquidator or provisional liquidator of the corporate trustee; or

(e) a trustee or other person administering a compromise or arrangement made between the corporate trustee and another person or other persons.

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official misconduct
means negligence, default, breach of trust or breach of duty.

superannuation official
means:

(a) a trustee of a superannuation entity; or

(b) an officer of a corporate trustee of a superannuation entity; or

(c) an auditor of a superannuation entity; or

(d) an actuary of a superannuation entity.

310(6) Special meaning of employee .

The meaning of the expression employee , when used in this section, is to be determined as if subsections 12(3) and (8) of the Superannuation Guarantee (Administration) Act 1992 had not been enacted. (Those subsections deem certain contractors to be employees.)

SECTION 311

311 POWER OF COURT TO GIVE DIRECTIONS WITH RESPECT TO MEETINGS ORDERED BY THE COURT
If, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to the convening, holding or conduct of the meeting, and such ancillary or consequential directions in relation to the meeting, as it thinks fit.

SECTION 312 IRREGULARITIES

312(1) Definitions.

In this section:

procedural irregularity
includes:

(a) the absence of a quorum at a meeting of:

(i) trustees of a superannuation entity; or

(ii) directors of a corporate trustee of a superannuation entity; or

(iii) beneficiaries in a superannuation entity; or

(iv) members of a policy committee of an employer-sponsored fund; or

(b) a defect, irregularity or deficiency of notice or time.

proceeding under this Act
means any proceeding, whether a legal proceeding or not, under this Act.

312(2) Effect of irregularities on proceedings.

A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court:

(a) is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court; and

(b) by order declares the proceeding to be invalid.

312(3) Effect of failure to give notice etc. on meetings.

Subject to subsection (4), none of the following:

(a) a meeting held for the purposes of this Act;

(b) a meeting of which notice is required to be given in accordance with this Act;

(c) any proceeding at such a meeting;

is invalidated only because of the accidental omission to give notice of the meeting or the non-receipt by any person of notice of the meeting.

312(4) Court may declare proceedings at meeting void.

In spite of subsection (3), the Court may declare proceedings at the meeting to be void on application of:

(a) the person concerned; or

(b) a person entitled to attend the meeting; or

(c) the Regulator.

View history note

312(5) Court may make certain orders.

Subject to the remainder of this section, but without limiting any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders (either unconditionally or subject to any conditions imposed by the Court):

(a) an order declaring that:

(i) any act, matter or thing purporting to have been done; or

(ii) any proceeding purporting to have been instituted or taken;

under this Act or in relation to a superannuation entity is not invalid because of any contravention of a provision of:

(iii) this Act; or

(iv) the governing rules of a superannuation entity;

(b) an order relieving a person in whole or in part from any civil liability in respect of a contravention mentioned in paragraph (a);

(c) an order:

(i) extending the period for doing any act, matter or thing or for instituting or taking any proceeding under this Act or in relation to a superannuation entity (including extending a period if it ended before the application for the order was made); or

(ii) shortening the period for doing such an act, matter or thing or for instituting or taking such a proceeding.

312(6) Consequential and ancillary orders.

The Court may also make any consequential or ancillary order that it thinks fit.

312(7) Orders where offence.

An order may be made under paragraph (5)(a) or (b) even though the contravention referred to in the paragraph concerned resulted in the commission of an offence.

312(8) Restrictions on making orders.

The Court must not make an order under this section unless it is satisfied:

(a) in the case of an order referred to in paragraph (5)(a):

(i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; or

(ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or

(iii) that it is in the public interest that the order be made; and

(b) in the case of an order referred to in paragraph (5)(b) - that the person subject to the civil liability concerned acted honestly; and

(c) in every case - that no substantial injustice has been or is likely to be caused to any person.

SECTION 313 POWER OF COURT TO PROHIBIT PAYMENT OR TRANSFER OF MONEY OR PROPERTY

313(1) Court's power to protect interests of certain creditors etc.

If:

(a)

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any of the following applies:

(i) an investigation is being carried out under this Act in relation to an act or omission by a person (the contravening person ), being an act or omission that constitutes or may constitute a contravention of this Act; or

(ii) a prosecution has begun against a person (also the contravening person ) for a contravention of this Act, or under the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023, in connection with a superannuation entity; or

(iii) a civil proceeding has begun against a person (also the contravening person ) under this Act; and

(b) the Regulator or a person (an aggrieved person ) to whom the contravening person is liable, or may become liable:

(i) to pay money (whether in respect of a debt, by way of damages or compensation or otherwise); or

(ii) to account for property;

applies to the Court; and

(c) the Court considers it necessary or desirable to do so for the purpose of protecting the interests of an aggrieved person;

the Court may make one or more of the orders specified in subsection (2).

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313(1A) Court's power to protect the interests of beneficiaries.

If:

(a) the Regulator is of the opinion that it is necessary for the Court to make one or more of the orders specified in subsection (2) to protect the interests of any or all of the beneficiaries of a superannuation entity; and

(b)

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the Regulator applies to the Court for such an order in relation to a trustee of the entity; and

(c) the Court considers it necessary or desirable to protect the interests of any or all of the beneficiaries;

the Court may make one or more of the orders specified in subsection (2).

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313(1B) Any reference to the contravening person is a reference to the trustee.

For the purposes of subsection (1A), subsection (2) has effect as if any reference to the contravening person were a reference to the trustee.

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313(2) Orders that Court may make.

The orders that the Court may make are:

(a) an order prohibiting a person who is indebted to the contravening person or to an associate of the contravening person from making a payment in total or partial discharge of the debt to:

(i) the contravening person or associate; or

(ii) another person at the direction or request of the contravening person or associate;

(b) an order prohibiting a person holding money or property on behalf of the contravening person or of an associate of the contravening person from:

(i) paying all or any of the money; or

(ii) transferring or otherwise parting with possession of the property;

to:

(iii) the contravening person or associate; or

(iv) another person at the direction or request of the contravening person or associate;

(c) an order prohibiting the taking or sending outof Australia by a person of money of the contravening person or of an associate of the contravening person;

(d) an order prohibiting the taking, sending or transfer by a person of property of the contravening person, or of an associate of the contravening person from a place in Australia to a place outside Australia (including the transfer of interests from a register in Australia to a register outside Australia);

(e) an order appointing:

(i) if the contravening person is an individual - a receiver or trustee, having such powers as the Court orders, of the property or of part of the property of that person; or

(ii) if the contravening person is a body corporate - a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person;

(f) if the contravening person is an individual - an order requiring that person to deliver up to the Court his or her passport and such other documents as the Court thinks fit;

(g) if the contravening person is an individual - an order prohibiting that person from leaving Australia without the consent of the Court.

313(3) Property in (2)(d) or (e).

A reference in paragraph (2)(d) or (e) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example:

(a) as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or

(b) in a fiduciary capacity.

313(4) Purpose of subsection (3).

Subsection (3) is to avoid doubt, is not to limit the generality of anything in subsection (1) and is not to affect by implication the interpretation of any other provision of this Act.

313(5) Absolute or conditional orders.

An order made under subsection (1) or (1A) prohibiting conduct may prohibit the conduct either absolutely or subject to conditions.

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313(6) Interim orders.

If an application is made to the Court for an order under subsection (1) or (1A), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order (being an order of the kind applied for that is expressed to have effect pending the determination of the application).

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313(7) Damages undertakings.

On an application under subsection (1) or (1A), the Court must not require the applicant or any other person, as a condition of granting an interim orderunder subsection (6), to give an undertaking as to damages.

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313(8) Further orders.

If the Court has made an order under this section on a person's application, the Court may, on application by that person or by any person affected by the order, make a further order discharging or varying the first-mentioned order.

313(9) Period of order.

An order made under subsection (1), (1A) or (6) may be expressed to operate for a specified period or until the order is discharged by a further order under this section.

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313(10) Court's other powers not affected.

This section does not affect the powers that the Court has apart from this section.

313(11) Section subject to Bankruptcy Act.

This section has effect subject to the Bankruptcy Act 1966.

313(12) Offence to contravene orders.

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A person who intentionally or recklessly contravenes an order by the Court under this section that is applicable to the person commits an offence punishable on conviction by imprisonment for a term of not more than 6 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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SECTION 314 COURT MAY ORDER THE DISCLOSURE OF INFORMATION OR THE PUBLICATION OF ADVERTISEMENTS - CONTRAVENTION OF PROVISIONS RELATING TO ISSUE OF SUPERANNUATION INTERESTS ETC.

314(1)

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If a person (the alleged offender ) has engaged, is engaging or is proposing to engage in conduct in contravention of Part 19, the Court may, on the Regulator's application, make an order or orders under either or both of subsections (2) and (3).

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314(2)
The Court may make an order:

(a) requiring the alleged offender, or a person involved in the contravention, to disclose information to:

(i) the public; or

(ii) a specified person; or

(iii) persons included in a specified class of persons; and

(b) specifying the information, or the kind of information, that is to be disclosed, being information:

(i) in the possession of the person to whom the order is directed; or

(ii) to which that person has access; and

(c) specifying the way in which it is to be disclosed.

314(3)
The Court may make an order:

(a) requiring the alleged offender, or a person involved in the contravention, to publish advertisements and pay the expenses; and

(b) specifying the terms of the advertisements, or the way in which the terms of the advertisements are to be determined; and

(c) specifying the way in which, and times at which, the advertisements are to be published.

314(4)

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A person who intentionally or recklessly contravenes an order under subsection (2) or (3) commits an offence punishable on conviction by imprisonment for a term of not more than 6 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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SECTION 315 INJUNCTIONS
Restraining injunctions

315(1)
If a person (the perpetrator ) has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:

(a)

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a contravention of this Act, a condition imposed on an RSE licence or a direction given under this Act; or

(b)

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attempting to contravene this Act, a condition imposed on an RSE licence or a direction given under this Act; or

(c)

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aiding, abetting, counselling or procuring a person to contravene this Act, a condition imposed on an RSE licence or a direction given under this Act; or

(d)

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inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act, a condition imposed on an RSE licence or a direction given under this Act; or

(e)

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being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act, a condition imposed on an RSE licence or a direction given under this Act; or

(f)

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conspiring with others to contravene this Act, a condition imposed on an RSE licence or a direction given under this Act;

the Court may grant an injunction in accordance with subsection (2).

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Nature of injunction

315(2)
If granted, the injunction:

(a) is to restrain the perpetrator from engaging in the conduct; and

(b) if in the opinion of the Court it is desirable to do so, may also require that person to do any act or thing.

The Court may only grant the injunction on the application of the Regulator, or of a person whose interests have been, are, or would be, affected by the conduct and may grant it on such terms as the Court thinks appropriate.

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Performance injunctions

315(3)

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If a person (the unwilling person ) has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act, a condition imposed on an RSE licence or a direction given under this Act to do, the Court may, on the application of:

(a) the Regulator; or

(b) any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;

grant an injunction, on such terms as the Court thinks appropriate, requiring the unwilling person to do that act or thing.

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Consent injunctions

315(4)
If an application for an injunction under subsection (1) or (3) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies.

Interim injunctions

315(5)
If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

Variation or discharge of injunctions

315(6)

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The Court may discharge or vary an injunction granted under this section.

View history note

Restraining injunctions

315(7)
The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b) whether or not the person has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

Performance injunctions

315(8)
The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or failed to do that act or thing; and

(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

Damages undertakings

315(9)
If the Regulator applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

View history note

Section 313 orders

315(10)
In proceedings under this section against a person the Court may make an order under section 313 in respect of the person.

Damages orders

315(11)
If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

This section extends Federal Court's powers

315(11A)

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The powers this section gives the Court are additional to (and do not limit) its other powers.

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Definition

315(12)

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In this section:

do an act or thing
includes:

(a) give effect to a determination made under the AFCA scheme; or

(b) reconsider a matter in accordance with the a determination made under that scheme.

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SECTION 316

316 EFFECT OF SECTIONS 313, 314 AND 315
Nothing in any one of section 313, 314 or 315 limits the generality of anything else in any other of those sections.

SECTION 317

317 POWER OF COURT TO PUNISH FOR CONTEMPT OF COURT
Nothing in a provision of this Act that provides:

(a) that a person must not contravene an order of the Court; or

(b) that a person who contravenes an order of the Court contravenes a provision of this Act or commits an offence;

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affects the powers of the Court in relation to the punishment of contempts of the Court.

SECTION 318 COURT MAY RESOLVE TRANSITIONAL DIFFICULTIES

318(1) [Court order]

If any difficulty:

(a) arises in applying a provision of this Act in relation to a particular case in relation to which, if this Act had not been enacted, a provision of another law corresponding to the first-mentioned provision would have applied; or

(b) arises, because of a provision of this Act, in applying, in relation to a particular case, another provision of this Act or a provision of another law corresponding to another provision of this Act;

the Court may, on the application of an interested person, make such order as it thinks proper to remove the difficulty.

318(2) [Effect of order]

An order under this section has effect despite anything in a provision of this Act.

318(3) [Application of Constitution]

This section has effect subject to the Constitution.

PART 28 - PROCEEDINGS

SECTION 319

319 OBJECT OF PART
The object of this Part is to set out various rules about court proceedings.

SECTION 320 POWER OF REGULATOR TO INTERVENE IN PROCEEDINGS

320(1)
The Regulator may intervene in any proceeding relating to a matter arising under this Act.

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320(2)
If the Regulator intervenes in a proceeding referred to in subsection (1), the Regulator is taken to be a party to the proceeding and, subject to this Act, has all the rights, duties and liabilities of such a party.

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320(3)
Without limiting the generality of subsection (2), the Regulator may appear and be represented in any proceeding in which he or she wishes to intervene under subsection (1):

(a) by a member of the staff of the Regulator; or

(b) by an individual to whom, or by an officer or employee of a person or body to whom or to which, the Regulator has delegated its functions and powers under this Act or such of those functions and powers as relate to a matter to which the proceeding relates; or

(c) by solicitor or counsel.

View history note

320(4)
(Repealed by No 23 of 2018)

Note:

For the definition of Regulator , see subsection 10(1).

View history note

SECTION 321

321 CIVIL PROCEEDINGS NOT TO BE STAYED
No civil proceedings under this Act are to be stayed merely because the proceeding discloses, or arises out of, the commission of an offence.

SECTION 322 STANDARD OF PROOF

322(1) Where subsection (2) applies.

Subsection (2) applies if, in proceedings other than proceedings for an offence, it is necessary to establish, or for the Court to be satisfied, for any purpose relating to a matter arising under this Act, that:

(a) a person has contravened a provision of this Act; or

(b) default has been made in complying with a provision of this Act; or

(c) an act or omission was unlawful under a provision of this Act; or

(d) a person has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to a contravention of, or a default in complying with, a provision of this Act.

322(2) Matters to be established etc. on balance of probabilities.

It is sufficient if the matter referred to in paragraph (1)(a), (b), (c) or (d) is established, or the Court is so satisfied, as the case may be, on the balance of probabilities.

SECTION 323 RELIEF FROM CIVIL LIABILITY FOR CONTRAVENTION OF CERTAIN PROVISIONS

323(1) Proceedings to which this section applies.

This section applies to:

(a)eligible proceedings (within the meaning of section 221); and

(b) proceedings under subsection 55(3).

View history reference

View history note

323(2) Defences.

Subject to subsection (4), in proceedings against a person (the defendant ) in respect of a contravention, it is a defence if the defendant establishes:

(a) that the contravention was due to reasonable mistake; or

(b) that the contravention was due to reasonable reliance on information supplied by another person; or

(c) that:

(i) the contravention was due to:

(A) the act or default of another person; or

(B) an accident; or

(C) some other cause beyond the defendant's control; and

(ii) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.

323(3) Meaning of another person .

For the purposes of the application of subsection (2) to the defendant, a reference to another person does not include a person who was, at the time when the contravention occurred:

(a) in any case - a servant or agent of the defendant; or

(b) if the defendant is a body corporate - a director, servant or agent of the defendant.

323(4) Notice to be given about reliance on defence.

If a defence provided by subsection (2) involves an allegation that a contravention was due to:

(a) reliance on information supplied by another person; or

(b) the act or default of another person;

the defendant is not entitled to rely on that defence unless:

(c) the court grants leave; or

(d) both:

(i) the defendant has served on the person by whom the proceedings were instituted a written notice giving such information:

(A) that would identify, or assist in the identification of, the other person; and

(B) as was then in the defendant's possession; and

(ii) that notice is served not later than 7 days before the day on which the hearing of the proceedings begins.

SECTION 324

324 EVIDENCE OF CONTRAVENTION
For the purposes of this Act, a certificate that:

(a) purports to be signed by the Registrar or other proper officer of anAustralian court; and

(b) states that:

(i) a person was convicted by that court on a specified day of a specified offence; or

(ii) a person charged before that court with a specified offence was, on a specified day, found in that court to have committed the offence but that the court did not proceed to convict the person of the offence;

is, unless it is proved that the conviction was quashed or set aside, or that the finding was set aside or reversed, as the case may be, conclusive evidence:

(c) if subparagraph (b)(i) applies - that the person was convicted of the offence on that day; and

(d) if the offence was constituted by a contravention of a provision of a law - that the person contravened that provision.

SECTION 324A

324A TIME FOR INSTITUTING CRIMINAL PROCEEDINGS

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Despite anything in any other law, proceedings for an offence against a provision of this Act may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time.

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SECTION 324B INSTITUTING CRIMINAL PROCEEDINGS

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324B(1)
Proceedings before the Federal Court of Australia for an offence against a provision of this Act must not be instituted except with the written consent of the Minister, or of a person authorised in writing by the Minister to give such consents.

324B(2)
Subsection (1) does not apply to proceedings instituted by the Regulator or a person authorised in writing by the Regulator.

324B(3)
Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.

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SECTION 325 VESTING OF PROPERTY

325(1) [Property immediately vested in law or equity]

If an order is made by a court under this Act vesting property in a person:

(a) subject to subsections (2) and (3), the property immediately vests in law and in equity in the person named in the order by force of this Act; and

(b) if the order is made by a court - the person who applied for the order must, within 7 days after the entering of the order, lodge an office copy of the order with such person (if any) as is specified in the order.

325(2) [Registration of vesting order]

If:

(a) the property is of a kind whose transfer or transmission may be registered undera law of the Commonwealth, of a State or of a Territory; and

(b) that law enables the registration of such an order;

the property does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with.

325(3) [Registration of person named in order]

If:

(a) the property is of a kind whose transfer or transmission may be registered under a law of the Commonwealth, of a State or of a Territory; and

(b) that law enables the person named in the order to be registered as the owner of that property;

the property does not vest in that person at law until the requirements of the law referred to in paragraph (b) have been complied with.

PART 29 - EXEMPTIONS AND MODIFICATIONS

SECTION 326

326 OBJECT OF PART
The object of this Part is to empower the Regulator to grant exemptions from, and make modifications of, certain provisions of this Act and the regulations.

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326(2)

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(Repealed by No 123 of 2001)

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SECTION 327

327 INTERPRETATION

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In this Part:

modifiable provision
means any of the following:

(a) a provision of Part 2A, 2B or 3;

(aa) (Repealed by No 61 of 2013)

(b) (Repealed by No 61 of 2013)

(c) section 54;

(d) subsection 63(7B), (7C) or (7D);

(e) a provision of Part 9;

(g) a provision of Part 19 or 24;

(h) a provision of any regulations made for the purposes of a provision referred to in paragraphs (a) to (g).

Note:

For the definition of Regulator , see subsection 10(1).

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"temporarily modifiable provision"
(Repealed by No 123 of 2001)

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SECTION 328 REGULATOR'S POWERS OF EXEMPTION - MODIFIABLE PROVISIONS

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328(1) [Power to exempt]

The Regulator may, in writing, exempt from compliance with any or all of the modifiable provisions:

(a) a particular person or a class of persons; or

(b) a particular group of individual trustees or a class of groups of individual trustees.

328(2) [Certain exemptions not legislative instruments]

An exemption that applies to a particular person or group is not a legislative instrument.

328(3) [Exemptions that are legislative instruments]

Otherwise, an exemption is a legislative instrument.

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329 (Repealed) SECTION 329 REGULATOR'S POWERS OF EXEMPTION - TEMPORARILY MODIFIABLE PROVISIONS
(Repealed by No 123 of 2001)

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SECTION 330 REGULATOR'S POWERS OF EXEMPTION - GENERAL ISSUES

330(1) [Scope of exemption]

An exemption under this Part may be made either generally or as otherwise provided in the exemption.

330(2) [Conditional or unconditional exemption]

An exemption under this Part may be unconditional or subject to conditions specified in the exemption.

330(3) [Entities affected]

Without limiting this section, an exemption under this Part may relate to a particular superannuation entity or class of superannuation entities.

SECTION 331 ENFORCEMENT OF CONDITIONS TO WHICH EXEMPTION IS SUBJECT

331(1) [Prohibition]

A person must not, without reasonable excuse, contravene a condition of an exemption under this Part.

Penalty: 5 penalty units.

331(1A) [Strict liability]

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Subsection (1) 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.

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331(2) [Court may order compliance]

If a person has contravened a condition of an exemption under this Part, the Court may, on the application of the Regulator, order the person to comply with the condition.

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SECTION 332 REGULATOR'S POWERS OF MODIFICATION - MODIFIABLE PROVISIONS

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332(1) [Power to make declaration]

The Regulator may, in writing, declare that a modifiable provision is to have effect, as if it were modified as specified in the declaration, in relation to:

(a) a particular person or class of persons; or

(b) a particular group of individual trustees or a class of groups of individual trustees.

332(2) [Certain declarations not legislative instruments]

A declaration that applies to a particular person or group is not a legislative instrument.

332(3) [Declarations that are legislative instruments]

Otherwise, a declaration is a legislative instrument.

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333 (Repealed) SECTION 333 REGULATOR'S POWERS OF MODIFICATION - TEMPORARILY MODIFIABLE PROVISIONS
(Repealed by No 123 of 2001)

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SECTION 334 REGULATOR'S POWERS OF MODIFICATION - GENERAL ISSUES

334(1) [Scope of declaration]

A declaration under this Part may have effect either generally or as otherwise provided in the declaration.

334(2) [Entities affected]

Without limiting this section, a declaration under this Part may relate to a particular superannuation entity or class of superannuation entities.

SECTION 335

335 VARIATION AND REVOCATION OF EXEMPTIONS AND MODIFICATIONS

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The Regulator may, in writing, vary or revoke an exemption or declaration under this Part.

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SECTION 336

336 NOTICE OF EXEMPTIONS AND MODIFICATIONS

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If the Regulator:

(a) makes an exemption or modification under this Part that applies to a particular person or a particular group of individual trustees; or

(b) varies or revokes such an exemption or modification;

the Regulator must also notify the person or group in writing of the making, variation or revocation.

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PART 29A - PROTECTIONS IN RELATION TO INFORMATION

Note:

For protections for whistleblowers, see Part 9.4AAA of the Corporations Act 2001.

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(Repealed) Division 1 - Protection for whistleblowers

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336A (Repealed) SECTION 336A DISCLOSURES QUALIFYING FOR WHISTLEBLOWER PROTECTION
(Repealed by No 10 of 2019)

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336B (Repealed) SECTION 336B WHISTLEBLOWER PROTECTION FOR DISCLOSURES THAT QUALIFY
(Repealed by No 10 of 2019)

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336C (Repealed) SECTION 336C VICTIMISATION OF WHISTLEBLOWERS PROHIBITED
(Repealed by No 10 of 2019)

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336D (Repealed) SECTION 336D RIGHT TO COMPENSATION
(Repealed by No 10 of 2019)

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336E (Repealed) SECTION 336E CONFIDENTIALITY REQUIREMENT FOR COMPANY, COMPANY OFFICERS AND EMPLOYEES AND AUDITORS
(Repealed by No 10 of 2019)

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SECTION 336F SELF-INCRIMINATION

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336F(1)

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A person is not excused from complying with a requirement under this Act or the Financial Sector (Collection of Data) Act 2001 to give information to the Regulator on the ground that doing so would tend to incriminate the person or make the person liable to a penalty.

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336F(2)
However, if the person is an individual, the information given by the individual in compliance with the requirement is not admissible in evidence against the individual in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information, if:

(a) before giving the information, the individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and

(b) giving the information might in fact tend to incriminate the individual or make the individual liable to a penalty.

336F(3)

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This section does not apply in relation to a requirement under section 129, 129A, 130 or 130AA or under Part 25.

Note 1:

See section 130B in relation to requirements under section 129, 129A, 130 or 130AA.

Note 2:

See section 287 in relation to requirements under Part 25.

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(Repealed) PART 29B - EMPLOYERS TO GIVE INFORMATION ABOUT SUPERANNUATION CONTRIBUTIONS

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336J (Repealed) SECTION 336J OBJECT OF THIS PART
(Repealed by No 2 of 2015)

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336JA (Repealed) SECTION 336JA REQUIREMENT TO GIVE INFORMATION
(Repealed by No 2 of 2015)

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336JB (Repealed) SECTION 336JB REQUIREMENT IS A CIVIL REMEDY PROVISION UNDER THE FAIR WORK ACT
(Repealed by No 2 of 2015)

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336JC (Repealed) SECTION 336JC GEOGRAPHICAL APPLICATION OF THIS PART
(Repealed by No 2 of 2015)

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336JD (Repealed) SECTION 336JD COMPLIANCE WITH THE REQUIREMENT
(Repealed by No 2 of 2015)

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336JE (Repealed) SECTION 336JE DISCLOSING INFORMATION RELATING TO THIS PART
(Repealed by No 2 of 2015)

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SECTION 336JF

336JF ALTERNATIVE CONSTITUTIONAL BASIS
(Repealed by No 2 of 2015)

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PART 30 - MISCELLANEOUS

SECTION 337

337 OBJECT OF PART
The object of this Part is to set out miscellaneous rules about various matters relating to the operation of this Act.

SECTION 337A

337A TRUSTEE MAY GIVE EFFECT TO AWARD MADE UNDER ARBITRATION AGREEMENT

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If:

(a)

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the former Superannuation Complaints Tribunal made an award in an arbitration conducted under an arbitration agreement entered into under the former Part 7A of the Superannuation (Resolution of Complaints) Act 1993; and

(b) the award is still in force;

nothing in this Act or any other law of the Commonwealth, in any law of a State or Territory (whether written or unwritten) or in the governing rules of a fund, scheme or trust prevents a trustee of a fund, scheme or trust from giving effect to the award.

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SECTION 338 CONDUCT BY DIRECTORS, SERVANTS AND AGENTS

338(1) State of mind of body corporate.

If, in proceedings for an offence against this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

338(2) Conduct of director, servant or agent.

Subject to subsection (3), any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the body corporate.

338(3) Exception to (2).

Subsection (2) does not apply if the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

338(4) State of mind of individual.

If, in proceedings for an offence against this Act, it is necessary to establish the state of mind of an individual in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a servant or agent of the individual within the scope of actual or apparent authority; and

(b) that the servant or agent had the state of mind.

338(5) Conduct of servant or agent.

Subject to subsection (6), any conduct engaged in on behalf of an individual by a servant or agent of the individual within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the individual.

338(6) Exception to (5).

Subsection (5) does not apply if the individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

338(7) No imprisonment in (4) or (5) cases.

If:

(a) an individual is convicted of an offence; and

(b) the individual would not have been convicted of the offence if subsections (4) and (5) had not been enacted;

the individual is not liable to imprisonment for that offence.

338(8) Reference to state of mind .

A reference in subsection (1) or (4) to the state of mind of a person includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person's reasons for the intention, opinion, belief or purpose.

338(9) Reference to director .

A reference in this section to a director of a body corporate includes a reference to a constituent member of, or to a member of a board or other group of persons administering or managing the affairs of, a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

338(10) Reference to engaging in conduct .

A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

338(11) Reference to offence against this Act .

A reference in this section to an offence against this Act includes a reference to:

(a) an offence created by the regulations; and

(b) an offence created by section 6 of the Crimes Act 1914, being an offence that relates to this Act or the regulations.

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338(12) Part 2.5 of the Criminal Code not to apply.

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Part 2.5 of the Criminal Code does not apply in relation to an offence against this Act.

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SECTION 338A

338A LIABILITY OF TRUSTEES REQUIRED TO ENSURE THING OCCURS

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A person who is a member of a group of individual trustees is not liable under any offence of strict liability or civil penalty provision of this Act or the regulations in respect of any contravention resulting from a failure by the person to ensure that a particular thing occurs if the person proves that he or she:

(a) made all inquiries (if any) that were reasonable in the circumstances; and

(b) after doing so, believed on reasonable grounds that his or her obligations were being complied with.

Note:

In a prosecution for an offence of strict liability against a provision of this Act or the regulations, a defendant bears a legal burden in relation to the matters in this section (see section 13.4 of the Criminal Code).

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SECTION 339 CONVICTION DOES NOT RELIEVE DEFENDANT FROM CIVIL LIABILITY

339(1) [Liability of person]

A person is not relieved from any liability to any other person merely because the person has been convicted of an offence against this Act.

339(2) [Civil penalty provision]

This section does not apply in relation to a contravention of a civil penalty provision.

339(3) ["offence against this Act"]

In this section:

offence against this Act
has the same meaning as in section 338.

340 (Repealed) SECTION 340 LIABILITY FOR DAMAGES
(Repealed by No 54 of 1998)

SECTION 341

341 CIVIL IMMUNITY WHERE DEFENDANT WAS COMPLYING WITH THIS ACT

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A person is not liable in a civil action or civil proceeding in relation to an act done in fulfilment of an obligation imposed by this Act, the regulations or the prudential standards.

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SECTION 342 PRE-1 JULY 88 FUNDING CREDITS AND DEBITS

342(1) [Application for pre-1 July 88 funding credit]

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A trustee of a fund may apply to APRA for a pre-1 July 88 funding credit.

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342(2) [Conditions for pre-1 July 88 funding credit]

If an application is made for a pre-1 July 88 funding credit, APRA must give a written notice to the applicant granting a pre-1 July 88 funding credit of a specified amount if APRA is satisfied that:

(a) the amount consists of, or is the total of, amounts that, under the regulations, are treated as pre-1 July 88 funding amounts; and

(b) paragraph 23(jaa) or section 23FC of the Income Tax Assessment Act, as in force immediately before the commencement of the Taxation Laws Amendment Act (No. 2) 1989, would have applied to the fund in relation to the 1987-88 year of income, if the amendments made by that last-mentioned Act had not been made.

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342(3) [Form and content of application]

An application:

(a) must be in the approved form; and

(b) must be made on or before the day ascertained in accordance with the regulations; and

(c) must contain such information relating to the fund as is required by the form to be provided; and

(d) must be accompanied by:

(i) such certificates and other documents as the form requires; and

(ii) the prescribed application fee.

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342(4) [Failure of trustee to notify prescribed event]

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If:

(a) a prescribed event has occurred (whether before or after the commencement of this section) in relation to a fund, being an event that relates to:

(i) the membership of the fund; or

(ii) benefits provided by the fund; and

(b) a trustee of the fund fails to notify APRA of the event within the time and in the manner prescribed;

APRA must give written notice to a trustee of the fund accordingly.

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342(5) [Notification prescribed by regulations]

Regulations made for the purposes of paragraph (4)(b) may:

(a) require a notification to be accompanied by such information as is prescribed; and

(b) enable APRA to grant an extension of time for lodging a notification.

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342(6) [Conditions for pre-1 July 88 funding debit]

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If:

(a) an event prescribed for the purposes of paragraph (4)(a) has occurred (whether before or after the commencement of this section) in relation to a fund; and

(b) a trustee of the fund notifies APRA of the event as and when required by regulations made for the purposes of paragraph (4)(b); and

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(c) APRA is satisfied that, in accordance with the regulations, a pre-1 July 88 funding debit of a particular amount should arise in relation to the fund;

APRA may give to a trustee of the fund a written notice granting the trustee of the fund a pre-1 July 88 funding debit of that amount.

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342(7) [Transfer of credits]

The regulations may make provision for and in relation to the transfer of pre-1 July 88 funding credits between funds.

342(8) [Regulations re transfer of credits]

Without limiting the generality of subsection (7), the regulations made for the purposes of that subsection must make provision for:

(a) the giving by APRA of a notice approving the transfer of a pre-1 July 88 funding credit of a fund to another fund; and

(b) the revocation of such a notice; and

(c) requiring notification of such a revocation and of the reasons for the revocation.

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342(9) [Revocation of credit or debit]

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If:

(a) APRA has, under subsection (2) or (6), given a notice to a trustee of a fund; and

(b) APRA, after considering information that was not previously considered by APRA, ceases to be satisfied as mentioned in the subsection concerned;

APRA must give written notice to a trustee of the fund revoking the notice.

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342(10) [Refusal of application]

If APRA refuses an application under subsection (1), APRA must give written notice to the applicant of the refusal.

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342(11) [Notice of revocation or refusal]

A notice under subsection (9) or (10) must set out the reasons for the revocation or refusal, as the case requires.

342(12) [Particulars to Commissioner of Taxation]

APRA must give to the Commissioner of Taxation particulars of all notices given under this section or under regulations made for the purposes of subsection (7).

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342(13) ["fund"]

In this section:

fund
means a superannuation fund.

SECTION 343

343 RULES AGAINST PERPETUITIES NOT TO APPLY TO SUPERANNUATION ENTITY
The rules of law relating to perpetuities do not apply, and are taken never to have applied, to the trusts of any superannuation entity, whether the entity was established before, or is established after, the commencement of this section.

SECTION 344 REVIEW OF CERTAIN DECISIONS
Request for review

344(1)

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A person who is affected by a reviewable decision of the Regulator or the Registrar may, if dissatisfied with the decision, request the decision maker to reconsider the decision.

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How request must be made

344(2)

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The request must be made by written notice given to the decision maker within the period of 21 days after the day on which the person first receives notice of the decision, or within such further period as the decision maker allows.

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344(2A)

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If the Registrar is the decision maker, the request must meet any requirements of the data standards.

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Request must set out reasons

344(3)
The request must set out the reasons for making the request.

Decision maker to reconsider decision

344(4)

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Upon receipt of the request, the decision maker must reconsider the decision and may, subject to subsection (5), confirm or revoke the decision or vary the decision in such manner as the decision maker thinks fit.

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Deemed confirmation of decision if delay

344(5)

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If the decision maker does not confirm, revoke or vary a decision before the end of the period of 60 days after the day on which the decision maker received the request under subsection (1) to reconsider the decision, the decision maker is taken, at the end of that period, to have confirmed the decision under subsection (4).

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Notice of Decision maker's action

344(6)

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If the decision maker confirms, revokes or varies a decision before the end of the period referred to in subsection (5), the decision maker must give written notice to the person telling the person:

(a) the result of the reconsideration of the decision; and

(b) the reasons for confirming, varying or revoking the decision, as the case may be.

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Notice to Commissioner of Taxation if Regulator is decision maker

344(7)

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If the Regulator is the decision maker and the Regulator gives a notice to a person under subsection (6) telling the person that a decision under section 40 has been revoked or varied, the Regulator must give to the Commissioner of Taxation particulars of the notice.

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ART review

344(8)

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Applications may be made to the Administrative Review Tribunal for review of decisions that have been confirmed or varied under subsection (4).

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Period for making certain Administrative Review Tribunal applications

344(9)

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If a decision is taken to be confirmed because of subsection (5) then, despite section 18 (when to apply - general rule) of the Administrative Review Tribunal Act 2024, an application to the Administrative Review Tribunal must be made within 28 days beginning on the day on which the decision is taken to be confirmed.

Note:

A person may, under section 19 the Administrative Review Tribunal Act 2024, apply to the Administrative Review Tribunal to extend the period.

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Continued operation of decision despite request for review

344(10)

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If a request is made under subsection (1) in respect of a reviewable decision, section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the Administrative Review Tribunal Act 2024 applies as if the making of the request were the making of an application to the Administrative Review Tribunal for a review of that decision.

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344(11)

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An order must not be made under subsection 32(2) of the Administrative Review Tribunal Act 2024 in respect of a reviewable decision except by the Administrative Review Tribunal.

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Only trustees affected by certain reviewable decisions

344(12)

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For the purposes of this section and section 345, a person is taken not to be affected by a reviewable decision (other than a reviewable decision covered by paragraph (dd), (de), (df), (dg), (dl), (dm), (dn), (doa), (dob), (dod), (q), (qa), (qb), (r), (ra), (rb), (rc), (rd), (re), (rf), (rg), (rh), (ri), (s), (t), (ua) or (ub) of the definition of reviewable decision in section 10) unless the person is a trustee of a superannuation entity that is affected by the decision.

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SECTION 345 STATEMENTS TO ACCOMPANY NOTIFICATION OF DECISIONS

345(1)
If a written notice is given to a person affected by a reviewable decision telling the person that the reviewable decision has been made, that notice is to include a statement to the effect that:

(a)

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the person may, if dissatisfied with the decision, seek a reconsideration of the decision by the Regulator or the Registrar, as the case may be, in accordance with subsection 344(1); and

(b)

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the person may, subject to the Administrative Review Tribunal Act 2024, if dissatisfied with a decision made by the Regulator or the Registrar, as the case may be, upon that reconsideration confirming or varying the first-mentioned decision, make application to the Administrative Review Tribunal for review of the decision so confirmed or varied.

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345(2)

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If the Regulator or the Registrar confirms or varies a reviewable decision under subsection 344(4) and gives to the person written notice of the confirmation or variation of the decision, that notice is to include a statement to the effect that the person may, subject to the Administrative Review Tribunal Act 2024, if dissatisfied with the decision so confirmed or varied, make application to the Administrative Review Tribunal for review of the decision.

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345(3)
A failure to comply with the requirements of subsections (1) and (2) in relation to a reviewable decision or a decision under subsection 344(4) does not affect the validity of that decision.

346 (Repealed) SECTION 346 SECRECY
(Repealed by No 54 of 1998)

SECTION 347

347 HOW INFORMATION MAY BE GIVEN TO THE COMMISSIONER OF TAXATION
If a provision of this Act requires or authorises the Regulator to give information to the Commissioner of Taxation, the information may be given by means of a data processing device.

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SECTION 347A THE REGULATOR MAY COLLECT STATISTICAL INFORMATION

347A(1) Collection.

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The Regulator may collect such statistical information about superannuation entities as the Regulator considers appropriate.

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347A(2) Survey forms.

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For the purposes of subsection (1), the Regulator may, by writing, approve one or more forms (the survey forms ).

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347A(3) Instructions in survey forms.

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A survey form must contain instructions about the following matters:

(a) filling up and supply of the particulars specified in the form;

(b) giving the filled-up form to a person (the authorised recipient ) specified in the instructions.

The authorised recipient must be the Regulator or a delegate of the Regulator.

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347A(4) Notice to trustee about participation in the Regulator's statistics program.

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The Regulator may, by written notice given to a trustee of a superannuation entity, determine that the trustee is a participant, or trustees of the entity are participants in the Regulator's statistics program. The notice must set out the effect of subsections (5) and (6).

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347A(5) Obligations of participants in the Regulator's statistics program.

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At any time when a determination under subsection (4) is in force in relation to a trustee of a superannuation entity, the Regulator may give the trustee a survey form. In that event, the trustee must:

(a) fill up and supply, in accordance with the instructions contained in the form, the particulars specified in the form; and

(b) give the filled-up form to the authorised recipient in accordance with those instructions.

Note:

Section 166 imposes an administrative penalty for a contravention of subsection (5) in relation to a self managed superannuation fund.

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347A(6)

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A trustee commits an offence if the trustee contravenes subsection (5).

Penalty: 50 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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347A(7) Survey form and determination may be given at the same time.

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For the purposes of subsection (5), if a determination under subsection (4) is given to a trustee of a superannuation entity at the same time as a survey form, the determination is taken to have been in force at the time when the survey form was given to the trustee.

[ CCH Note: No 54 of 1998, s 3 and Sch 16items 31 and 135, provided for the substitution in s 347A(7) of "APRA" for "The Commissioner" and "the Commissioner" (wherever occurring). This amendment could not be effected because neither of those phrases occurs in s 347A(7).]

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347A(8) Survey period.

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The particulars specified in a survey form must relate to one or more specified periods (the survey periods ). The instructions contained in a survey form must not require a trustee to give the filled-up form to the authorised recipient before the 28th day after:

(a) the end of the survey period; or

(b) if there is more than one survey period - the end of the most recent survey period.

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347A(9) Extension of lodgment period - particular survey forms.

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The Regulator may extend the period within which a particular filled-up form is to be given to the authorised recipient.

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347A(10) Extension of lodgment period - general.

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The Regulator may, by notifiable instrument, extend the period within which a specified class of filled-up survey forms is to be given to the authorised recipient.

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347A(11) Delegation.

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The Regulator may, by writing, delegate to a person any or all of the Commissioner's powers under this section.

[ CCH Note: No 54 of 1998 did not amend 347A(11) by substituting "APRA's" for "the Commissioner's".]

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347A(12) Section does not limit other powers.

This section does not, by implication, limit:

(a) any other provision of this Act; or

(b) anything in the Census and Statistics Act 1905.

347A(13)

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In this section:

Regulator
means the Commissioner of Taxation.

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SECTION 348 THE REGULATOR MAY PUBLISH STATISTICAL INFORMATION

348(1)

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Subject to subsection (2), the Regulator may arrange for the publication of statistical information relating to superannuation entities or relating to payments made to persons.

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348(2)

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The Regulator must not arrange for the publication of statistical information in a manner that enables the identification of:

(a) a superannuation entity; or

(b) a person.

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348(3)

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The Regulator may determine that fees are to be paid in respect of the supply of publications in accordance with this section.

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348(4)

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In this section:

Regulator
means the Commissioner of Taxation.

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SECTION 348A QUARTERLY REPORTS ABOUT SUPERANNUATION

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348A(1)
As soon as practicable after the end of each quarter, the Regulator must publish the following information on its website in respect of the quarter:

(a) the fees charged in relation to MySuper products, on a product by product basis;

(b) the costs incurred in relation to MySuper products, on a product by product basis;

(c) the net returns to beneficiaries of regulated superannuation funds who hold MySuper products, on a product by product basis;

(d) any other information prescribed by the regulations.

348A(2)
The Regulator must not publish the information in a manner that enables the identification of a beneficiary of a regulated superannuation fund.

[ CCH Note: There is no s 348A(3).]

348A(4)
In this section:

Regulator
means APRA.

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SECTION 349

349 THIS ACT AND THE REGULATIONS TO BE SUBJECT TO CERTAIN SUPERANNUATION ORDERS

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This Act, the regulations and the prudential standards apply in relation to a regulated superannuation fund subject to the effect of any superannuation order within the meaning of the Australian Federal Police Act 1979 or the Crimes (Superannuation Benefits) Act 1989 that is made in respect of any member of the fund.

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SECTION 349A

349A PAYMENT OUT OF A FUND IN ACCORDANCE WITH THE BANKRUPTCY ACT 1966

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If a member of an approved deposit fund or of a regulated superannuation fund becomes a bankrupt, withinthe meaning of subsection 5(1) of the Bankruptcy Act 1966, nothing in this Act, the regulations or the prudential standards prevents a trustee of the fund from paying to the trustee in bankruptcy an amount out of the fund that is property divisible amongst the member's creditors, within the meaning of section 116 of the Bankruptcy Act 1966.

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SECTION 349B ACQUISITION OF PROPERTY

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349B(1)
This Act does not apply to the extent (if any) that its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).

349B(2)
The following subsections do not limit subsection (1).

349B(3)
If, apart from this section, this Act would result in such an acquisition of property because:

(a) it would require a person to take action in relation to an accrued default amount; or

(b) it would require a person to take action in relation to an asset of the kind mentioned in subparagraph 29SAB(a)(i); or

(c) it would require a person to take action in relation to an amount held in an entity that is or was an eligible rollover fund;

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then despite any other provision of this Act, the person is not required to take that action.

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349B(4)

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If, apart from this section, this Act would result in such an acquisition of property because it would prevent the charging of a fee of a kind mentioned in paragraph 29SAC(1)(a) or 242C(1)(a), then despite any other provision of this Act, the person is not prevented from charging that fee.

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349B(5)
If, apart from this section, this Act would result in such an acquisition of property because it would require or permit a person to use, disclose or publish information, then despite any other provision of this Act, the person is not required or permitted to use, disclose or publish the information in the circumstances that would result in such an acquisition.

349B(6)
If, apart from this section, this Act would result in such an acquisition of property because it excuses a person from liability, then despite any other provision of this Act, the person is not excused from the liability.

349B(6A)

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If, apart from this section, this Act would result in such an acquisition of property because it would require a person to comply with a direction given under this Act, then despite any other provision of this Act, the person is not required to comply with the direction in circumstances that would result in such an acquisition.

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349B(7)
To avoid doubt, any provision that does not result in an acquisition of property continues to apply in relation to:

(a) action in relation to accrued default amounts; and

(b) action in relation to an asset of the kind mentioned in subparagraph 29SAB(a)(i); and

(ba) action in relation to an amount held in an entity that is or was an eligible rollover fund; and

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(c) the charging of a fee of a kind mentioned in paragraph 29SAC(1)(a) or 242C(1)(a); and

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(d) the use, disclosure and publication of information; and

(e) a liability; and

(f) a direction given under this Act.

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SECTION 350

350 CONCURRENT OPERATION OF STATE/TERRITORY LAWS
It is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent that that law is capable of operating concurrently with this Act.

351 (Repealed) SECTION 351 ADDITIONAL FUNCTIONS OF THE CHIEF EXECUTIVE MEDICARE
(Repealed by No 23 of 2018)

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352 (Repealed) SECTION 352 ANNUAL REPORTS
(Repealed by No 54 of 1998)

SECTION 353 REGULATIONS

353(1)
The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and without limiting the generality of the above, may make regulations:

(c) prescribing fees in respect of any matter under this Act; and

(d) prescribing penalties not exceeding 10 penalty units in respect of offences against the regulations.

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353(2)
Without limiting the generality of subsection (1), the regulations may make provision for and inrelation to the keeping of one or more registers by the Regulator, where the registers relate to matters arising under this Act or the regulations. In particular, the regulations may make provision for the following:

(a) a register to be kept in such form and manner as the Regulator directs;

(b) persons to inspect a register;

(c) persons to obtain information contained in a register;

(d) fees to be charged for such an inspection or for providing such information.

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(Repealed) PART 31 - TRANSITION TO SCHEME PROVIDED FOR IN THIS ACT

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(Repealed) Division 1 - Object of Part

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354 (Repealed) SECTION 354 OBJECT OF PART
(Repealed by No 154 of 2007)

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(Repealed) Division 2 - Entities that have a management company and a trustee

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(Repealed) Subdivision A - General

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355 (Repealed) SECTION 355 ENTITY TO WHICH DIVISION APPLIES
(Repealed by No 154 of 2007)

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356 (Repealed) SECTION 356 INTERPRETATION
(Repealed by No 154 of 2007)

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(Repealed) Subdivision B - Existing management company may retire

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357 (Repealed) SECTION 357 EXISTING MANAGEMENT COMPANY MAY GIVE NOTICE OF RETIREMENT
(Repealed by No 154 of 2007)

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358 (Repealed) SECTION 358 EFFECT OF NOTICE UNDER SECTION 357
(Repealed by No 154 of 2007)

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359 (Repealed) SECTION 359 ACTION TO BE TAKEN BY EXISTING TRUSTEE ON RECEIPT OF NOTICE UNDER SECTION 357
(Repealed by No 154 of 2007)

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360 (Repealed) SECTION 360 APRA TO APPOINT NEW TRUSTEE IF RECEIVES NOTICE UNDER SUBSECTION 359(2)
(Repealed by No 154 of 2007)

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361 (Repealed) SECTION 361 EFFECT OF NOTICE UNDER SUBSECTION 359(2)
(Repealed by No 154 of 2007)

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362 (Repealed) SECTION 362 WHAT HAPPENS IF EXISTING TRUSTEE FAILS TO GIVE A NOTICE UNDER SUBSECTION 359(2) OR (3)
(Repealed by No 154 of 2007)

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(Repealed) Subdivision C - Existing trustee may retire

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363 (Repealed) SECTION 363 EXISTING TRUSTEE MAY GIVE NOTICE OF RETIREMENT
(Repealed by No 154 of 2007)

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364 (Repealed) SECTION 364 ACTION TO BE TAKEN BY EXISTING MANAGEMENT COMPANY ON RECEIPT OF NOTICE UNDER SECTION 363
(Repealed by No 154 of 2007)

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365 (Repealed) SECTION 365 APRA TO APPOINT NEW TRUSTEE
(Repealed by No 154 of 2007)

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366 (Repealed) SECTION 366 EFFECT OF NOTICE UNDER SECTION 363 ON TRUSTEE
(Repealed by No 154 of 2007)

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367 (Repealed) SECTION 367 EFFECT OF NOTICE UNDER SECTION 363 ON MANAGEMENT COMPANY
(Repealed by No 154 of 2007)

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368 (Repealed) SECTION 368 NOTICES UNDER SECTIONS 363 AND 364 HAVE NO EFFECT EXCEPT AS PROVIDED IN THIS DIVISION
(Repealed by No 154 of 2007)

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369 (Repealed) SECTION 369 WHAT HAPPENS IF EXISTING MANAGEMENT COMPANY FAILS TO GIVE A NOTICE UNDER SUBSECTION 364(2) OR (3)
(Repealed by No 154 of 2007)

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(Repealed) Subdivision D - What happens if existing management company or existing trustee stops holding office otherwise than under this Division

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370 (Repealed) SECTION 370 EXISTING MANAGEMENT COMPANY CEASES TO HOLD OFFICE FIRST
(Repealed by No 154 of 2007)

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371 (Repealed) SECTION 371 EXISTING TRUSTEE CEASES TO HOLD OFFICE FIRST
(Repealed by No 154 of 2007)

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372 (Repealed) SECTION 372 EXISTING TRUSTEE CANNOT CEASE TO HOLD OFFICE AT SAME TIME AS EXISTING MANAGEMENT COMPANY
(Repealed by No 154 of 2007)

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(Repealed) Subdivision E - Special provisions in relation to the transitional period

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373 (Repealed) SECTION 373 INTERPRETATION
(Repealed by No 154 of 2007)

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374 (Repealed) SECTION 374 EXISTING TRUSTEE TAKEN TO BE AN APPROVED TRUSTEE
(Repealed by No 154 of 2007)

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375 (Repealed) SECTION 375 APPLICATION OF SECTION 153 DURING THE TRANSITIONAL PERIOD
(Repealed by No 123 of 2001)

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376 (Repealed) SECTION 376 REGULATIONS MAY MODIFY APPLICATION OF ACT AND APPLY PROVISIONS OF THE CORPORATIONS LAW ETC.
(Repealed by No 154 of 2007)

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(Repealed) Subdivision F - Miscellaneous

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377 (Repealed) SECTION 377 NEW TRUSTEE TO NOTIFY APPOINTMENT TO MEMBERS
(Repealed by No 154 of 2007)

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378 (Repealed) SECTION 378 CIVIL IMMUNITY FOR ACTIONS UNDER DIVISION
(Repealed by No 154 of 2007)

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379 (Repealed) SECTION 379 DIVISION HAS EFFECT DESPITE ANYTHING IN ANY OTHER PART OF THIS ACT ETC.
(Repealed by No 154 of 2007)

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(Repealed) Division 3 - Regulations may make other transitional provisions

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380 (Repealed) SECTION 380 REGULATIONS MAY MAKE OTHER TRANSITIONAL PROVISIONS
(Repealed by No 154 of 2007)

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PART 32 - ADDITIONAL TRANSITIONAL PROVISIONS - TAX FILE NUMBERS

SECTION 381

381 OBJECT OF PART
The object of this Part is to allow a member of a fund, scheme or trust to quote his or her tax file number to the trustee before the commencement of Parts 22 and 24. Those Parts commence on 1 July 1994.

Note:

Part 22 was repealed by the Superannuation (Unclaimed Money and Lost Members) Consequential and Transitional Act 1999.

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382 (Repealed) SECTION 382 QUOTATION OF TAX FILE NUMBER
(Repealed by No 49 of 2019)

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SECTION 383 PRE-1 JULY 1994 QUOTATION OF TAX FILE NUMBER TO BE TREATED AS IF MADE UNDER PROVISIONS COMMENCING ON 1 JULY 1994

383(1)

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This section applies if a beneficiary or member of a fund, scheme or trust quotes his or her tax file number to the trustee under section 382 as in force immediately before its repeal by the Treasury Laws Amendment (2019 Measures No. 1) Act 2019.

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383(2)
This Act has effect, after 30 June 1994, as if the beneficiary or member had quoted that tax file number to the trustee under subsections 225(4) and 245(2), as in force immediately before their repeal by the Taxation Laws Amendment Act (No. 2) 1996, immediately after the beginning of 1 July 1994.

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384 (Repealed) SECTION 384 PRE-1 JULY 1994 QUOTATION OF TAX FILE NUMBER - REQUEST FOR QUOTATION, OR RECORDING, OF NUMBER NOT PROHIBITED BY THE TAXATION ADMINISTRATION ACT 1953
(Repealed by No 49 of 2019)

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385 (Repealed) SECTION 385 PRE-1 JULY 1994 QUOTATION OF TAX FILE NUMBER - OBJECTS OF TAX FILE NUMBER SYSTEM
(Repealed by No 49 of 2019)

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(Repealed) PART 33 - ADDITIONAL TRANSITIONAL PROVISIONS RELATING TO MYSUPER

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(Repealed) Division 1 - Moving accrued default amounts to MySuper products

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386 (Repealed) SECTION 386 OBJECT
(Repealed by No 135 of 2020)

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387 (Repealed) SECTION 387 ELECTION TO TRANSFER ACCRUED DEFAULT AMOUNTS
(Repealed by No 135 of 2020)

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388 (Repealed) SECTION 388 TRANSFER TO MYSUPER PRODUCTS
(Repealed by No 135 of 2020)

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(Repealed) Division 2 - Miscellaneous

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389 (Repealed) SECTION 389 PRUDENTIAL STANDARDS DEALING WITH TRANSITIONAL MATTERS
(Repealed by No 135 of 2020)

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390 (Repealed) SECTION 390 REGULATIONS DEALING WITH TRANSITIONAL, SAVINGS AND APPLICATION MATTERS
(Repealed by No 135 of 2020)

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(Repealed) PART 34 - ADDITIONAL TRANSITIONAL PROVISIONS RELATING TO ELIGIBLE ROLLOVER FUNDS

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391 (Repealed) SECTION 391 DEFINITIONS
(Repealed by No 135 of 2020)

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392 (Repealed) SECTION 392 AUTHORITY TO OPERATE AN ELIGIBLE ROLLOVER FUND GIVEN BEFORE 1 JANUARY 2014
(Repealed by No 135 of 2020)

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393 (Repealed) SECTION 393 OPERATION OF EXISTING ERFS AFTER COMMENCEMENT
(Repealed by No 135 of 2020)

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394 (Repealed) SECTION 394 MOVING AMOUNTS HELD IN EXISTING ERFS
(Repealed by No 135 of 2020)

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New references to court orders to include references to disqualifications by the Regulator
References
Item	Column 1 Reference	Column 2 Provision of the Superannuation Industry (Supervision) Act	Column 3 Reference taken to be included
1	an individual disqualified under section 126A by the Commissioner of Taxation	subparagraph 120(1)(c)(i)	an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1)
2	an individual disqualified under section 126H by the Federal Court of Australia	subparagraph 120(1)(c)(ii)	an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2)
3	an individual disqualified under section 126H	paragraph 126J(1)(a)	an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2)
4	an order made under section 126H	paragraph 126J(1)(a) and subsection 126J(2)	a disqualification made by APRA under section 120A that is continued in force under subitem (2)
5	a person disqualified under section 130D	section 130E, section 131C	a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3)
6	an order made under section 130D	section 130E	a disqualification made by APRA under section 131 that is continued in force under subitem (3)

New references to court orders to include references to disqualifications by the Regulator
References
Item	Column 1 Reference	Column 2 Provision of the Superannuation Industry (Supervision) Act	Column 3 Reference taken to be included
1	an individual disqualified under section 126A by the Commissioner of Taxation	subparagraph 120(1)(c)(i)	an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1)
2	an individual disqualified under section 126H by the Federal Court of Australia	subparagraph 120(1)(c)(ii)	an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2)
3	an individual disqualified under section 126H	paragraph 126J(1)(a)	an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2)
4	an order made under section 126H	paragraph 126J(1)(a) and subsection 126J(2)	a disqualification made by APRA under section 120A that is continued in force under subitem (2)
5	a person disqualified under section 130D	section 130E, section 131C	a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3)
6	an order made under section 130D	section 130E	a disqualification made by APRA under section 131 that is continued in force under subitem (3)

New references to court orders to include references to disqualifications by the Regulator
References
Item	Column 1 Reference	Column 2 Provision of the Superannuation Industry (Supervision) Act	Column 3 Reference taken to be included
1	an individual disqualified under section 126A by the Commissioner of Taxation	subparagraph 120(1)(c)(i)	an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1)
2	an individual disqualified under section 126H by the Federal Court of Australia	subparagraph 120(1)(c)(ii)	an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2)
3	an individual disqualified under section 126H	paragraph 126J(1)(a)	an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2)
4	an order made under section 126H	paragraph 126J(1)(a) and subsection 126J(2)	a disqualification made by APRA under section 120A that is continued in force under subitem (2)
5	a person disqualified under section 130D	section 130E, section 131C	a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3)
6	an order made under section 130D	section 130E	a disqualification made by APRA under section 131 that is continued in force under subitem (3)

New references to court orders to include references to disqualifications by the Regulator
References
Item	Column 1 Reference	Column 2 Provision of the Superannuation Industry (Supervision) Act	Column 3 Reference taken to be included
1	an individual disqualified under section 126A by the Commissioner of Taxation	subparagraph 120(1)(c)(i)	an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1)
2	an individual disqualified under section 126H by the Federal Court of Australia	subparagraph 120(1)(c)(ii)	an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2)
3	an individual disqualified under section 126H	paragraph 126J(1)(a)	an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2)
4	an order made under section 126H	paragraph 126J(1)(a) and subsection 126J(2)	a disqualification made by APRA under section 120A that is continued in force under subitem (2)
5	a person disqualified under section 130D	section 130E, section 131C	a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3)
6	an order made under section 130D	section 130E	a disqualification made by APRA under section 131 that is continued in force under subitem (3)

New references to court orders to include references to disqualifications by the Regulator
References
Item	Column 1 Reference	Column 2 Provision of the Superannuation Industry (Supervision) Act	Column 3 Reference taken to be included
1	an individual disqualified under section 126A by the Commissioner of Taxation	subparagraph 120(1)(c)(i)	an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1)
2	an individual disqualified under section 126H by the Federal Court of Australia	subparagraph 120(1)(c)(ii)	an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2)
3	an individual disqualified under section 126H	paragraph 126J(1)(a)	an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2)
4	an order made under section 126H	paragraph 126J(1)(a) and subsection 126J(2)	a disqualification made by APRA under section 120A that is continued in force under subitem (2)
5	a person disqualified under section 130D	section 130E, section 131C	a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3)
6	an order made under section 130D	section 130E	a disqualification made by APRA under section 131 that is continued in force under subitem (3)

Part No.	*Matter dealt with*
1	interpretation
2	(Repealed by No 53 of 2004)
2A	licensing of trustees and groups of individual trustees
2B	registrable superannuation entities
2C	MySuper
3	operating standards for funds and trusts
3A	Prudential standards concerning registrable superannuation entities
3B	superannuation data and payment standards for funds and employers
4	accounts, audit and reporting obligations for superannuation entities
5	notices about complying fund status
6	governing rules of funds and trusts
7	rules applying only to regulated superannuation funds
8	in-house asset rules applying to regulated superannuation funds
9	equal representation of employers and members in relation to employer-sponsored funds
10	rules applying only to approved deposit funds
11	rules applying only to pooled superannuation trusts
11A	General fees rules
12	statutory duties of trustees of superannuation entities
13	(Repealed by No 154 of 2007)
14	other provisions relating to funds and trusts
15	standards for trustees, custodians and investment managers of superannuation entities
16	actuaries and auditors of superannuation entities
16A	APRA's powers to issue directions
17	suspension or removal of trustees of superannuation entities
18	amalgamation of funds
19	rules about dealing with superannuation interests in public offer entities
20	administrative directions and penalties for contraventions relating to self managed superannuation funds
21	civil and criminal consequences of serious breaches of the Act
22	infringement notices
23	financial assistance to funds that suffer loss as a result of fraud or theft
24	eligible rollover funds
24A	transitional provisions relating to pre-1 July 1995 automatic rollovers of benefits between funds
24B	the administration by APRA and the Commissioner of Taxation of superannuation funds with fewer than 5 members
25	monitoring and investigating superannuation entities
25A	tax file numbers
26	offences relating to statements and records
27	powers of courts
28	judicial and other proceedings under the Act
29	exemption and modification provisions
29A	protections in relation to information
29B	(Repealed by No 2 of 2015)
30	miscellaneous provisions
31	(Repealed by No 154 of 2007)
32	additional transitional provisions relating to tax file numbers
33	additional transitional provisions relating to MySuper
34	additional transitional provisions relating to eligible rollover funds

24	Section 64A	compliance with tribunal determination	(a)	the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and
			(b)	ASIC, to the remaining extent

Registered relationships
Item	Column 1 Law	Column 2 Kind of relationship
1	Relationships Register Act 2010 (NSW)	A relationship that may be registered in accordance with Part 2 of that Act
2	Relationships Act 2008 (Vic.)	A registrable domestic relationship that may be registered in accordance with Part 2.2 of that Act
3	Civil Partnerships Act 2011 (Qld)	A relationship that may be entered into in accordance with sections 4 and 5 of that Act
4	Relationships Register Act 2016 (SA)	A relationship that may be registered in accordance with Part 2 of that Act
5	Relationships Act 2003 (Tas.)	A significant relationship in relation to which a deed of relationship may be registered in accordance with Part 2 of that Act
6	Domestic Relationships Act 1994 (ACT)	A civil partnership that may be entered into in accordance with sections 37C and 37D of that Act
7	Births, Deaths and Marriages Registration Act 1997 (ACT)	A civil union that must be registered under section 32A of that Act

Fee cap percentage	×	Member's account balance for the product on the last day of the year	×	Number of days in the transition period
				365

Fee cap for the whole year	×	Number of days during the transition period on which member held the product
		Number of days in the transition period

6	Notifying the Registrar of an event under section 128H within 1 month after the notification was due	The person giving the notification
7	Notifying the Registrar of an event under section 128H more than 1 month after the notification was due	The person giving the notification

Standing, jurisdiction and maximum penalty
	Column 1 Civil remedy provision	Column 2 Persons	Column 3 Courts	Column 4 Maximum penalty
1	336JA of the Superannuation Industry (Supervision) Act 1993	(a) an employee; (b) an inspector	(a) the Federal Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court	30 penalty units

Modifications to be made
Item	For a reference in subsection 718(3) or (4) to …	include a reference to …
1	the Minister	the Minister administering the Superannuation Industry (Supervision) Act 1993
2	the Department	the Department administered by the Minister administering the Superannuation Industry (Supervision) Act 1993
3	this Act	Part 29B of the Superannuation Industry (Supervision) Act 1993

Superannuation Industry (Supervision) Act 1993

Part 3 - Transitional and application provisions

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Division 5 - Risk management plans

Subdivision A - Contents of risk management plans

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Subdivision B - Maintaining and reviewing risk management plans

Note: