Explanatory Memorandum
(Circulated by authority of the Minister for Financial Services & Regulation,the Honourable Joe Hockey, MP)Schedule 3 - Amendment of the Superannuation Industry (Supervision) Act 1993
| Schedule 3 makes a range of amendments to the Superannuation Industry (Supervision) Act 1993 (SIS Act), including amendments to enforcement powers (Part 1 of the Schedule), and amendments to offence provisions (Part 2 of the Schedule). Division 1 of Part 2 contains substantive amendments to various offence provisions, which change the nature of the offences in question, and also ensure they are compliant with the Criminal Code . Division 2 of Part 2 makes non-substantive or technical amendments to various offence provisions, which merely confirm the current operation of the offences while ensuring they are compliant with the Criminal Code . |
The amendments in this Schedule will provide the Regulators with various new or enhanced enforcement powers. These powers will strengthen the regulatory framework for superannuation and facilitate the prosecution of contraventions of the SIS Act. This in turn will assist in ensuring that superannuation entities are administered prudently and that superannuation savings are adequately protected.
Part 1 - Amendments relating to enforcement
Amendment of subparagraph 6(1)(e)(iv)
8.1 This item amends subparagraph 6(1)(e)(iv) to remove the words '(other than sections 126B to 126F)'. The effect of this amendment is to give the Commissioner of Taxation general administration of sections 126B to 126F to the extent that they relate to self managed superannuation funds. APRA retains general administration of those sections to the extent that they relate to funds other than self managed superannuation funds.
Definitions in subsection 10(1)
8.2 These items respectively repeal paragraph (b) of the definition of approved guarantee and the definition of approved non-ADI financial institution . These definitions are redundant following the passage of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 , which transferred to the Commonwealth responsibility for regulating financial institutions formerly supervised by the States and Territories.
Definition of reviewable decision in subsection 10(1)
8.3 This item repeals existing paragraphs (m) and (n) of the definition of reviewable decision . The new paragraphs (m) and (n) add references to decisions by APRA under subsection 92(5) (see items 8 to 12).
Definition of reviewable decision in subsection 10(1)
8.4 This item inserts new paragraphs (pa) and (pb) into the definition of reviewable decision . They relate to decisions by the Regulator under new section 120A (see item 14).
Definition of reviewable decision in subsection 10(1)
8.5 This item amends paragraphs (r), (ra) and (rb) of the definition of reviewable decision to replace references to 'APRA' with references to 'the Regulator'. This reflects that the Commissioner of Taxation has responsibility for making the decisions mentioned in the paragraphs, to the extent that they relate to self managed superannuation funds.
8.6 This item repeals paragraph 71(1)(ba), which is redundant following the passage of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 . This Act transferred to the Commonwealth responsibility for regulating financial institutions formerly supervised by the States and Territories.
8.7 Items 8 to 12 import into the SIS Act, with appropriate amendments, Modification Declaration No. 10, issued by the former Insurance and Superannuation Commissioner. The amendments in these items allow non-public offer superannuation funds to make alternate arrangements to satisfy the equal representation rules in Part 9 of the SIS Act.
8.8 Item 8 adds new paragraph 92(4)(c) which provides that non-public offer funds may satisfy the equal representation rules if an arrangement in relation to the management and control of the fund has been agreed to between a majority of the members of the fund and the employer, or employers, of those members, and APRA has approved the arrangement in writing.
New subsections 92(4A) to (4D)
8.9 This item inserts new subsections 92(4A) to (4D) which set out APRA's powers in relation to approving, revoking the approval of, or varying or revoking the conditions attached to the approval of, an arrangement referred to in paragraph 92(4)(c).
8.10 APRA must have regard to any guidelines it may determine in deciding whether or not to grant an arrangement approval . An arrangement approval may be granted subject to conditions, and may be revoked by APRA by written notice given to the trustee of the fund seeking the approval.
8.11 Subsection 92(4C) sets out the grounds on which an arrangement approval may be revoked. Subsection 92(4D) allows APRA to vary or revoke the conditions of the arrangement approval by written notice given to the trustee.
8.12 This item replaces existing paragraph 92(5)(a) with a new paragraph making it clear that the single trustee of the fund must be a constitutional corporation.
New paragraphs 92(5)(c) and (ca)
8.13 This item replaces existing paragraph 92(5)(c) with two new paragraphs, the effect of which is to add further requirements in order for a fund to comply with an alternative agreed representation rule. New paragraph 92(5)(c) requires that the trustee of the fund be an approved trustee under section 26. New paragraph 92(5)(ca) requires that the trustee's approval specifies that the trustee is also approved for the purposes of subsection 92(5).
8.14 This item repeals existing subsections 92(6) to (12) and replaces them with four new subsections. The new subsections set out the process under which APRA makes decisions in relation to an approval for the purposes of subsection 92(5).
8.15 APRA must have regard to any guidelines it may determine in deciding whether or not to give a trustee's subsection 92(5) approval (subsection 92(6)). A trustee's subsection 92(5) approval may be granted subject to conditions, and may be revoked by APRA by written notice given to the trustee of the fund seeking the approval (subsection 92(7)).
8.16 Subsection 92(8) sets out the grounds on which a trustee's subsection 92(5) approval may be revoked.
8.17 Subsection 92(9) provides that for the purposes of sections 27A, 27B, 27C, 27D, 27E and 29, the trustee's subsection 92(5) approval and any conditions to which it is subject are to be treated as conditions to which the trustee's approval under section 26 is subject. In essence, the trustee's subsection 92(5) approval becomes part of the trustee's approval under section 26.
8.18 This item adds a new paragraph (c) to subsection 120(1), the effect of which is to provide that a disqualified person, for the purposes of the section, includes a person disqualified by the Regulator under section 120A (see item 14).
8.19 This item inserts new section 120A, which gives the Regulator the power to disqualify a person from being the trustee, investment manager or custodian of a superannuation entity. It applies not only to individual trustees, investment managers or custodians, but also to persons who are responsible officers of bodies corporate that perform these functions.
8.20 Subsections 120A(1) to (3) set out the grounds on which the Regulator may disqualify an individual. The grounds include that a person has contravened the SIS Act, or the Regulator is otherwise satisfied that the person is not fit and proper.
8.21 Subsections 120A(4) to (7) cover matters such as the date a disqualification takes effect; the circumstances in which a disqualification may be revoked; and notification or gazettal of a decision by the Regulator to revoke, or to refuse to revoke, a disqualification.
8.22 The term 'Regulator', as used in this section, refers to the Commissioner of Taxation, in respect of self managed superannuation funds, and APRA, in respect of funds other than self managed superannuation funds.
8.23 These items respectively amend sections 126 and 126A to remove the words '(other than a self managed superannuation fund)' from subsections 126(1) and (2) and subsections 126A(1) and (2). These amendments make it an offence for a disqualified person to intentionally be, or act as, an investment manager or custodian of any superannuation entity, including a self managed superannuation fund.
8.24 These items amend sections 126B and 126C to replace references to 'APRA' or 'APRA's', wherever they occur, with references to 'The Regulator', 'the Regulator' or 'the Regulator's' as the case requires. This reflects the fact that the Commissioner of Taxation will have the general administration of these sections to the extent that they relate to self managed superannuation funds. APRA will retain general administration of these sections to the extent that they relate to funds other than self managed superannuation funds. The expression 'Regulator', as defined in subsection 10(1), may encompass both APRA and the Commissioner of Taxation.
8.25 This item inserts a note after subsection 126D(1) drawing attention to the fact that APRA's power under the subsection does not extend to self managed superannuation funds.
8.26 This item inserts new subsection 126D(1A). It is similar to subsection 126D(1) which sets out the circumstances in which APRA must make a declaration waiving a person's disqualified status.
8.27 New subsection 126D(1A) requires the Commissioner of Taxation to waive a person's disqualified status where, having taken into account the items in paragraphs 126D(1A)(a) to (e), the Commissioner is satisfied that the applicant is highly unlikely to contravene the SIS Act, and is highly unlikely to do anything that would result in a self managed superannuation fund not complying with the SIS Act.
8.28 The item also inserts a note after the subsection drawing attention to the fact that the Commissioner's power under the subsection only extends to self managed superannuation funds.
8.29 These items amend sections 126D, 126E and 126F by replacing references to 'APRA' or 'APRA's', wherever they occur (other than in subsection 126D(1)), with references to 'The Regulator', 'the Regulator', or 'the Regulator's' as the case requires. This reflects the fact that the Commissioner of Taxation will have the general administration of these sections to the extent that they relate to self managed superannuation funds. APRA retains the general administration of these sections to the extent that they relate to funds other than self managed superannuation funds. The expression 'Regulator', as defined in subsection 10(1), may encompass both APRA and the Commissioner of Taxation.
8.30 This item inserts new section 131B which makes it an offence for a person to falsely hold themself out as an actuary or an approved auditor , as defined under the SIS Act. The offences in the new section are offences of strict liability, and a note is inserted after the section drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.31 This item inserts new section 141A. Under section 134, where the Regulator has suspended the trustee of a superannuation entity, the Regulator may appoint an acting trustee . Under section 138 the Regulator may make an order vesting the property of the relevant superannuation entity in the acting trustee.
8.32 New section 141A will require the person in whom the property of the superannuation entity was vested immediately before the order under section 138 was made (the former trustee ) to give to the acting trustee all books relating to the affairs of the superannuation entity that are in the former trustee's possession, custody or control. The former trustee is guilty of an offence if the former trustee does not give the books to the acting trustee within the time period set out in subsection 141A(3).
8.33 New subsections 141A(4) and (5) require the former trustee, if requested in writing by the acting trustee, to identify property of the superannuation entity, explain how the former trustee has kept account of that property, and assist in the transfer of specified property of the superannuation entity to the acting trustee. The former trustee is guilty of an offence if the former trustee does not take the action requested by the acting trustee within the time period set out in subsection 141A(6).
8.34 New subsection 141A(7) specifies that the offences in subsections 141A(3) and (6) are offences of strict liability. Notes are inserted after subsection 141A(7) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.35 This item adds a new paragraph (d) to section 253, the effect of which is to extend the objects of Part 25 of the SIS Act to include authorising the Regulator to accept written undertakings (see item 36).
8.36 This item inserts new Division 3A into Part 25 of the SIS Act. New Division 3A consists of new section 262A, which provides for the acceptance and enforcement of undertakings by the Regulator.
8.37 New section 262A mirrors similar provisions in section 87B of the Trade Practices Act 1974 and section 93AA of the Australian Securities and Investments Commission Act 1989 , and is designed to provide the Regulator with a flexible and efficient enforcement tool.
8.38 The new section provides that the Regulator may accept a written undertaking given by a person in connection with a matter in relation to which the Regulator has a power or function under the SIS Act. The Regulator may be APRA, ASIC or the Commissioner of Taxation, depending on the nature of the undertaking and/or the superannuation entity it relates to.
8.39 A person may withdraw or vary an undertaking at any time, but only with the Regulator's consent.
8.40 If the Regulator considers that the terms of the undertaking have been breached by the person who gave it, the Regulator may take that person to Court to enforce the undertaking. The Court has power to make various orders set out in subsection 262A(4).
Amendments to subsections 287(2) and (3)
8.41 These items make amendments to subsections 287(2) and (3), the effect of which is to prevent a person subject to investigation under the SIS Act from claiming privilege in respect of the production of books ('use immunity'), or any information, document or other evidence obtained as a direct or indirect consequence of that person making an oral statement or signing a record of interview ('derivative use immunity').
8.42 Similar changes were made to the Corporations Law and the Australian Securities and Investments Commission Act 1989 in 1992 following recommendations by the Parliamentary Joint Committee on Corporations and Securities.
8.43 The experience of the former ISC, and now APRA, is that these immunities make it exceptionally difficult to pursue prosecutions under the SIS Act. Given the strong growth in superannuation savings, and the increasingly important role they play in ensuring that people make adequate provision for their income in retirement, it is considered that removal of these immunities is warranted in order to allow the Regulator to more effectively prosecute persons who contravene the SIS Act.
8.44 This item sets out transitional requirements in relation to the application of the amendments in items 37 to 41.
8.45 This item inserts new section 324A relating to the time periods within which prosecutions may be commenced under the SIS Act. It is based on section 1316 of the Corporations Law, which has been recently interpreted by the High Court in
Attorney-General
v.
Oates
[1999] HCA 35
, to be a facilitative provision, rather than a restrictive one. That is, in the High Court's view, section 1316 allows for proceedings for an offence against the Corporations Law to be commenced within 5 years after the date of the offence, or with the Minister's consent at any later time, despite anything in any other law (for example, even if another law specifies a shorter time period for the commencement of proceedings). However, section 1316 does not prevent a period greater than 5 years applying where another law allows for this (for example, the
Crimes Act 1914
provides that prosecutions for indictable offences may be commenced at any time). Nor does section 1316 operate to require the Minister's consent in such cases, even where the prosecution is commenced more than 5 years after the offence.
8.46 Section 344 sets out procedures under which a person who is affected by a reviewable decision (defined in subsection 10(1)) of the Regulator, may apply to the Regulator to have that decision reviewed. Subsection 344(12) generally provides that a person is taken not to be affected by a reviewable decision of the Regulator unless the person is the trustee of a superannuation entity. However, certain reviewable decisions are specifically excepted from this, such that persons other than trustees may be considered as a person affected by the reviewable decision.
8.47 This item amends subsection 344(12) by including references to paragraphs (pa) and (pb) of the definition of reviewable decision, which relate to disqualification under new section 120A (see item 14), as decisions which are excepted under the subsection. Therefore, a person may be considered as a person affected by a reviewable decision made under paragraph (pa) or (pb), even though the person is not the trustee of a superannuation entity. This is because decisions of the Regulator under paragraphs (pa) and (pb) of the definition of reviewable decision may affect trustees, investment managers or custodians of a superannuation entity.
Part 2 Amendments relating to application of Criminal Code
Division 1 Substantive amendments
8.48 This item adds new section 9A in Division 1 of Part 1 of the SIS Act. The section provides that Chapter 2 of the Criminal Code applies to all offences against the SIS Act, other than those offences listed in subsection 9A(1). The Criminal Code will be applied to these remaining offences when they are amended to ensure compliance with the Criminal Code .
8.49 Subsection 9A(2) provides that sections 17 and 338 do not apply in relation to an offence against the SIS Act to which the Criminal Code applies. This is because the matters dealt with in section 17 (regarding persons involved in a contravention of the SIS Act) and section 338 (regarding conduct by directors, servants and agents) are adequately covered by provisions in the Criminal Code .
8.50 This item repeals the offence in existing subsection 36(2) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8. 51 This item repeals the offence in existing subsection 36A(7) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 64(3) and (3A)
8.52 This item repeals existing subsection 64(3) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 64(3) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 64(3A) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.53 The item also inserts notes after new subsection 64(3A) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.54 This item repeals the offence in existing subsection 103(3) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8. 55 This item repeals the offence in existing subsection 104(2) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8. 56 This item repeals the offence in existing subsection 105(2) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 107(3) and (4)
8.57 This item repeals existing subsection 107(3) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 107(3) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 107(4) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.58 The item also inserts notes after new subsection 107(4) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 108(3) and (4)
8.59 This item repeals existing subsection 108(3) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 108(3) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 108(4) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.60 The item also inserts notes after new subsection 108(4) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 111(3) and (4)
8.61 This item repeals existing subsection 111(3) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 111(3) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 111(4) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.62 The item also inserts notes after new subsection 111(4) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 112(5) and (6)
8.63 This item repeals existing subsection 112(5) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 112(5) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 112(6) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.64 The item also inserts notes after new subsection 112(6) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 113(1), (1A), (2) and (2A)
8.65 This item repeals existing subsections 113(1) and (2), relating to the auditing of accounts of a superannuation entity, and replaces them with four new subsections.
8.66 New subsection 113(1) requires the trustee to appoint an approved auditor to report on the operations of the superannuation entity. This appointment must take place within the period specified in the regulations.
8.67 New subsection 113(1A) imposes an obligation on the trustee to give to the auditor, within 14 days, any documents the auditor may request in writing which are relevant to the preparation of the audit report.
8.68 New subsections 113(2) and (2A) provide a 'two tier' offence for contravention of subsections 113(1) and (1A). New subsection 113(2) is a fault liability offence, which requires the prosecution to prove relevant fault elements, and carries a maximum penalty of two years imprisonment (the same penalty as existing subsection 113(2)). New subsection 113(2A) is a strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.69 The item also inserts a note after new subsection 113(2) drawing attention to a provision of the Crimes Act 1914 relating to fines, and notes after new subsection 113(2A) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 113(4), (5) and (6)
8.70 This item repeals existing subsections 113(4) and (5) and replaces them with three new subsections. New subsection 113(4) requires the auditor to give his or her report on the operations of the superannuation entity to the trustee within the time period after the end of the year of income specified in the regulations.
8.71 New subsections 113(5) and (6) provide a 'two tier' offence for contravention of subsection 113(4). New subsection 113(5) is a fault liability offence, which requires the prosecution to prove relevant fault elements, and carries a maximum penalty of 6 months imprisonment (the same penalty as existing subsection 113(5)).
8.72 New subsection 113(6) is a strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units. Under section 10.1 of the Criminal Code , the defence of intervening conduct or event is available to the auditor in respect of the offence in new subsection 113(6).
8.73 The item also inserts a note after new subsection 113(5) drawing attention to a provision of the Crimes Act 1914 relating to fines, and notes after new subsection 113(6) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.74 This item repeals the offence in existing subsection 122(2) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8. 75 This item repeals the offence in existing subsection 124(2) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 154(2) and (2A)
8.76 This item repeals existing subsection 154(2) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 154(2) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 154(2A) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.77 The item also inserts notes after new subsection 154(2A) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 169(3) and (4)
8.78 This item repeals existing subsection 169(3) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 169(3) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of imprisonment for 1 year. New subsection 169(4) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.79 The item also inserts a note after new subsection 169(3) drawing attention to a provision of the Crimes Act relating to fines, and notes after new subsection 169(4) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 184(2) and (3)
8.80 Division 3 of Part 20 of the SIS Act sets out the insider trading rules. Subsection 184(1) makes it an offence to contravene these rules. Existing subsections 184(2) and (3) deal with matters of proof relating to the offence in subsection 184(1).
8.81 This item repeals existing subsections 184(2) and (3) and recasts them to more clearly identify that they are defences to a contravention of subsection 184(1).
8.82 This item repeals the offence in existing subsection 254(4) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.83 Under section 257 of the SIS Act APRA may, by written notice, require the trustee of a superannuation entity to appoint an individual, or committee of individuals, to conduct an investigation into the entity and report on that investigation.
8.84 This item adds new subsection 257(2), imposing an obligation on the trustee to give a copy of the notice from APRA to the appointed individual or committee members within three days of the appointment.
New subsections 260(2) and (3)
8.85 This item repeals existing subsection 260(2) and replaces it with two new subsections. Under existing subsection 260(2) an obligation is placed on the trustee to ensure that the investigation report prepared under section 257 is given to APRA within a certain time period. The amendments will place this obligation to give the report to APRA on the person who is appointed under section 257 to conduct the investigation (whether as an individual or as a member of a committee), rather than the trustee.
8.86 The new subsections create a 'two tier' offence containing fault and strict liability components. New subsection 260(2) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units.
8.87 New subsection 260(3) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units. Under section 10.1 of the Criminal Code , the defence of intervening conduct or event is available to the person in respect of the offence in new subsection 260(3).
8.88 The item also inserts notes after new subsection 260(3) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.89 This item repeals the fault liability offence in section 262 and replaces it with a 'two tier' offence containing fault and strict liability components. The offence applies where a trustee contravenes a requirement of sections 257, 258 or 259. New subsection 262(1) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 262(2) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.90 The item also inserts notes after new subsection 262(2) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.91 This item repeals the offence in existing subsection 299C(3) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299F(4) and (4A)
8.92 This item repeals existing subsection 299F(4) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299F(4) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299F(4A) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.93 The item also inserts notes after new subsection 299F(4A) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299G(4) and (4A)
8.94 This item repeals existing subsection 299G(4) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299G(4) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299G(4A) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.95 The item also inserts notes after new subsection 299G(4A) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299H(6) and (7)
8.96 This item repeals existing subsection 299H(6) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299H(6) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299H(7) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.97 The item also inserts notes after new subsection 299H(7) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299J(6) and (7)
8.98 This item repeals existing subsection 299J(6) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299J(6) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299J(7) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.99 The item also inserts notes after new subsection 299J(7) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299K(6) and (7)
8.100 This item repeals existing subsection 299K(6) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299K(6) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299K(7) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.101 The item also inserts notes after new subsection 299K(7) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299L(6) and (7)
8.102 This item repeals existing subsection 299L(6) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299L(6) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299L(7) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.103 The item also inserts notes after new subsection 299L(7) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299M(4) and (5)
8.104 This item repeals existing subsection 299M(4) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299M(4) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299M(5) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.105 The item also inserts notes after new subsection 299M(5) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 299Y(2) and (3)
8.106 This item repeals existing subsection 299Y(2) and replaces it with two new subsections, the effect of which is to convert the existing fault liability offence to a 'two tier' offence containing fault and strict liability components. New subsection 299Y(2) sets out the fault liability offence, which requires the prosecution to prove the relevant fault elements, and carries a maximum penalty of 100 penalty units. New subsection 299Y(3) sets out the strict liability offence, which does not require proof of fault elements, and carries a lesser maximum penalty of 50 penalty units.
8.107 The item also inserts notes after new subsection 299Y(3) drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.108 This item repeals the offence in existing subsection 347A(6) and replaces it with an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
Division 2 - Technical amendments
8.109 This item inserts a new subsection 18(7BA) specifying that the offence in subsection 18(7B) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.110 This item adds a new subsection 29(4) specifying that the offence in subsection 29(3) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
New subsections 63(7A) and 63(10A)
8.111 These items insert new subsections 63(7A) and (10A) specifying that the offences in subsections 63(7) and (10) are offences of strict liability. The items also insert notes after the respective subsections drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.112 This item adds a new subsection 121(4) specifying that the offence in subsection 121(3) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.113 This item adds a note after subsection 123(1) drawing attention to the evidential burden on a defendant in relation to the matters in paragraphs 123(1)(a) and (b).
8.114 This item adds a new subsection 123(6) specifying that the offences in subsections 123(4) and (5) are offences of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.115 This item inserts a new subsection 140(3A) specifying that the offence in subsection 140(3) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.116 This item adds a note after subsection 163(1) drawing attention to the evidential burden on a defendant in relation to the matters in paragraphs 163(1)(a) and (b).
8.117 This item adds a new subsection 163(3) specifying that the offence in subsection 163(2) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.118 This item inserts a new subsection 201(4A) specifying that the offence in paragraph 201(4)(a) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.119 This item adds a new subsection 265(4) specifying that the offence in subsection 265(3) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.120 This item inserts a new subsection 303(1A) specifying that the offence in subsection 303(1) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.121 This item adds a note after subsection 303(2) drawing attention to the legal burden on a defendant in relation to the matters in the subsection.
8.122 This item inserts a new subsection 331(1A) specifying that the offence in subsection 331(1) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
8.123 This item inserts a new subsection 377(3A) specifying that the offence in subsection 377(3) is an offence of strict liability. The item also inserts notes after the subsection drawing attention to the provisions of the Criminal Code relating to general principles of criminal responsibility and strict liability.
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
