Superannuation Industry (Supervision) Act 1993

PART 22 - INFRINGEMENT NOTICES

History

Pt 22 inserted by No 61 of 2013, s 3 and Sch 1 item 112, applicable to contraventions of provisions subject to an infringement notice under this Part all of the physical elements of which occur on or after 1 July 2013.

Former Pt 22 repealed by No 128 of 1999, s 3 and Sch 1 item 49, effective 13 October 1999. For transitional and application provisions, see the history note to s 2(3). Pt 22 formerly read:

PART 22 - PAYMENT OF UNCLAIMED SUPERANNUATION MONEY TO ASIC

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, the heading to Part 22 was substituted with " PART 22 - PAYMENT OF UNCLAIMED SUPERANNUATION MONEY TO THE COMMISSIONER OF TAXATION " .]

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History

Heading to Pt 22 substituted by No 54 of 1998 and No 53 of 1995.

SECTION 223 SECTION 223 OBJECT OF PART
223
The object of this Part is to set out a procedure for dealing with unclaimed superannuation money.
SECTION 224 SECTION 224 DEFINITION OF ' FUND '
224
In this Part:
'fund'
means a regulated superannuation fund or an approved deposit fund.

'State or Territory authority'
(Inserted by Modification Instrument 99/0001 )

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, the following definition was inserted:

'State or Territory authority'
means a State, a Territory, an authority of a State or an authority of a Territory.
]

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, the heading to section 224 was substituted with ' INTERPRETATION ' .]

SECTION 225 TRUSTEE TO PAY UNCLAIMED MONEY TO THE ASIC
225(1) Meaning of ' unclaimed money ' .
If:

(a) a beneficiary in a fund has reached the eligibility age for an age pension; and

(b) the trustee determines that, under the governing rules of the fund, a benefit (other than a pension) is immediately payable in respect of the beneficiary; and

(c) the beneficiary has not applied to the trustee to have the amount of his or her benefits in the fund paid to him or her; and

(d) the trustee is unable to pay those benefits to the beneficiary because the trustee, after making reasonable efforts to find the beneficiary, is unable to do so;
the amount payable to the beneficiary is taken to be unclaimed money.

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, s 225(1) was substituted with:

225(1)
Meaning of ' unclaimed money ' . If:

(a) a member of a fund has reached the eligibility age for an age pension; and

(b) the trustee determines that, under the governing rules of the fund, a benefit (other than a pension or annuity) is immediately payable in respect of the member; and

(c) the member has not applied to the trustee to have the amount of his or her benefits in the fund paid to him or her; and

(d) the trustee is unable to pay those benefits to the member because the trustee, after making reasonable efforts, is unable to find the member,
any amount payable to the member is taken to be unclaimed money.

225(1A)
Meaning of ' unclaimed money ' - deceased member. If:

(a) a member of a fund has died; and

(b) the trustee determines that, under the governing rules of the fund, a benefit (other than a pension or annuity) is immediately payable in respect of the member; and

(c) the member had not applied to the trustee to have the amount of his or her benefits in the fund paid to him or her or has died after making such an application; and

(d) the trustee is unable to pay those benefits in respect of the member because the trustee, after making reasonable efforts, is unable to find a person (the ' beneficiary ' ) to whom the trustee is required to pay those benefits,
any amount payable to the beneficiary is taken to be unclaimed money.

225(1B)
Trustee must make reasonable efforts to find the person entitled to the unclaimed money. If paragraphs (1)(a), (b) and (c) are satisfied in relation to a member of a fund, the trustee must make reasonable efforts to find the member and pay the benefits to him or her.

225(1C)
Trustee must make reasonable efforts to find the person entitled to the unclaimed money - deceased member. If paragraphs (1A)(a), (b) and (c) are satisfied in relation to a member of a fund, the trustee must make reasonable efforts to find the beneficiary and pay the benefits to him or her.
]

225(2)
Statement of unclaimed money. The trustee of a fund must, within 28 days after the end of each half-year, give to ASIC a statement in the approved form of all unclaimed money in the fund as at the end of that half-year. This rule does not apply to a half-year beginning before 1 January 1996.
Note:

The approved form of statement may require the trustee to set out:

(a) the tax file number of any beneficiary of the fund to whom the statement relates, who has quoted his or her tax file number to the trustee; and

(b) the tax file number of the fund

(see subsection 299U(4) ).

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, s 225(2) was substituted with:

225(2)
Statement of unclaimed money. The trustee of a fund must give to the Commissioner of Taxation a statement, in a form approved by the Commissioner of Taxation, of all unclaimed money in the fund as at the end of each half-year. The statement must be given on or before:

(a) in relation to a half-year ending on 30 June in a calendar year - 31 October in that calendar year; and

(b) in relation to a half-year ending on 31 December in a calendar year - 30 April in the following calendar year.
Note:

The approved form may require the trustee to set out:

(a) the tax file number of any beneficiary of the fund to whom the statement relates, who has quoted his or her tax file number to the trustee; and

(b) the tax file number of the fund.

See subsection 299U(4) .

225(2A)
Lodgement of statement. An approval by the Commissioner of Taxation of a form of statement for the purposes of subsection (2) may require or permit the statement to be given on a specified kind of data processing device in accordance with specified software requirements.

225(2B)
Statement must include particulars of unclaimed money paid after the end of the half-year. If, between the end of the half-year and the day on which the statement is given to the Commissioner of Taxation, the trustee pays any of the unclaimed money to a person who is entitled to it, the statement must contain such particulars relating to the amounts so paid as are required by the form.

225(2C)
Commissioner of Taxation may extend time for lodging statement. The Commissioner of Taxation may, in writing, provide for a later day to apply under paragraph (2)(a) or (b). This may be done before or after the day specified in the paragraph concerned.
]

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History

S 225(2) amended by No 54 of 1998, No 76 of 1996 and No 53 of 1995.

225(3)
(Repealed by No 76 of 1996)

225(4)
(Repealed by No 76 of 1996)

225(5)
Payment of unclaimed money to ASIC. The trustee must pay to ASIC, when the statement is given, the total amount of unclaimed money shown in the statement.

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, s 225(5) was substituted with:

225(5)
Payment of unclaimed money to the Commissioner of Taxation. The trustee must, when the statement is given, pay to the Commissioner of Taxation an amount worked out using the following formula:

amount of unclaimed
money specified
in statement − unclaimed
money
paid by
trustee

where:

' amount of unclaimed money specified in statement '
means any amounts specified in the statement in accordance with subsection (2);

' unclaimed money paid by trustee '
means any amounts specified in the statement in accordance with subsection (2B).

]

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History

S 225(5) amended by No 54 of 1998.

225(6)
Payment where money later claimed. If:

(a) any unclaimed money has been paid to ASIC under this section; and

(b) ASIC is satisfied on application made by a person in the approved form that, if this section had not been enacted, that person would have been paid that unclaimed money by the trustee by whom it was paid to ASIC;
ASIC must pay that unclaimed money to that person.

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, ' ASIC ' was substituted (wherever appearing) with ' the Commisioner of Taxation ' in s 225(6).]

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History

S 225(6) amended by No 54 of 1998.

225(7)
Refund of excess payments. If the trustee of a fund, after paying an amount to ASIC under this section, satisfies ASIC that the amount so paid exceeds the amount that would have been paid to the person concerned, ASIC must refund to the trustee the amount of the excess.

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, ' ASIC ' was substituted (wherever appearing) with ' the Commisioner of Taxation ' in s 225(7).]

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History

S 225(7) amended by No 54 of 1998.

225(8)
Discharge of trustee from liability. The trustee is, upon payment to ASIC of an amount as required by this section, discharged from further liability in his or her capacity as trustee in respect of that amount.

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, s 225(8) was substituted with:

225(8)
Discharge of trustee from liability. The trustee is, upon payment to the Commissioner of Taxation or to a State or Territory authority of an amount as required by this section, discharged from further liability in their capacity as trustee in respect of that amount.
]

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S 225(8) amended by No 54 of 1998.

225(9)
No obligation on trustee if alternative State/Territory scheme. The trustee of a fund is not required to comply with subsections (2) and (5) if a law of a State or Territory requires the trustee to:

(a) pay unclaimed money to, or to an authority of, a State or Territory; or

(b) lodge a return relating to unclaimed money with, or with an authority of, a State or Territory.

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, s 225(9) was substituted with:

225(9)
Payment of unclaimed money to a State or Territory authority. If a law of a State or Territory satisfies the requirements of subsections (9A) and (9B), then the trustee must, instead of complying with subsections (2) and (5), pay the amount worked out under paragraph (9A)(c) to a Sate or Territory authority in accordance with that law.

225(9A)
The first requirement is that the law requires:

(a) a trustee to prepare, at the end of each half-year, a statement in a form approved by a State or Territory authority, of all unclaimed money (within the meaning of subsection (1) or (1A)) in the fund; and

(b) that the statement be given to a State or Territory authority on or before:

(i) in relation to a half-year ending on 30 June in a calendar year - 31 October in that calendar year; and

(ii) in relation to a half-year ending on 31 December in a calendar year - 30 April in the following calendar year; and

(c) the trustee to pay to the State or Territory authority, when the statement is given, an amount worked out in accordance with a formula corresponding to the formula in subsection (5); and

(d) the State or Territory authority to keep a register that contains particulars of:

(i) the unclaimed money paid to it by the trustee; and

(ii) the member in respect of whom the unclaimed money was payable.

225(9B)
The second requirement is that the law contains provisions:

(a) corresponding to subsection (2B), that require the statement to contain such particulars relating to any unclaimed money paid after the end of the half-year as are required by the form approved by the State or Territory authority; and

(b) corresponding to subsection (2A), that authorise the approval of the form of the statement to require or permit the statement to be given on a data processing device; and

(c) corresponding to subsection (2C), that empower the State or Territory authority to extend the period in which the statement must be lodged; and

(d) corresponding to subsection (6), that require the State or Territory authority to pay unclaimed money to a person in circumstances corresponding to those set out in that subsection; and

(e) corresponding to subsection (7), that require the State or Territory authority to return amounts in circumstances corresponding to those set out in that subsection.
]

225(10)
Appropriation of Consolidated Revenue Fund. The Consolidated Revenue Fund is appropriated for the purposes of this section.

225(11)
Trustee not to contravene section. The trustee of a fund must not intentionally or recklessly contravene this section.
Penalty: 100 penalty units.

SECTION 226 SECTION 226 REGISTER OF UNCLAIMED MONEY
226
ASIC must keep a register that contains:

(a) particulars of unclaimed money paid by a trustee of a fund to ASIC under this Part; and

(b) particulars of the persons to whom, if this section had not been enacted, the money would have been payable by the trustee.
Note:

The particulars of a person may include the person ' s tax file number. See subsection 299U(5) .

[ CCH Note: MODIFICATION INSTRUMENT 99/0001 (No ASIC 2 of 2 February 1999) modifies provisions of the SIS Act and SIS Regulations in their application to superannuation entities and persons specified in Schedule B to the Instrument (ie each regulated superannuation fund and approved deposit fund within the meaning of the SIS Act, and each trustee of such fund). By this instrument, s 226 was substituted with:

226
The Commissioner of Taxation must keep a register that contains:

(a) particulars of unclaimed money paid by a trustee of a fund to the Commissioner of Taxation under this Part; and

(b) particulars of the members in respect of whom there is unclaimed money.
Note: The particulars of a member may include the member ' s tax file number. See subsection 229U(5).
]

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History

S 226 amended by No 54 of 1998 and No 76 of 1996.

Division 2 - Infringement notices

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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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