PART 2B
-
REGISTRABLE SUPERANNUATION ENTITIES
History
Pt 2B inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
Division 5
-
RSE licensees must provide information about registrable superannuation entities
History
Div 5 heading substituted by No 40 of 2019, s 3 and Sch 7 item 4, applicable in relation to years of income of a registrable superannuation entity beginning on or after 6 April 2019. Div 5 heading formerly read:
Division
-
Offences
Div 5 inserted by No 171 of 2012 (as amended by No 21 of 2015), s 3 and Sch 3 item 42, effective 1 July 2013. No 21 of 2015, s 3 and Sch 7 item 51, contains the following provision:
51 Validation of regulations
(1)
Regulations made under the
Superannuation Industry (Supervision) Act 1993
before the commencement of this item are as valid as they would have been if they had been made under that Act as amended by the corrected Act.
(2)
For the purposes of this item, the
corrected Act
is the
Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012
as amended by items 49 and 50 of this Schedule.
Former Div 5 repealed by No 117 of 2012, s 3 and Sch 2 item 33, effective 9 September 2012. Div 5 formerly read:
Division 5
-
Risk management plans
Subdivision A
-
Contents of risk management plans
History
Subdiv A inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
SECTION 29P CONTENTS OF RISK MANAGEMENT PLANS
29P(1)
The risk management plan for a registrable superannuation entity must set out reasonable measures and procedures that the RSE licensee of the entity is to apply to identify, monitor and manage the risks that arise in operating the entity.
29P(2)
Without limiting subsection (1), the risk management plan for a registrable superannuation entity must set out:
(a)
reasonable measures and procedures that the RSE licensee of the entity is to apply to identify, monitor and manage:
(i)
the risks to the investment strategy relevant to the entity; and
(ii)
the risks to the entity's financial position; and
(iii)
the risks from entering into outsourcing arrangements relating to the entity; and
(b)
the circumstances in which an audit of the risks referred to in this section is to be undertaken; and
(c)
such other matters as are prescribed by regulations made for the purposes of this paragraph.
29P(3)
The risk management plan must be signed by the RSE licensee of the entity.
Note:
If the RSE licensee is a group of individual trustees, the plan must be signed by each of the individual trustees: see subsection
13A(6)
.
29P(4)
The risk management plan must not by reference incorporate provisions of any other document unless that other document is available, without charge, to members of the public.
29P(5)
A risk management plan does not fail to comply with the above section merely because it reproduces information contained in the risk management strategy of the RSE licensee of the entity or in a risk management plan for another entity that has the same RSE licensee.
History
S 29P inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
Subdivision B
-
Maintaining and reviewing risk management plans
History
Subdiv B inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
SECTION 29PA REQUIREMENT TO MAINTAIN AND REVIEW RISK MANAGEMENT PLANS
29PA(1)
An RSE licensee of a registrable superannuation entity that has been registered under this Part must:
(a)
ensure that at all times the risk management plan for the entity is up-to-date; and
(b)
ensure that the risk management plan for the entity is reviewed at least once each year to ensure that it complies with section
29P
; and
(c)
modify, or replace, the risk management plan for the entity in accordance with section
29PB
if at any time the trustee becomes aware that the risk management plan no longer complies with section
29P
.
29PA(2)
An RSE licensee of a registrable superannuation entity must review the risk management plan for the entity within 60 days after the RSE licensee:
(a)
becomes the RSE licensee of the entity (unless the entity is a registrable superannuation entity of which, at the time of the application for an RSE license, the RSE licensee proposed to become the RSE licensee); or
(b)
becomes an acting trustee appointed under Part
17
of a superannuation entity following the suspension or removal of a former trustee of the entity under that Part.
However, this subsection does not apply if a review of the risk management plan is due under paragraph (1)(b) within the 60 days after the RSE licensee becomes the RSE licensee, or trustee, of the entity.
Note:
Only a person may be appointed as an acting trustee under Part
17
: see section
134
.
History
S 29PA inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
SECTION 29PB MODIFICATIONS ETC. TO RISK MANAGEMENT PLANS
29PB(1)
An RSE licensee of a registrable superannuation entity that has been registered under this Part may:
(a)
modify the risk management plan for the entity; or
(b)
repeal the risk management plan for the entity and replace it with a new risk management plan.
29PB(2)
However, after the modification or the repeal and replacement, the risk management plan must comply with section
29P
.
29PB(3)
APRA may direct an RSE licensee of a registrable superannuation entity that has been registered under this Part to modify the risk management plan for the entity, as set out in the direction, by a specified time, to ensure that the plan complies with section
29P
. The direction is to be given by notice to the RSE licensee.
Note:
A failure to comply with a direction may be an offence: see section
29Q
.
29PB(4)
A time specified in a direction given to an RSE licensee under subsection (3) must be at least 14 days after the direction is given to the RSE licensee.
History
S 29PB inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
SECTION 29PC NOTIFICATION OF MODIFICATIONS ETC. TO RISK MANAGEMENT PLANS
29PC(1)
If an RSE licensee modifies a risk management plan for a registrable superannuation entity that has been registered under this Part, the RSE licensee must give APRA:
(a)
a copy of the modification; and
(b)
a copy of the plan as modified;
within 14 days after making the modification.
29PC(2)
If an RSE licensee repeals a risk management plan (the
old plan
) for a registrable superannuation entity that has been registered under this Part and replaces it with another risk management plan (the
new plan
), the RSE licensee must give APRA:
(a)
a copy of the new plan; and
(b)
a written statement to the effect that the new plan replaces the old plan;
within 14 days after the old plan is repealed.
29PC(3)
Any copy or statement given to APRA under this section must be signed by the RSE licensee.
Note:
If the RSE licensee is a group of individual trustees, the copy or statement must be signed by each of the individual trustees: see subsection
13A(6)
.
29PC(4)
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), (2) or (3).
Penalty: 50 penalty units.
29PC(5)
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), (2) or (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 and Part
IA
of the
Crimes Act 1914
contains provisions dealing with penalties.
History
S 29PC inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
Subdivision C
-
Miscellaneous
History
Subdiv C inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
SECTION 29PD ACCESS TO RISK MANAGEMENT PLANS
29PD(1)
If a member or unit holder of a registrable superannuation entity that has been registered under this Part requests a copy of the risk management plan for the entity, the RSE licensee of the entity must make a copy of the plan available, without charge, to the member or unit holder as soon as practicable after the RSE licensee receives the request.
29PD(2)
If an employer-sponsor of a registrable superannuation entity that:
(a)
has been registered under this Part; and
(b)
is a defined benefit fund;
requests a copy of the risk management plan for the entity, the RSE licensee of the entity must make a copy of the plan available, without charge, to the employer-sponsor as soon as practicable after the RSE licensee receives the request.
History
S 29PD inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
SECTION 29PE APRA TO BE GIVEN INFORMATION
29PE(1)
APRA may give an RSE licensee of a registrable superannuation entity that has been registered under this Part a notice requesting the RSE licensee to give APRA, in a specified way, specified information relating to the risk management plan for the entity by a specified time that is reasonable in the circumstances.
29PE(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)
there has been a failure by the RSE licensee to comply with the notice.
Penalty: 50 penalty units.
29PE(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)
there has been a failure by the RSE licensee to comply with the notice.
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 and Part
IA
of the
Crimes Act 1914
contains provisions dealing with penalties.
Note 3:
Sections
137.1 and 137.2
of the
Criminal Code
also create offences for providing false or misleading information or documents.
29PE(4)
Subsection (2) or (3) does not apply if the RSE licensee has a reasonable excuse for the failure to comply with the notice under subsection (1).
Note:
A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection
13.3(3)
of the
Criminal Code
).
History
S 29PE inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
Former Div 5 inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
Subdivision A
-
Annual members
'
meetings
SECTION 29P
ANNUAL MEMBERS
'
MEETING
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)
any individual, company or firm that is the RSE auditor of the registrable superannuation entity;
(ca)
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.
History
S 29P(2) amended by No 29 of 2023, s 3 and Sch 6 item 200, by substituting para (c) and (ca) for para (c), effective 1 July 2023. Para (c) formerly read:
(c)
any person who has been an auditor of the registrable superannuation entity for the year of income of the entity;
29P(3)
The RSE licensee must:
(a)
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)
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
.]
History
S 29P(3) amended by No 69 of 2023, s 3 and Sch 4 item 66, by substituting para (a) and (aa) for para (a), applicable in relation to an annual members
'
meeting of a registrable superannuation entity that is held for a year of income of the entity that ends on or after 15 September 2023. Para (a) formerly read:
(a)
include in the notice:
(i)
the time and location of the annual members
'
meeting; and
(ii)
if the annual members
'
meeting to be held by electronic means
-
details of how the meeting can be attended electronically; and
(iii)
the agenda of matters to be discussed at the annual members
'
meeting; and
S 29P(3) amended by No 29 of 2023, s 3 and Sch 6 item 201, by inserting para (aa), effective 1 July 2023.
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)
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.
History
S 29P(4A) inserted by No 69 of 2023, s 3 and Sch 4 item 67, applicable in relation to an annual members
'
meeting of a registrable superannuation entity that is held for a year of income of the entity that ends on or after 15 September 2023.
29P(4B)
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)
.
History
S 29P(4B) inserted by No 69 of 2023, s 3 and Sch 4 item 67, applicable in relation to an annual members
'
meeting of a registrable superannuation entity that is held for a year of income of the entity that ends on or after 15 September 2023.
29P(4C)
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)
.
History
S 29P(4C) inserted by No 69 of 2023, s 3 and Sch 4 item 67, applicable in relation to an annual members
'
meeting of a registrable superannuation entity that is held for a year of income of the entity that ends on or after 15 September 2023.
29P(4D)
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.
History
S 29P(4D) inserted by No 69 of 2023, s 3 and Sch 4 item 67, applicable in relation to an annual members
'
meeting of a registrable superannuation entity that is held for a year of income of the entity that ends on or after 15 September 2023.
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)
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.
History
S 29P(7) amended by No 47 of 2021, s 3 and Sch 1 item 11, by substituting
"
no more than 6 members
"
for
"
fewer than 5 members
"
in para (a), effective 1 July 2021.
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.
History
S 29P inserted by No 40 of 2019, s 3 and Sch 7 item 5, applicable in relation to years of income of a registrable superannuation entity beginning on or after 6 April 2019.
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