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Former Div 5 repealed by No 117 of 2012, s 3 and Sch 2 item 33, effective 9 September 2012.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 29PA
OBLIGATION TO ATTEND AN ANNUAL MEMBERS
'
MEETING
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)
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.
History
S 29PA(3) substituted by No 29 of 2023, s 3 and Sch 6 item 202, effective 1 July 2023. S 29PA(3) formerly read:
29PA(3)
A person who has been an auditor of a registrable superannuation entity for 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(3A)
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.
History
S 29PA(3A) inserted by No 29 of 2023, s 3 and Sch 6 item 202, effective 1 July 2023.
29PA(3B)
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.
History
S 29PA(3B) inserted by No 29 of 2023, s 3 and Sch 6 item 202, effective 1 July 2023.
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)
Subsections
(1)
,
(2)
,
(3)
,
(3A)
and
(4)
do not apply to a person if the person has a reasonable excuse for not attending.
History
S 29PA(5) amended by No 29 of 2023, s 3 and Sch 6 item 203, by inserting
"
, (3A)
"
, effective 1 July 2023.
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.
History
S 29PA 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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