Superannuation Industry (Supervision) Act 1993
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View history notePt 2B inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
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Former Div 5 repealed by No 117 of 2012, s 3 and Sch 2 item 33, effective 9 September 2012.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
SECTION 29P CONTENTS OF RISK MANAGEMENT PLANSHistorySubdiv A inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
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.
HistoryS 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
SECTION 29PA REQUIREMENT TO MAINTAIN AND REVIEW RISK MANAGEMENT PLANSHistorySubdiv B inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
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 .
SECTION 29PB MODIFICATIONS ETC. TO RISK MANAGEMENT PLANSHistoryS 29PA inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
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.
SECTION 29PC NOTIFICATION OF MODIFICATIONS ETC. TO RISK MANAGEMENT PLANSHistoryS 29PB inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
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.
HistoryS 29PC inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
Subdivision C - Miscellaneous
SECTION 29PD ACCESS TO RISK MANAGEMENT PLANSHistorySubdiv C inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
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.
SECTION 29PE APRA TO BE GIVEN INFORMATIONHistoryS 29PD inserted by No 53 of 2004, s 3 and Sch 1 item 29, effective 1 July 2004.
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 ).
HistoryS 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.
Subdiv B heading 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.
Subject to subsection (2), if:
(a) an RSE licensee is required to give information to APRA under a reporting standard (within the meaning of the Financial Sector (Collection of Data) Act 2001 ); and
(b) under the reporting standard, the information is required to be calculated in a particular way; and
(c) the same or equivalent information is given by the RSE licensee to a person other than an agency of the Commonwealth or of a State or Territory, whether or not by publishing the information on a website;
the RSE licensee must ensure that the information given to the other person is calculated in the same way as the information given to APRA.
[
CCH Note 1:
ASIC Class Order
[
CO 14
/
541
]
(as amended by ASIC Superannuation (Amendment) Instrument 2018
/
1080
[
F2018L01779
]
) provides relief as below:
Exemption
]
4
A RSE licensee of a registrable superannuation entity does not have to comply with subsection 29QC(1) of the Act until 1 January 2024.
[ CCH Note 2: ASIC Superannuation (Disclosure and Reporting Consistency Obligations) Instrument 2023 / 941 (F2023L01739) continues the relief from compliance with s 29QC(1) previously provided under CO14 / 541 (which has been repealed by ASIC Superannuation (Repeal) Instrument 2023 / 942 (F2023L01738) effective 22 December 2023, as below:
]PART 2 - EXEMPTION
5 Obligation to give consistent information
5
An RSE licensee does not have to comply with subsection 29QC(1) of the Act before 1 January 2026.PART 3 - REPEAL
6 Repeal
6
This instrument is repealed at the start of 1 January 2026.
29QC(2)
Subsection (1) does not apply to information given to the other person in circumstances prescribed by the regulations.
29QC(3)
A person commits an offence if:
(a) the person is:
(i) a body corporate that is an RSE licensee; or
(ii) a member of a group of individual trustees that is an RSE licensee; and
(b) the RSE licensee contravenes subsection (1).
Penalty: 50 penalty units.
29QC(4)
Subsection (3) is an offence of strict liability.
Note 1:
For strict liability, see section 6.1 of the Criminal Code .
Note 2:
Chapter 2 of the Criminal Code sets out the general principles of criminal liability and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
S 29QC inserted by No 171 of 2012 (as amended by No 21 of 2015), s 3 and Sch 3 item 42, effective 1 July 2013. See note under Pt 2B Div 5 heading.
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