Superannuation Industry (Supervision) Act 1993

PART 2C - MYSUPER

History

Pt 2C inserted by No 162 of 2012, s 3 and Sch 1 item 9, effective 1 January 2013. No 162 of 2012 (as amended by No 61 of 2013), s 3 and Sch 1 Part 2 items 10 - 13 contain the following application provisions:

Part 2 - Application and transitional provisions
10 Definitions
10
In this Part:
SG Act
means the Superannuation Guarantee (Administration) Act 1992 .

SIS Act
means the Superannuation Industry (Supervision) Act 1993 .
11 Authority to offer a MySuper product given before 1 July 2013
11
If, before 1 July 2013, APRA authorises an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, that authority takes effect on 1 July 2013. 11A Enhanced trustee obligations - decisions made before 1 July 2013
Decision to give, or refuse to give, authority to offer a MySuper product

11A(1)
Subitem (2) applies if, before 1 July 2013, APRA makes a decision under section 29T of the SIS Act to give, or refuse to give, an RSE licensee authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.

11A(2)
APRA ' s decision is not invalid merely because the enhanced trustee obligations do not commence until 1 July 2013, provided subitem (3) or (4) has been complied with.

11A(3)
If the decision is to give authority, APRA must be satisfied at the time it makes the decision that it is likely that on and after 1 July 2013:

(a) where the RSE licensee is a body corporate - the RSE licensee; or

(b) where the RSE licensee is made up of a group of individual trustees - each of those individual trustees;
will comply with the enhanced trustee obligations for MySuper products that will come into force on that day.

11A(4)
If the decision is to refuse to give authority on the ground that:

(a) where the RSE licensee is a body corporate - the RSE licensee; or

(b) where the RSE licensee is made up of a group of individual trustees - each of those individual trustees;
will not comply with the enhanced trustee obligations for MySuper products that will come into force on 1 July 2013, APRA must be satisfied at the time it makes the decision that it is not likely that the person will satisfy those obligations on and after 1 July 2013.

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History

S 11A inserted by No 61 of 2013, s 3 and Sch 1 item 120, effective 26 June 2013.

12 Applications for authority to offer a MySuper product for a large employer
12(1)
This item applies if:

(a) an RSE licensee makes an application to APRA before 1 July 2013 under section 29S of the SIS Act for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and

(b) the application is made on the basis that the class of interest is one in relation to which section 29TB of the SIS Act is satisfied.

12(2)
Section 29SB of the SIS Act (period for considering the application) applies as if:

(a) the application were received on 1 July 2013; and

(b) the references in paragraphs (1)(a) and (b) of that section to " 60 days " were instead references to " 120 days " .

12(3)
Sections 29WA and 29WB of the SIS Act (contributions in relation to which no election made) do not apply in relation to a contribution if:

(a) the contribution is made during the period in which APRA decides the application (see section 29SB of the SIS Act); and

(b) the contribution is paid into the class of beneficial interest to which the application relates.
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History

S 12(3) amended by No 61 of 2013, s 3 and Sch 1 item 121, by substituting " Sections 29WA and 29WB of the SIS Act (contributions in relation to which no election made) do not apply " for " Section 29WA of the SIS Act (contributions in relation to which no election made) does not apply " , effective 27 June 2013.

12(4)
On and after 1 January 2014, a contribution to the fund is taken to satisfy paragraph 32C(2)(c) of the SG Act (employer ' s superannuation guarantee obligation) if the contribution is made during the period in which APRA decides the application (see section 29SB of the SIS Act).

12(5)
If APRA refuses the application, then:

(a) a contribution to the fund made on or after 1 January 2014 is taken to satisfy paragraph 32C(2)(c) of the SG Act, provided it is made before the end of the grace period; and

(b) sections 29WA and 29WB of the SIS Act do not apply in relation to a contribution to the fund made on or after 1 January 2014, provided it is paid into the class of beneficial interest to which the application relates before the end of the grace period.
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History

S 12(5) amended by No 61 of 2013, s 3 and Sch 1 item 122, by substituting " sections 29WA and 29WB of the SIS Act do not apply " for " section 29WA of the SIS Act does not apply " in para (b), effective 27 June 2013.

12(6)
For the purposes of subitem (5), the grace period is a period of 3 months beginning on the day on which APRA refuses the application.
13 Contributions in relation to which no election made
13
Sections 29WA and 29WB of the SIS Act apply to contributions made to a regulated superannuation fund on or after 1 January 2014.
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S 13 amended by No 61 of 2013, s 3 and Sch 1 item 123, by substituting " Sections 29WA and 29WB of the SIS Act apply " for " Section 29WA of the SIS Act applies " , effective 27 June 2013.

Division 7 - Offences

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SECTION 29WA CONTRIBUTIONS IN RELATION TO WHICH NO ELECTION IS MADE ARE TO BE PAID INTO MYSUPER PRODUCT

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29WA(1)
This section applies if:

(a) a person is a member of a regulated superannuation fund (other than a defined benefit member); and

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(b) a contribution to the fund is made for the benefit of the person; and

(c) either:

(i) the person has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or

(ii) the person has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution.

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29WA(2)

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The trustee, or trustees, of the fund must treat any contribution to the fund in relation to which no direction has been given, and any part of a contribution to the fund in relation to which no direction has been given, as a contribution to be paid into a MySuper product of the fund.

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29WA(3)
A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Penalty: 50 penalty units.

Note 1:

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 2:

For strict liability, see section 6.1 of the Criminal Code .

Directions

29WA(4)

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For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:

(a) the direction was not given in writing; or

(b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.

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29WA(5)

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The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.

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Exception - life policies, investment account contracts and cash investment options

29WA(6)

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If an asset (or assets) attributed to the person mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:

(a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;

(b) a life policy under which the benefit to the person (or a relative or dependant of the person) is based only on the realisation of a risk, not the performance of an investment;

(c) an investment account contract the only beneficiaries of which are the person, and relatives and dependants of the person;

(d) an investment option under which the investment is held as cash;

subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the person is invested in the life policy, under the investment account contract or in the cash investment option.

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[ CCH Note: No 171 of 2012 (as amended by No 61 of 2013), s 3 and Sch 4 item 13 contains the following transitional provision:

13 Section 29WA of SIS Act not apply to contributions made under certain enterprise agreements

13(1)
This item applies if:

(a) an enterprise agreement is approved by the FWC before 1 January 2014; and

(b) at the time the agreement is approved by the FWC, the agreement includes a term that has the effect of requiring or permitting contributions, for the benefit of an employee (the relevant employee ) covered by the agreement who is a default fund employee, to be made to a superannuation fund or scheme that is specified in the agreement but does not satisfy one of the following:

(i) it is a fund that offers a MySuper product;

(ii) it is a fund or scheme of which the relevant employee, and each other default fund employee in relation to whom contributions are made to the fund or scheme by the same employer as the relevant employee, is a defined benefit member;

(iii) it is an exempt public sector superannuation scheme; and

(c) on or after 1 January 2014, one or more contributions (the relevant contributions ) are made to the fund or scheme under, or in accordance with, the agreement.
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History

S 13(1) amended by No 61 of 2013, s 3 and Sch 1 item 119A, by substituting " the FWC " for " FWA " (wherever occurring), effective 1 January 2013.

13(2)
Section 29WA of the SIS Act does not apply to the relevant contributions.

13(3)
In this item:
default fund employee
has the same meaning as in the Fair Work Act 2009 .

defined benefit member
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 .

enterprise agreement
has the same meaning as in the Fair Work Act 2009 .

exempt public sector superannuation scheme
has the same meaning as in the SIS Act.

FWA
(Repealed by No 61 of 2013)
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History

Definition of " FWA " repealed by No 61 of 2013, s 3 and Sch 1 item 119B, effective 1 January 2013. The definition formerly read:

FWA
has the same meaning as in the Fair Work Act 2009 .

FWC
has the same meaning as in the Fair Work Act 2009 .
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History

Definition of " FWC " inserted by No 61 of 2013, s 3 and Sch 1 item 119C, effective 1 January 2013.

MySuper product
has the same meaning as in the SIS Act.

SIS Act
means the Superannuation Industry (Supervision) Act 1993 .

]

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