Superannuation Industry (Supervision) Act 1993

PART 7 - PROVISIONS APPLYING ONLY TO REGULATED SUPERANNUATION FUNDS

SECTION 68A TRUSTEES MUST NOT USE GOODS OR SERVICES TO INFLUENCE EMPLOYERS

68A(1)

A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:

(a) supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or

(b) supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or

(c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;

if that action could reasonably be expected to:

(d) influence the choice of the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or

(e) influence the person to encourage one or more of the person ' s employees to remain, or apply or agree to be, a member of the fund.

Note:

Under the Superannuation Guarantee (Administration) Act 1992 , employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid an increased individual superannuation guarantee shortfall for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act).

View history note

History

S 68A(1) substituted by No 40 of 2019, s 3 and Sch 9 item 4, effective 6 April 2019. No 40 of 2019, s 3 and Sch 9 item 8, contains the following provision:

8 Changes to ban on incentives for choosing a default fund
8(1)
The amendments made by item 4 of this Schedule, and items 6 and 7 of this Schedule to the extent that the amendments relate to subsection 68A(1) of the Superannuation Industry (Supervision) Act 1993 , apply where a trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund:

(a) supplies, or offers to supply, goods or services to a person, or a relative or associate of a person; or

(b) supplies, or offers to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or

(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
on or after the day on which this Schedule commences.

8(2)
The amendments made by item 5 of this Schedule, and items 6 and 7 of this Schedule to the extent that the amendments relate to subsection 68A(3) of the Superannuation Industry (Supervision) Act 1993 , apply where a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, refuses to:

(a) supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or

(b) supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or

(c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
on or after the day on which this Schedule commences.

S 68A(1) formerly read:

68A(1)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:

(a) supply, or offer to supply, goods or services to a person; or

(b) supply, or offer to supply, goods or services to a person at a particular price; or

(c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person;
on the condition that one or more of the employees of the person will be, or will apply or agree to be, members of the fund.

68A(2)
However, subsection (1) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.

68A(3)

View history reference

A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse to:

(a) supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or

(b) supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or

if it is reasonable to conclude that the refusal is given because:

(d) the person has not chosen the fund as the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or

(e) the person has not encouraged one or more of the person ' s employees to remain, or apply or agree to be, a member of the fund.

Note:

View history note

68A(4)
However, subsection (3) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.

Civil penalty provisions

68A(4A)

View history reference

Subsections (1) and (3) are civil penalty provisions as defined in section 193 , and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections.

View history note

68A(5) Civil liability.

If:

(a) a person (the offender ) contravenes subsection (1) or (3); and

(b) another person (the victim ) suffers loss or damage because of the contravention;

the victim may recover the amount of the loss or damage by action against the offender.

68A(6)
The action must be begun within 6 years after the day on which the cause of action arose.

68A(7)
This section does not affect any liability that the offender or another person has under any other provision of this Act or under any other law.

View history note

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