Superannuation Industry (Supervision) Act 1993

PART 11A - GENERAL FEES RULES

History

Part 11A inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. No 171 of 2012, s 3 and Sch 1 item 41 contains the following application provisions:

41 Application of general fees rules
(1)
Subject to subitems (2) and (3), the amendment made by item 40 of this Schedule applies in relation to:

(a) fees charged, and costs passed on, to members of regulated superannuation funds and approved deposit funds on and after 1 July 2013; and

(b) costs attributed to classes of beneficial interest in a regulated superannuation fund on and after 1 July 2013.

(2)
The amendment made by item 40 of this Schedule does not apply to a fee charged, or a cost passed on, to a member of a regulated superannuation fund or an approved deposit fund to the extent that it relates to a life policy if:

(a) the life policy is one 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; and

(b) the member was covered under the life policy immediately before 1 July 2013.

(3)
The amendment made by item 40 of this Schedule does not apply to a fee charged, or a cost passed on, to a member of a regulated superannuation fund or an approved deposit fund to the extent that it relates to an investment account contract if:

(a) the investment account contract is one under which the only beneficiaries are the member, and relatives and dependants of the member; and

(b) the investment account contract was in force immediately before 1 July 2013.

(4)
In this item:
investment account contract
has the same meaning as in the Life Insurance Act 1995 .

life policy
has the same meaning as in the Life Insurance Act 1995 .

SECTION 99FA COST OF FINANCIAL PRODUCT ADVICE - FEES CHARGED TO MEMBER CONCERNED

View history reference

99FA(1)
The trustee or the trustees of a regulated superannuation fund must not charge against a member ' s interest in the fund the cost of financial product advice provided to the member unless:

(a) the financial product advice is personal advice; and

(c) the trustee or trustees charge the cost in accordance with the terms of a written request or written consent of the member; and

(d) if the arrangement under which the advice is provided is an ongoing fee arrangement - any applicable requirements of Division 3 of Part 7.7A of the Corporations Act 2001 are met in relation to the arrangement and, if relevant, the deduction of ongoing fees; and

(e) if the arrangement under which the advice is provided is not an ongoing fee arrangement - the request or consent satisfies the requirements in subsection (2) ; and

(f) the trustee or trustees have the request or consent, or a copy of it.

Note 1:

The other obligations under this Act, including to act in the best financial interests of the beneficiaries (see paragraph 52(2)(c) ) and to comply with the sole purpose test (see section 62 ), continue to apply to trustees.

Note 2:

See also Division 5 of Part 2C of this Act for fee rules for MySuper products.

Payment of advice fees under an arrangement other than an ongoing fee arrangement

99FA(2)
For the purposes of paragraph (1)(e) , the written request or written consent must include the following:

(a) the name and contact details of the member;

(b) the name and contact details of the provider of the financial product advice;

(c) the name of the fund from which the cost of the advice is requested to be paid;

(d) a brief description of the services the member is entitled to receive under the arrangement;

(e) a request from, or consent by, the member for the cost of the advice to be paid by the trustee and charged against the member ' s interest in the fund;

(f) either:

(i) the amount to be paid for the advice; or

(ii) if the amount to be paid for the advice cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate;

(g) either:

(i) the amount to be charged against the member ' s interest in the fund; or

(ii) if the amount to be charged against the member ' s interest in the fund cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate;

(h) the member ' s signature;

(i) the date the request is made;

(j) any other information prescribed by the regulations.

99FA(3)
For the purposes of paragraph (2)(e) , the Minister may, in writing, approve a form.

99FA(4)
If the Minister has approved a form under subsection (3), a request or consent for the purposes of paragraph (2)(e) must be in the approved form.

Collectively charged fees not covered

99FA(5)
Subsection (1) does not apply if the cost of providing financial product advice is shared between the member mentioned in subsection (1) and other members of the fund.

Note:

For rules on collectively charged fees for the provision of financial product advice, see section 99F .

View history note

History

S 99FA substituted by No 67 of 2024, s 3 and Sch 1 item 2, effective 10 July 2024. No 67 of 2024, s 3 and Sch 1 item 3 contains the following application provision:

3 Application - financial product advice fees charged to a member
(1)
In this item:
new section 99FA
means section 99FA of the Superannuation Industry (Supervision) Act 1993 , as in force immediately after the commencement of this Division.

old section 99FA
means section 99FA of the Superannuation Industry (Supervision) Act 1993 , as in force immediately before the commencement of this Division.

Recommendation 7 amendments
means the amendments made by this Division.

start day
means the day that is 6 months after the day this Division commences.

(2)
The Recommendation 7 amendments apply to costs charged on and after the start day, regardless of whether the arrangement under which the relevant financial product advice is provided is entered into before, on, or after the start day.

(3)
Despite subitem (2), if, immediately before the start day:
(a) an arrangement entered into by a member of a regulated superannuation fund under which financial product advice is provided in relation to the member is in force; and
(b) a written consent of the member that meets the requirements of old section 99FA is in place;
then that written consent is taken to satisfy the requirements of new section 99FA from the start day until the earlier of:

(c) the end of the period of 12 months beginning on the start day; and
(d) the day the arrangement is terminated, renewed, or varied.

S 99FA formerly read:

SECTION 99FA COST OF FINANCIAL PRODUCT ADVICE - FEES CHARGED TO MEMBER CONCERNED
99FA(1)
The trustee or the trustees of a regulated superannuation fund must not directly or indirectly pass the cost of providing financial product advice in relation to a member of the fund on to the member, unless:
(a) the cost is to be paid in accordance with the terms of an arrangement entered into by the member; and
(b) the trustee passes the cost on, or the trustees pass the cost on, in accordance with the terms of a written consent of the member; and
(c) if the arrangement is an ongoing fee arrangement:

(i) the consent is of a kind described in paragraph 962R(2)(a) or 962S(3)(a) of the Corporations Act 2001 ; and

(ii) if requirements that apply in relation to the consent are determined under section 962T of that Act - the consent complies with those requirements; and

(d) if the arrangement is not an ongoing fee arrangement:

(i) the consent is for the trustee or the trustees to directly or indirectly pass the cost of providing financial product advice in relation to the member on to the member; and

(ii) if requirements that apply in relation to the consent are determined under subsection (2) - the consent complies with those requirements; and

(e) the trustee has, or the trustees have, the consent or a copy of the consent.
Note:

If the arrangement is an ongoing fee arrangement, it may be terminated as a result of section 962F or 962FA of the Corporations Act 2001 .

99FA(2)
ASIC may, by legislative instrument, make a determination specifying requirements for the purposes of subparagraph (1)(d)(ii).

[ CCH Note: ASIC Superannuation Consent to Pass on Costs of Providing Advice) Instrument 2021/126 (F2021L00301 as amended: F2023C00647), effective 1 July 2021, states:

PART 1 - PRELIMINARY
4 Definitions
4
In this instrument:
financial product advice
has the meaning given by section 766B of the Corporations Act 2001 .

ongoing fee arrangement
has the meaning given by section 962A of the Corporations Act 2001 .

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

PART 2 - DETERMINATION
5 Requirements for giving written consent to pass on advice costs to member
5(1)
The requirements in this section are specified for the purposes of subparagraph 99FA(1)(d)(ii) of the SIS Act in relation to giving written consent by a member of a regulated superannuation fund to permit the trustee or trustees of the regulated superannuation fund to pass the cost of providing financial product advice in relation to the member on to the member.

5(2)
A written consent may only be given by a member by signing, or otherwise agreeing in writing (including electronically) to the terms of, a written consent which complies with this section and must also bear a date indicating when the consent was given by the member.

5(3)
The written consent must include the following information:
(a) the name of the member at the time the member signs (or otherwise agrees in writing to the terms of) the written consent;
(b) the name and contact details of the fund;
(c) the name and contact details of the person who, at the time the member signs (or otherwise agrees in writing to the terms of) the written consent, is to be the provider of the financial product advice;
(d) an explanation of why the member ' s consent is being sought;
(e) how long the consent will last;
(f) information about the services that the member will be entitled to receive under the arrangement;
(g) as applicable:

(i) where the cost is passed on to the member by way of deducting fees from the member ' s superannuation interest - a statement to that effect, including details of the interest;

(ii) otherwise - an explanation of how the cost is passed on to the member, including details of the interest;

(h) as applicable:

(i) where subparagraph (g)(i) applies:

(A) the amount of the fees to be deducted from the member ' s superannuation interest; or

(B) if the amount of the fees cannot be determined - a reasonable estimate of the amount and an explanation of the method used to work out the estimate;

(ii) where subparagraph (g)(ii) applies:

(A) the amount of the cost; or

(B) if the amount of the cost cannot be determined - a reasonable estimate of the amount of the cost and an explanation of the method used to work out the estimate;

(i) a statement to the effect that the member can withdraw their consent at any time before the cost is passed on to the member by contacting the fund.

5(4)
The written consent must be worded and presented in a clear, concise and effective manner.

]

99FA(3)
Subsection (1) does not apply if the cost is shared by passing it on to the member mentioned in subsection (1) and to other members of the fund.

S 99FA inserted by No 19 of 2021, s 3 and Sch 3 item 3, applicable: (a) in relation to a fee payable under an arrangement entered into on or after 1 July 2021 - on and after 1 July 2021; or (b) in relation to a fee payable under an arrangement entered into before 1 July 2021 - on and after 1 July 2022.

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