Superannuation Legislation Amendment Act (No. 3) 1999 (121 of 1999)

Schedule 1 Amendment of the Superannuation Industry (Supervision) Act 1993 relating to self managed superannuation funds

Part 1 Regulation of self managed superannuation funds

56 After Part 24A

Insert:

Part 24B - Provisions relating to the administration by APRA and the Commissioner of Taxation of superannuation funds with fewer than 5 members

Division 1 - Monitoring of superannuation funds with fewer than 5 members

252A APRA or Commissioner of Taxation may request certain information

Notice may be given

(1) APRA or the Commissioner of Taxation may give a written notice under this section to the trustee of a regulated superannuation fund if APRA or the Commissioner of Taxation, as the case requires, considers that the fund has fewer than 5 members.

Information that may be requested

(2) The notice may require the trustee, within a specified period (which must not be shorter than 21 days), to inform APRA or the Commissioner of Taxation:

(a) whether or not the fund was a self managed superannuation fund as at the date (the response date ) on which the trustee so informed APRA or the Commissioner of Taxation; or

(b) if the fund was not a self managed superannuation fund as at the response date - whether, in the trustees' opinion, the fund is likely to become a self managed superannuation fund within the period specified in the notice; and

(c) if the fund was a self managed superannuation fund as at the response date - whether, in the trustees' opinion, the fund is likely to cease to be a self managed superannuation fund within the period specified in the notice.

Offence

(3) A person who contravenes subsection (2) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.

Strict liability

(4) An offence under subsection (3) is an offence of strict liability.

252B Contravention notices

Service of notice

(1) If APRA or the Commissioner of Taxation has reason to believe that a person has contravened section 252A, APRA or the Commissioner of Taxation, as the case requires, may cause a notice (a contravention notice ) to be served on the person in accordance with the regulations.

Particulars

(2) A contravention notice is to set out:

(a) particulars of the alleged contravention; and

(b) the prescribed penalty for the contravention and the person to whom, the place at which, and the manner in which, the penalty may be paid; and

and may contain any other particulars that APRA or the Commissioner of Taxation thinks necessary.

Notification that person may pay prescribed penalty

(3) A contravention notice is to state that, if the person does not wish the matter to be dealt with by a court, the person may lodge with APRA or the Commissioner of Taxation, as the case requires, a signed statement to that effect in the manner stated in the notice and pay the prescribed penalty for the contravention.

Prescribed penalty

(4) For the purposes of this section, the prescribed penalty for a contravention is 2 penalty units for each month or part of a month during which the contravention continues, up to a maximum of 10 penalty units.

Consequences of payment of prescribed penalty

(5) If:

(a) a contravention notice has been served on a person; and

(b) before the end of the period of 14 days stated in the notice, or, if APRA or the Commissioner of Taxation allows, at any time before service of the summons in respect of the contravention, the amount of the prescribed penalty is paid in accordance with the notice; and

(c) a statement, signed by the person, to the effect that the person does not wish the matter to be dealt with by a court, is received by the person to whom the amount of penalty is paid; and

(d) the contravention that resulted in the service of the contravention notice has ceased;

the following provisions have effect:

(e) any liability of the person in respect of the contravention is taken to be discharged;

(f) no further proceedings are to be taken in respect of the contravention;

(g) no conviction for the contravention is taken to have been recorded.

Payment by cheque

(6) If the amount of the prescribed penalty is paid by cheque, payment is taken not to be made unless the cheque is honoured upon presentation.

Other proceedings not affected

(7) Except as provided by subsection (5), this section does not prejudice or affect the institution or prosecution of proceedings in respect of a contravention of section 252A or limit the amount of the fine that may be imposed by a court in respect of such contravention.

No requirement to serve contravention notice

(8) This section does not require the service of a contravention notice or affect the liability of a person to be prosecuted in a court in respect of a contravention of section 252A in relation to which a contravention notice has not been served.

Division 2 - Secrecy provisions relating to Commissioner of Taxation

252C Secrecy - general obligations

(1) In this section:

Act covered by this section means any of the following Acts:

(a) the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987;

(b) the Superannuation (Self Managed Superannuation Funds) Supervisory Levy Imposition Act 1991;

court includes a tribunal, authority or person having the power to require the production of documents or the answering of questions.

financial sector supervisory agency means a person or body having the function, in Australia or in a foreign country, of supervising or regulating financial institutions.

officer means:

(a) the Commissioner of Taxation; or

(b) a taxation officer; or

(i) has acquired protected information; or

(ii) has had access to protected documents;

other than an employee of the body to which the information or document relates.

protected document means a document given or produced (whether before or after the commencement of this section) under, or for the purposes of, this Act or an Act covered by this section and containing information relating to the affairs of:

(a) a self managed superannuation fund; or

(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related to a body corporate that is the trustee of a self managed superannuation fund; or

other than information that has already been lawfully made available to the public from other sources.

protected information means information disclosed or obtained (whether before or after the commencement of this section) under, or for the purposes of, this Act or an Act covered by this section and relating to the affairs of:

(a) a self managed superannuation fund; or

(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related to a body corporate that is the trustee of a self managed superannuation fund; or

other than information that has already been lawfully made available to the public from other sources.

(2) A person who is or has been an officer is guilty of an offence if:

(a) the person directly or indirectly:

(i) discloses information acquired in the course of his or her duties as an officer to any person or to a court; or

(ii) produces a document to any person or to a court; and

(b) the information is protected information, or the document is a protected document; and

Maximum penalty: Imprisonment for 2 years.

(3) It is not an offence if the disclosure of protected information or the production of a protected document by a person is for the purposes of this Act or an Act covered by this section.

(4) It is not an offence if the disclosure of protected information or the production of a protected document by a person:

(a) is by an employee of the person to whose affairs the information or document relates; or

(b) occurs after the person to whose affairs the information or document relates has agreed in writing to the disclosure or production.

(5) It is not an offence if the disclosure of protected information or the production of a protected document by a person:

(a) occurs when the person is satisfied that the disclosure of the information, or the production of the document, will assist a financial sector supervisory agency, or any other agency (including foreign agencies), specified in the regulations, to perform its functions or exercise its powers and the disclosure or production is to that agency; or

(b) is to another person and is approved by the Commissioner of Taxation by instrument in writing.

Note: See subsection (9) for conditions that may be imposed on people making disclosures under this subsection.

(6) It is not an offence if the disclosure of protected information or the production of a protected document is to:

(a) the Commissioner of Taxation; or

(b) a taxation officer;

for the purposes of the performance of the functions or the exercise of the powers of the Commissioner of Taxation under a law of the Commonwealth or of a State or Territory.

(7) It is not an offence if the information, or the information contained in the document, as the case may be, is in the form of a summary or collection of information that is prepared so that information relating to any particular person cannot be found out from it.

(8) A person who is, or has been, an officer cannot be required to disclose to a court any protected information or to produce in a court a protected document, except when it is necessary to do so for the purposes of this Act or an Act covered by this section.

(9) The regulations may impose conditions in relation to the disclosure of information or the production of a document under this section, with which a person who discloses the information or produces the document must comply.

(10) A person is guilty of an offence if the person fails to comply with a condition imposed under subsection (9).

Maximum penalty: Imprisonment for 2 years.

(11) A document that:

(a) is a protected document; or

(b) contains protected information;

is an exempt document for the purposes of section 38 of the Freedom of Information Act 1982.

Note: The Privacy Act 1988 also contains provisions relevant to the disclosure of information.

Division 3 - Transitional and savings provisions relating to the regulation of self managed superannuation funds by the Commissioner of Taxation

252D Definition

In this Division:

commencement day means the day on which section 1 of the Superannuation Legislation Amendment Act (No. 3) 1999 commenced.

252E Instruments made or issued by APRA or by the Commissioner of Taxation

Instruments made by APRA

(1) An instrument that:

(a) relates to a superannuation fund; and

(b) was in force immediately before a particular time (the switching time ); and

(i) immediately before the switching time, was administered by APRA in relation to the fund; and

(ii) as at the switching time, is administered by the Commissioner of Taxation in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been made or issued by the Commissioner of Taxation.

Instruments made by Commissioner of Taxation

(2) An instrument that:

(a) relates to a superannuation fund; and

(b) was in force immediately before a particular time (the switching time ); and

(i) immediately before the switching time, was administered by the Commissioner of Taxation in relation to the fund; and

(ii) as at the switching time, is administered by APRA in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been made or issued by APRA.

Instruments for a limited period

(3) If an instrument referred to in this section was, when made, to have effect only for a limited period, it has effect only for so much of the period as has not already expired before the switching time.

Instruments not in operation

(4) A reference in this item to an instrument in force includes a reference to an instrument that has been made but is not yet in operation.

252F Obligations owed by or to APRA or the Commissioner of Taxation

(1) Subject to section 252G, an obligation that:

(a) relates to a superannuation fund; and

(b) was owed by APRA, or to APRA, immediately before a particular time (the switching time ); and

(i) immediately before the switching time, was administered by APRA in relation to the fund; and

(ii) as at the switching time, is administered by the Commissioner of Taxation in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been owed by, or to, the Commissioner of Taxation.

Rights and powers of APRA

(2) Subject to section 252G, a right or power that:

(a) relates to a superannuation fund; and

(b) was possessed by, or conferred on, APRA immediately before a particular time (the switching time ); and

(i) immediately before the switching time, was administered by APRA in relation to the fund; and

(ii) as at the switching time, is administered by the Commissioner of Taxation in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been possessed by, or conferred on, the Commissioner of Taxation.

Obligations owed by, or to, the Commissioner of Taxation

(3) An obligation that:

(a) relates to a superannuation fund; and

(b) was owed by the Commissioner of Taxation, or to the Commissioner of Taxation, immediately before a particular time (the switching time ); and

(i) immediately before the switching time, was administered by the Commissioner of Taxation in relation to the fund; and

(ii) as at the switching time, is administered by APRA in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been owed by, or to, APRA.

Rights and powers of the Commissioner of Taxation

(4) A right or power that:

(a) relates to a superannuation fund; and

(b) was possessed by, or conferred on, the Commissioner of Taxation immediately before a particular time (the switching time ); and

(i) immediately before the switching time, was administered by the Commissioner of Taxation in relation to the fund; and

(ii) as at the switching time, is administered by APRA in relation to the fund;

has effect, at and after the switching time (subject to any later application of this section), as if it had been possessed by, or conferred on, APRA.

252G Outstanding annual returns and amounts

Outstanding annual returns etc. - self managed funds

(1) If:

(a) a superannuation fund was a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, the trustee of the fund was under an obligation to give to APRA an annual return in respect of a previous year of income, or any other report or information under this Act;

the trustee of the fund is taken (subject to any later application of this section) to be under an obligation, beginning immediately after that time, to give the annual return, report or information to the Commissioner of Taxation. The annual return, report or information is to be given in the approved form.

Note: This provision only affects annual returns outstanding from years before the designated year of income. The trustee will still be required to submit a return under section 36A for the designated year of income (and also under section 36 if the fund changed status during the designated year of income). Levy will be payable on lodgment of any such return.

Outstanding annual returns etc. - other funds

(2) If:

(a) a superannuation fund was a fund other than a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, the trustee of the fund was under an obligation to give to the Commissioner of Taxation an annual return in respect of a previous year of income, or any other report or information under this Act;

the trustee of the fund is taken (subject to any later application of this section) to be under an obligation, beginning immediately after that time, to give the annual return, report or information to APRA. The annual return, report or information is to be given in the approved form.

Note: This provision only affects annual returns outstanding from years before the designated year of income. The trustee will still be required to submit a return under section 36 for the designated year of income (and also under section 36A if the fund changed status during the designated year of income). Levy will be payable on lodgment of any such return.

Outstanding levy - self managed funds

(3) If:

(a) a superannuation fund was a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, an amount was payable by the trustee of the superannuation fund to APRA on behalf of the Commonwealth under a prescribed Act in respect of a previous year of income;

then:

(c) the amount is taken (subject to any later application of this section) to be payable by the trustee of the superannuation fund, immediately after the that time, to the Commissioner of Taxation on behalf of the Commonwealth; and

(d) the Commissioner of Taxation has the same power to waive or remit the amount as APRA would have had if this subsection had not been enacted.

Outstanding levy - other funds

(4) If:

(a) a superannuation fund was a fund other than a self managed superannuation fund at either of the following times:

(i) the end of the last day of a designated year of income; or

(ii) if the fund ceased to exist during a designated year of income - the time at which the fund ceased to exist; and

(b) at that time, an amount was payable by the trustee of the superannuation fund to the Commissioner of Taxation under a prescribed Act in respect of a previous year of income;

then:

(c) the amount is taken (subject to any later application of this section) to be payable by the trustee of the superannuation fund, immediately after that time, to APRA on behalf of the Commonwealth; and

(d) APRA has the same power to waive or remit the amount as the Commissioner of Taxation would have had if this subsection had not been enacted.

Regulations

(5) The regulations may prescribe exceptions to the rules set out in subsections (1) to (4), including, but not limited to the following:

(a) prescribing that, in specified circumstances, the trustee of a superannuation fund is taken to be under an obligation to give a return, report or information to APRA rather than to the Commissioner of Taxation, or to the Commissioner of Taxation rather than to APRA;

(b) prescribing that, in specified circumstances, an amount is taken to be payable by the trustee of a superannuation fund to APRA rather than to the Commissioner of Taxation, or to the Commissioner of Taxation rather than to APRA.

Definitions

(6) In this section:

amount means an amount of levy or an amount of late payment penalty.

designated year of income means the 1999-2000 year of income or a later year of income.

prescribed Act means the following:

(a) the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987;

(b) the Financial Institutions Supervisory Levies Collection Act 1998;

252H Regulations

The regulations may deal with other transitional matters arising from the enactment of the Superannuation Legislation Amendment Act (No. 3) 1999.

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