Superannuation Safety Amendment Act 2004 (53 of 2004)

Schedule 3   Actuaries, auditors and defined benefit funds

Part 2   Defined benefit funds

Superannuation Industry (Supervision) Act 1993

14   Before section 131

Insert:

130C Actuaries and auditors - failure to implement actuarial recommendations

When section applies

(1) This section applies to a person in relation to a defined benefit fund that is a registrable superannuation entity if:

(a) the person forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:

(i) a report of an actuary obtained under the regulations; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(b) the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions in relation to the entity under this Act or the regulations or the Financial Sector (Collection of Data) Act 2001.

Trustee and Regulator to be told about the matter

(2) Subject to subsection (3), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):

(a) tell a trustee of the fund about the matter in writing; and

(b) if the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of members or beneficiaries of the fund - tell the Regulator about the matter in writing.

The person may not have to tell a trustee or the Regulator about the matter

(3) The person does not have to:

(a) tell a trustee of the fund about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the fund about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person; or

(b) tell the Regulator about the matter if:

(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person.

Penalties for misinformation

(4) A person (the first person ) commits an offence if:

(a) this section applies to the first person; and

(b) the first person is aware of a matter that must, under this section, be told to a trustee; and

(c) the first person tells another person to whom this section applies that the first person has told a trustee about the matter; and

(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(4A) A person (the first person ) commits an offence if:

(a) this section applies to the first person; and

(b) the first person is aware of a matter that must, under this section, be told to the Regulator; and

(c) the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and

(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

No civil liability for telling about a matter

(5) A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the fund, about a matter as required by this section.

Offences

(6) A person is guilty of an offence if the person contravenes subsection (2).

Penalty: 50 penalty units.

(7) A person is guilty of an offence if the person contravenes subsection (2). 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.