Superannuation Legislation Amendment (Stronger Super) Act 2012 (91 of 2012)

Schedule 1   Data and payment standards relating to superannuation and retirement savings

Part 1   Main amendments

Retirement Savings Accounts Act 1997

1   After Part 4

Insert:

Part 4A - Data and payment regulations and standards relating to RSAs

Division 1 - Data and payment regulations and standards relating to RSAs

45 Object of Part

(1) The object of this Part is to further the interests of holders of RSAs by improving the productivity of the retirement savings account system.

(2) The Part does this by providing for a system of standards relating to payments and information connected with the operation of RSAs.

45A Alternative constitutional basis

Without limiting its effect apart from this section, this Part also has the effect it would have if each reference to an employer were, by express provision, confined to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.

45B Data and payment regulations and standards relating to RSAs

(1) The regulations may make provision for and in relation to data and payment matters relating to RSAs, to be complied with by:

(a) RSA providers; and

(b) employers in their dealings with RSA providers.

(2) The regulations may prescribe different requirements for different classes of RSA or employer.

(3) The Commissioner of Taxation may, by legislative instrument, determine standards ( data and payment standards relating to RSAs ) relating to data and payment matters relating to RSAs, applicable to:

(a) RSA providers; and

(b) employers in their dealings with RSAs.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(4) The data and payment standards relating to RSAs may specify different requirements for different classes of RSA or employer.

(5) A data and payment matter relating to RSAs is a matter relating to the manner in which payments and information of a kind mentioned in subsection (6):

(a) relating to:

(i) a holder of an RSA; or

(ii) an employee for whose benefit a contribution to an RSA is to be made by an employer; and

(b) connected with the operation of the RSA;

are dealt with.

(6) The kinds of payments and information are:

(a) transactions, including payments, contributions, roll-over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997), allocations, transfers and refunds; and

(b) reports; and

(c) records, including registrations; and

(d) unique identifiers for use with such transactions, reports and records; and

(e) any other kind of payment or information that is prescribed by the regulations for the purposes of this paragraph; and

(f) to avoid doubt, any payment or information of a kind mentioned in paragraphs (a) to (e) and made or provided by the Commissioner of Taxation.

Adoption of other instruments

(7) The regulations or standards may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

(8) Subsection (7) has effect despite anything in subsection 14(2) of the Legislative Instruments Act 2003.

Consultations in preparing data and payment standards relating to RSAs

(9) The Commissioner of Taxation must consult with APRA in preparing the data and payment standards relating to RSAs.

Note: For further consultation requirements, see section 17 of the Legislative Instruments Act 2003.

(10) A failure to comply with subsection (9) does not affect the validity or enforceability of the data and payment standards relating to RSAs.

45C Relationship between standards and other law

(1) A data and payment standard relating to RSAs may elaborate or supplement any aspect of regulations made under this Part.

(2) However, a data and payment standard relating to RSAs is of no effect to the extent that it conflicts with this Act or regulations made under this Act.

Division 2 - Compliance with data and payment regulations and standards relating to RSAs

45D Compliance requirement - RSA providers

(1) An RSA provider must ensure that payments and information relating to a holder of an RSA, or a person for whose benefit a contribution to the RSA is to be made, are dealt with in a manner that complies with any applicable:

(a) regulations made under this Part; and

(b) data and payment standards relating to RSAs.

Note: Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

(2) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 20 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

(3) A contravention of subsection (1) does not affect the validity of a transaction.

45E Compliance requirement - employers

(1) An employer must deal with payments and information relating to an employee, for whose benefit a contribution to an RSA is to be made, in a manner that complies with any applicable:

(a) regulations made under this Part; and

(b) data and payment standards relating to RSAs.

Note: Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

(2) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 20 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

(3) A contravention of subsection (1) does not affect the validity of a transaction.

45F Regulator’s power to give directions in certain circumstances - RSA providers

(1) The Regulator may give an RSA provider a direction of a kind specified in subsection (4) if the Regulator reasonably believes that the RSA provider has contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular data and payment standard relating to RSAs.

(2) In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:

(a) the extent (if any) to which the RSA provider is operating in a way that is contrary to the object of this Part;

(b) any other matter that the Regulator considers relevant.

(3) The direction must be given by notice in writing to the RSA provider.

(4) The kinds of direction that an RSA provider may be given are directions to do any one or more of the following by a specified time:

(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);

(b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection).

(5) The time specified in the direction must be 21 days or more after the day the direction is given.

(6) The RSA provider must comply with the direction by the specified time.

Note: Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

(7) A person commits an offence of strict liability if the person contravenes subsection (6).

Penalty: 50 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

(8) The Regulator may, by notice in writing to the RSA provider, vary the direction or the time specified if, at the time of the variation, the Regulator considers that the variation is necessary and appropriate.

(9) The direction has effect until the Regulator revokes it by notice in writing to the RSA provider. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

45G Regulator’s power to give directions in certain circumstances - employers

(1) The Regulator may give an employer a direction of a kind specified in subsection (4) if the Regulator reasonably believes that the employer has contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular data and payment standard relating to RSAs.

(2) In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:

(a) the extent (if any) to which the employer is dealing with an RSA provider in a way that is contrary to the object of this Part;

(b) any other matter that the Regulator considers relevant.

(3) The direction must be given by notice in writing to the employer.

(4) The kinds of direction that the employer may be given are directions to do any one or more of the following by a specified time:

(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);

(b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection).

(5) The time specified in the direction must be 21 days or more after the day the direction is given.

(6) The employer must comply with the direction by the specified time.

Note: Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

(7) A person commits an offence of strict liability if the person contravenes subsection (6).

Penalty: 50 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

(8) The Regulator may, by notice in writing to the employer, vary the direction or the time specified if, at the time of the variation, it considers that the variation is necessary and appropriate.

(9) The direction has effect until the Regulator revokes it by notice in writing to the employer. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

Division 3 - Infringement notices

45H When an infringement notice may be given

(1) If the Regulator has reasonable grounds to believe that a person has contravened an offence of strict liability in Division 2, the Regulator may give to the person an infringement notice for the alleged contravention.

(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

(3) A single infringement notice may be given to a person in respect of:

(a) 2 or more alleged contraventions of an offence of strict liability in Division 2; and

(b) alleged contraventions of 2 or more offences of strict liability in Division 2.

45J Matters to be included in notice

(1) An infringement notice must:

(a) state the day on which it is given; and

(b) state the name of the person to whom it is given; and

(c) state the name of the person who gave the notice; and

(d) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose for the contravention; and

(iii) the time (if known) and day of, and the place of, the alleged contravention; and

(e) state the amount that is payable under the notice; and

(f) give an explanation of how payment of the amount is to be made; and

(g) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) the person is not liable to be prosecuted in a court in relation to the alleged contravention; and

(h) state that payment of the amount is not an admission of guilt or liability; and

(i) state that the person may apply to the Regulator to have the period in which to pay the amount extended; and

(j) state that the person may choose not to pay the amount and, if the person does so, the person may be prosecuted in a court in relation to the alleged contravention; and

(k) set out how the notice can be withdrawn; and

(1) state that if the notice is withdrawn:

(i) any amount paid under the notice must be refunded; and

(ii) the person may be prosecuted in a court for the alleged contravention; and

(m) state that the person may make written representations to the Regulator seeking the withdrawal of the notice.

(2) For the purposes of paragraph (1)(e), the amount to be stated in the notice for the alleged contravention of the provision must be equal to one-fifth of the maximum penalty that a court could impose on the person for that contravention.

45K Extension of time to pay amount

(1) A person to whom an infringement notice has been given may apply to the Regulator for an extension of the period referred to in paragraph 45J(1)(g).

(2) If the application is made before the end of that period, the Regulator may, in writing, extend that period. The Regulator may do so before or after the end of that period.

(3) If the Regulator extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 45J(1)(g) is taken to be a reference to that period so extended.

(4) If the Regulator does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 45J(1)(g) is taken to be a reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in paragraph 45J(1)(g);

(b) the day that is 7 days after the day the person was given notice of the Regulator’s decision not to extend.

(5) The Regulator may extend the period more than once under subsection (2).

45L Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may, within 21 days after the day the notice is given, make written representations to the Regulator seeking the withdrawal of the notice.

Withdrawal of notice

(2) The Regulator may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).

(3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the Regulator:

(a) must take into account any written representations seeking the withdrawal that were given by the person to the Regulator; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the person for a contravention of an offence of strict liability in Division 2;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of an offence of strict liability in Division 2 if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;

(iv) any other matter the Regulator considers relevant.

Notice of withdrawal

(4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:

(a) the person’s name and address; and

(b) the day the infringement notice was given; and

(c) that the infringement notice is withdrawn; and

(d) that the person may be prosecuted in a court in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

(5) If:

(a) the Regulator withdraws the infringement notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to the amount paid.

45M Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 45J(1)(g):

(a) any liability of the person for the alleged contravention is discharged; and

(b) the person may not be prosecuted in a court for the alleged contravention; and

(c) the person is not regarded as having been convicted of the alleged offence; and

(d) the person is not regarded as having admitted guilt or liability for the alleged contravention.

(2) Subsection (1) does not apply if the notice has been withdrawn.

45N Effect of this Division

This Division does not:

(a) require an infringement notice to be given to a person for an alleged contravention of an offence of strict liability in Division 2; or

(b) affect the liability of a person for an alleged contravention of an offence of strict liability in Division 2 if:

(i) the person does not comply with an infringement notice given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the contravention; or

(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or

(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of an offence of strict liability in Division 2; or

(d) limit a court’s discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened an offence of strict liability in Division 2.

Division 4 - Correction and rectification of information

45P Correction and rectification of information

(1) The Commissioner of Taxation may alter information in his or her possession for the purposes of ensuring the information complies with:

(a) any applicable regulations made under this Part; and

(b) any applicable data and payment standards relating to RSAs.

(2) An alteration made by the Commissioner of Taxation under subsection (1) does not have the effect of discharging any liability of a person for a contravention of a provision of this Part relating to the information.