Explanatory Memorandum
(Circulated by authority of the Minister for Financial Services and Regulation, the Honourable J.B. Hockey, MP)13 - Schedule 10 - Other amendments of the Superannuation Industry (Supervision) Act 1993
| Schedule 10 amends the Superannuation Industry (Supervision) Act 1993 to extend the range of information required under the SIS Act that may be submitted in electronic form. The schedule also contains consequential amendments to improve the efficiency of arrangements for the lodgement of information required under the SIS Act, including lodgement in electronic form. |
| Furthermore, the amendments propose to strengthen the safeguards against misuse or fraud in relation to electronic lodgement. Penalty provisions will apply to unauthorised or fraudulent use or submission by electronic means of election notices and other information required under the SIS Act. |
| The schedule also contains amendments to remove the SIS Act requirement for the affixing of a common seal to election notices, and makes other minor amendments. |
13.1 Items 1, 2, 4, 6, 7, 9 and 10 will commence on the day on which the Bill receives Royal Assent.
13.2 The remaining items in schedule 10 will commence on a date to be fixed by proclamation.
Amendment of subsection 6(1) of the SIS Act
13.3 These items respectively amend subparagraph 6(1)(a)(viii) and repeal subparagraph 6(1)(c)(iii) of the SIS Act, the effect of which is to transfer responsibility for the administration of section 140 of the Act from ASIC to APRA.
13.4 The item repeals the current definition of approved form in subsection 10(1) of the SIS Act and replaces it with a new meaning given in section 11A (item 5).
13.5 This item inserts a new definition of signed in subsection 10(1) of the SIS Act.
New Sections 11A, 11B, 11C and 11D
13.6 This item inserts new sections 11A, 11B, 11C and 11D in the SIS Act. Section 11A sets out requirements that apply where a document or information is required to be lodged in a form approved by the Regulator (an approved form ).
13.7 Subsection 11A(2) provides that an approved form may specify what information must be contained in the completed form.
13.8 Subsection 11A(3) provides that an approved form may require or permit the form to be attached to, or form part of, another document, and/or to be lodged in electronic format, in accordance with specifications determined by the Regulator.
13.9 Subsection 11A(4) provides that an approved form may require the form to be signed.
13.10 Subsection 11A(5) provides that an approved form may make different requirements to be complied with depending on whether or not it is lodged electronically.
13.11 Subsection 11A(6) provides that a purported use of an approved form will not be effective unless any requirements that may be specified under subsections (2), (3) or (4) have been complied with.
13.12 Subsection 11B(1) provides that an approved form lodged in electronic format under paragraph 11A(3)(b) is taken to constitute a written notice, and if the form contains an electronic signature of a person the form is taken to be signed by that person.
13.13 Subsection 11B(2) provides that a persons electronic signature is a unique identification, in an electronic form, which is approved by the Regulator.
13.14 Subsection 11B(3) makes it an offence to misuse electronic lodgement procedures. In particular, a person is guilty of an offence if the person lodges an approved form in electronic format under paragraph 11A(3)(b) and either the form purports to be given by another person, or purports to be given on behalf of another person, and that person has not consented to the giving of the form.
13.15 Subsection 11B(4) makes it an offence to give the Regulator an approved form in electronic format under paragraph 11A(3)(b) if the form contains the electronic signature of another person who has not consented to the inclusion of the signature.
13.16 Subsection 11B(5) provides that subsections (3) and (4) are offences of strict liability under the Criminal Code .
13.17 Section 11C applies where a person gives an approved form to the Regulator by electronic means under paragraph 11A(3)(b) on behalf of a trustee or trustees (the responsible trustee ). Subsection 11C(2) requires that the responsible trustee must first make a signed declaration stating that the person is authorised to give the form to the Regulator on the responsible trustees behalf, and that the responsible trustee agrees that the information in the form is correct. Failure to do so is an offence on the part of the responsible trustee.
13.18 Subsection 11C(3) makes it an offence if the responsible trustee does not retain the declaration referred to in subsection 11C(2) for 5 years after it is made.
13.19 Subsection 11C(4) makes it an offence for the responsible trustee to fail to comply with a request from the Regulator to produce the declaration within the 5 year period mentioned in subsection 11C(3).
13.20 Subsection 11C(5) provides that subsections 11C(2), (3) and (4) are offences of strict liability within the meaning of the Criminal Code .
13.21 Subsection 11D(1) provides that a document that is not required to be lodged in an approved form may be lodged electronically only if the Regulator and the person seeking to lodge the document have agreed in writing that it may be lodged electronically, and the Regulator has approved in writing the electronic lodgement of documents of that kind. Subsection 11D(2) provides that a document is taken to be lodged with the Regulator only if it conforms to the relevant agreement or approval (including any requirements as to authentication).
Removal of Requirement for Common or Official Seal
13.22 This item amends paragraph 18(3)(b) of the SIS Act to replace the words under the common or official seal of with signed by. The purpose of this amendment is to remove the requirement for the corporate trustee of an employer-sponsored superannuation fund that elects to be treated as a public offer fund to include its common or official seal on the election notice. Changes to the Corporations Law have removed the requirement for companies to have common or official seals, and this amendment reflects that change. The trustee will still be required to sign the election notice in a way which will be effective in law and bind the trustee (see item 4).
Removal of Requirement for Common or Official Seal
13.23 This item amends subsection 19(4) of the SIS Act to remove the requirement for a corporate trustee of a superannuation fund that elects to be a regulated superannuation fund to include its common or official seal on the election notice. Changes to the Corporations Law have removed the requirement for companies to have common or official seals, and this amendment reflects that change. The corporate trustee will still be required to sign the election notice in a way which will be effective in law and bind the trustee (see item 4).
Repeal of subsections 36A(4), (5) and (6)
13.24 This item repeals subsections 36A(4), 36A(5) and 36A(6) of the SIS Act. The requirements of these provisions are now contained in section 11A of the Act (item 5).
13.25 This item amends subsection 131A(1) of the SIS Act to remove a redundant reference to former subsection 346(6B) of that Act, and to insert a note drawing attention to secrecy requirements in section 56 of the APRA Act and section 252C of the SIS Act.
Amendment of subsection 140(2) of the SIS Act
13.26 This item amends subsection 140(2) of the SIS Act removing the reference to ASIC. Responsibility for approving the form of notice required under section 140 will now rest with APRA (see also items 1 and 2).
Amendment of subsection 254(1) of the SIS Act
13.27 This item amends subsection 254(1) of the SIS Act to remove the requirement that the information required under the subsection be prescribed in the regulations. The removal of this requirement is to provide greater flexibility should it be necessary to alter the type or range of information required. However, APRA (or such other body specified in the regulations) will still be required to inform trustees of the information required. This will be done by specifying the information required on an approved form.
Note following subsection 254(1) of the SIS Act
13.28 This item repeals and substitutes the note that follows subsection 254(1) of the SIS Act. The note now says that the approved form, rather than the prescribed information, may require the tax file number of the superannuation entity. This amendment is consequential to the amendment to subsection 254(1) (item 11).
Amendment of subsection 299U(8)
13.29 This item amends subsection 299U(8) of the SIS Act to provide that the approved form under subsection 254(1) may require the tax file number of the superannuation entity to be given. This change is consequential to the amendment to subsection 254(1) (item 11).