Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012 (171 of 2012)

Schedule 3   Collection and disclosure of information

Part 1   Amendments

Corporations Act 2001

14   After section 1021N

Insert:

1021NA Offences relating to obligation to make product dashboard publicly available

Failure to comply with obligation to make product dashboard publicly available

(1) A person commits an offence if:

(a) the person is a trustee of a regulated superannuation fund; and

(b) as trustee, the person is required, under section 1017BA, to ensure that a product dashboard for each of the fund's MySuper products and choice products is made publicly available on the fund's website; and

(c) a product dashboard for each of the fund's MySuper products and choice products is not made publicly available as required by that section.

Offence where information known to be defective

(2) A person commits an offence if:

(a) the person is a trustee of a regulated superannuation fund; and

(b) a product dashboard is made publicly available on the fund's website in purported compliance with section 1017BA; and

(c) the person knows that:

(i) the information set out in the product dashboard has not been updated as required by that section; or

(ii) the information set out in the product dashboard is otherwise misleading or deceptive; or

(iii) there is an omission from the information set out in the product dashboard.

Offence whether or not information known to be defective

(3) A person commits an offence if:

(a) the person is a trustee of a regulated superannuation fund; and

(b) a product dashboard is made publicly available on the fund's website in purported compliance with section 1017BA; and

(c) either:

(i) the information set out in the product dashboard has not been updated as required by that section; or

(ii) the information set out in the product dashboard is otherwise misleading or deceptive; or

(iii) there is an omission from the information set out in the product dashboard.

(4) For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in any of subparagraphs (3)(c)(i) to (iii).

Note: For strict liability, see section 6.1 of the Criminal Code.

Defences

(5) In any proceedings against a trustee of a regulated superannuation fund for an offence based on subparagraph (2)(c)(iii) or (3)(c)(iii), it is a defence if:

(a) the trustee or another trustee of the fund took reasonable steps to ensure that there would not be an omission from the information set out in the product dashboard; or

(b) both of the following apply:

(i) the information was omitted because it was not up to date;

(ii) the trustee or another trustee of the fund took reasonable steps to obtain up-to-date information; or

(c) both of the following apply:

(i) the information was omitted because it would have been misleading or deceptive;

(ii) the trustee or another trustee of the fund took reasonable steps to obtain information that would not have been misleading or deceptive.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code.

(6) In any proceedings against a trustee of a regulated superannuation fund for an offence based on subparagraph (3)(c)(i), it is a defence if the trustee or another trustee of the fund took reasonable steps to ensure that the information set out in the product dashboard was updated as required by section 1017BA.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the Criminal Code.

(7) In any proceedings against a trustee of a regulated superannuation fund for an offence based on subparagraph (3)(c)(ii), it is a defence if the trustee or another trustee of the fund took reasonable steps to ensure that the information set out in the product dashboard would not be misleading or deceptive.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7). See subsection 13.3(3) of the Criminal Code.

1021NB Offences relating to obligation to make superannuation investment information publicly available

Failure to comply with obligation to make information publicly available

(1) A person commits an offence if:

(a) the person is a trustee of a registrable superannuation entity; and

(b) as trustee, the person is required, under section 1017BB, to make information publicly available on the entity's website; and

(c) the information is not made publicly available as required by that section.

Offence where information known to be defective

(2) A person commits an offence if:

(a) the person is a trustee of a registrable superannuation entity; and

(b) as trustee, the person is required, under section 1017BB, to make information publicly available; and

(c) information is made publicly available in purported compliance with that requirement; and

(d) the trustee knows that:

(i) the information is misleading or deceptive; or

(ii) there is an omission from the information.

Offence whether or not information known to be defective

(3) A person commits an offence if:

(a) the person is a trustee of a registrable superannuation entity; and

(b) as trustee, the person is required, under section 1017BB, to make information publicly available; and

(c) information is made publicly available in purported compliance with that requirement; and

(d) either:

(i) the information is misleading or deceptive; or

(ii) there is an omission from the information.

(4) For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in subparagraph (3)(d)(i) or (ii).

Note: For strict liability, see section 6.1 of the Criminal Code.

Defences

(5) In any proceedings against a trustee of a registrable superannuation entity for an offence based on subsection (1), it is a defence if the information would have been made publicly available but for the fact that the trustee or another trustee of the entity was unable to obtain the information after taking reasonable steps to do so.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code.

(6) In any proceedings against a trustee of a registrable superannuation entity for an offence based on subparagraph (2)(d)(ii) or (3)(d)(ii), it is a defence if:

(a) there was an omission from the information made publicly available because the trustee or another trustee of the entity was unable to obtain the information after taking reasonable steps to do so; or

(b) both of the following apply:

(i) the information was omitted because it would have been misleading or deceptive;

(ii) the trustee or another trustee of the entity took reasonable steps to obtain information that would not have been misleading or deceptive.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the Criminal Code.

(7) In any proceedings against a trustee of a registrable superannuation entity for an offence based on subparagraph (3)(d)(i), it is a defence if the trustee or another trustee of the entity took reasonable steps to ensure that the information made publicly available would not be misleading or deceptive.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7). See subsection 13.3(3) of the Criminal Code.

1021NC Offences relating to obligations under sections 1017BC, 1017BD and 1017BE

Failure to notify

(1) A person commits an offence if:

(a) the person is required to notify another person under subsection 1017BC(2) or (4) or section 1017BD or 1017BE; and

(b) the person does not notify, and is not taken to have notified, the other person as required by that provision.

Failure to provide information

(2) A person commits an offence if:

(a) the person is required to provide another person with information under subsection 1017BC(3); and

(b) the person does not provide the other person with the information as required by that subsection.

Information provided known to be defective

(3) A person commits an offence if:

(a) the person:

(i) notifies another person of information as required by subsection 1017BC(2) or (4) or section 1017BD or 1017BE; or

(ii) provides information (whether in a document or otherwise) to another person as required by subsection 1017BC(3); and

(b) the person knows that:

(i) the information provided is misleading or deceptive; or

(ii) there is an omission from the information provided.

Information provided defective

(4) A person commits an offence if:

(a) the person:

(i) notifies another person of information as required by subsection 1017BC(2) or (4) or section 1017BD or 1017BE; or

(ii) provides information (whether in a document or otherwise) to another person as required by subsection 1017BC(3); and

(b) either:

(i) the information provided is misleading or deceptive; or

(ii) there is an omission from the information provided.

(5) For the purposes of an offence based on subsection (4), strict liability applies to the physical element of the offence specified in subparagraph (4)(b)(i) or (ii).

Note: For strict liability, see section 6.1 of the Criminal Code.

Defences

(6) In any proceedings against a person for an offence based on subparagraph (3)(b)(ii) or (4)(b)(ii), it is a defence if:

(a) the person took reasonable steps to ensure that there would not be an omission from the information provided; or

(b) both of the following apply:

(i) the information was omitted because it would have been misleading or deceptive;

(ii) the person took reasonable steps to obtain information that would not have been misleading or deceptive.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the Criminal Code.

(7) In any proceedings against a person for an offence based on subparagraph (4)(b)(i), it is a defence if the person took reasonable steps to ensure that the information provided would not be misleading or deceptive.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7). See subsection 13.3(3) of the Criminal Code.